HomeMy WebLinkAboutNovember 15, 2005 Agenda AGENDA
CITY OF DENTON CITY COUNCIL
November 15, 2005
After determining that a quorum is present, the City Council of the City of Denton, Texas will
convene in a Work Session on Tuesday, November 15, 2005 at 4:00 p.m. in the Council Work
Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items
will be considered:
1. Hold a discussion and give staff direction regarding the 2006 Council meeting schedule.
2. Receive a report, hold a discussion and give staff direction regarding the Denton Public
Art Policy Process.
3. Receive a report, hold a discussion and give staff direction on the funding of LEED
certification for Fire Station #7.
4. Requests for clarification of consent agenda items listed on the consent agenda for today's
City Council regular meeting of November 15, 2005.
Following the completion of the Work Session, the City Council will convene in a Closed
Meeting to consider specific items when these items are listed below under the Closed Meeting
section of this agenda. When items for consideration are not listed under the Closed Meeting
section of the agenda, the City Council will not conduct a Closed Meeting and will convene at
the time listed below for its regular or special called meeting. The City Council reserves the
right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with
Chapter 551 of the TEXAS GOVERNMENT CODE, as amended, as set forth below.
1. Closed Meeting:
A. Consultation with Attorney—Under Texas Government Code Section 551.071 -
1. Consultation with the City's attorneys regarding legal issues associated
with annexation of real property in the City's northern ETJ, under
annexation case no. A05-0002, along with other legal issues related to the
annexation, including zoning, land use and subdivision controls,
annexation plans, development agreements, annexation agreements,
service plans, utility service, and legal issues implicated by alternative
proposals advanced by individuals owning property within the proposed
annexation area. A public discussion of these legal matters would conflict
with the duty of the City's attorneys to the City Council under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of Texas or
would jeopardize the City's legal position in any administrative
proceedings or potential litigation.
B. Deliberations regarding Real Property Under Texas Government Code Section
551.072 and Consultation with Attorney Under Texas Government Code
Section 551.071.
1. Deliberate the purchase and value of real property interests for the
proposed Downtown Multimodal Station and Catalyst Project and the
City of Denton City Council Agenda
November 15, 2005
Page 2
proposed South Transit Station in the MayhillBrinker Road area, which
acquisitions are for public purposes. Receive legal advice from the City
Attorney or his staff concerning legal issues regarding the acquisition
and/or condemnation of such real property interests.
ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A
CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN
COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE
EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED
MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS
GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION'). THE CITY COUNCIL
RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE
SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SE Q. (THE TEXAS
OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO
RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED
MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN
MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071-551.086 OF THE
TEXAS OPEN MEETINGS ACT.
Following the completion of the Closed Meeting, the City Council will meet with Leadership
Denton.
Regular Meeting of the City of Denton City Council on Tuesday, November 15, 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. PROCLAMATIONS/PRESENTATIONS
A. Proclamations/Awards
B. November Yard-of-the-Month Awards
C. Recognition of staff accomplishments
3. CONSENT AGENDA
Each of these items is recommended by the Staff and approval thereof will be strictly on
the basis of the Staff recommendations. Approval of the 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.
City of Denton City Council Agenda
November 15, 2005
Page 3
Listed below are bids, purchase orders, contracts, and other items to be approved under
the Consent Agenda (Agenda Items A — L). 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—L below will be approved with one motion. If
items are pulled for separate discussion, they will be considered as the first items following
approval of the Consent Agenda.
A. Consider adoption of an ordinance of the City of Denton, Texas amending the
provisions of Chapter 6, Section 18 regarding the adoption of dogs, cats, and
ferrets; providing for a severability clause; providing a repealer clause; providing
for a savings clause; providing for a penalty not to exceed $500 for violations of
this ordinance; and providing for an effective date.
B. Consider adoption of an ordinance amending Ordinance No. 2001-338 to
establish an adoption fee for dogs at one hundred twenty dollars ($120), an
adoption fee for cats at one hundred and ten dollars ($110), and an adoption fee
for ferrets at ten dollars ($10) pursuant to Chapter 6 of the code of ordinances of
the City of Denton, Texas; providing that a schedule of fees shall be maintained
on file in the office of the City Secretary; providing a savings clause; providing a
severability clause; and providing an effective date.
C. Consider adoption of an ordinance authorizing the City Manager to execute a
Professional Services Agreement with the firm of Southridge Animal Hospital to
provide sterilization and rabies vaccination services for the City of Denton
Animal Services Center; authorizing the collection of funds therefor as reflected
in the fee ordinance; and providing an effective date.
D. Consider adoption of an ordinance accepting competitive proposals and awarding
a best value annual contract for operation of an automated traffic signal
enforcement program; providing for the expenditure of funds therefor; and
providing an effective date (RFP 3364—Automated Traffic Signal Enforcement
System awarded to Redflex Traffic Systems USA).
E. Consider adoption of an ordinance accepting competitive proposals and awarding
a contract for the purchase of fencing materials for the Lake Forest Dog Park;
providing for the expenditure of funds therefor; and providing an effective date
(RFP 3402—Lake Forest Dog Park Fencing awarded to Hurricane Fence in the
amount of$25,144.48).
F. Consider adoption of an ordinance authorizing the Mayor to execute an amended
agreement between the City of Denton and the Denton County Historical
Commission, Inc. for the payment and use of hotel tax revenue; and providing an
effective date.
G. Consider adoption of an ordinance of the City of Denton, Texas terminating that
certain airport lease dated November 2, 2004, by and between the City of Denton,
Texas and Terrence Jarog, authorizing the City Attorney or his designee to take
appropriate legal action if necessary, to effectuate the termination, and providing
an effective date. The Airport Advisory Board recommends approval (5-0).
City of Denton City Council Agenda
November 15, 2005
Page 4
H. Consider and confirm the appointment by the City Manager of a new member to
the Civil Service Commission.
I. Consider adoption of an ordinance authorizing the City Manager to execute an
Interlocal Agreement with the DENCO Area 9-1-1 District for the purpose of
establishing the Denton Police Department as the primary public safety
answering point (PSAP) within the DENCO enhanced 9-1-1 system; and
providing for an effective date.
J. Consider adoption of an ordinance of the City Council of the City of Denton,
Texas, authorizing the City Manager to pay the City's annual consolidated water
quality fees for FY 2006 to the Texas Commission on Environmental Quality;
authorizing the expenditure of funds therefor; providing an effective date. (The
Public Utilities Board will consider this item at their November 14th meeting.)
K. Consider approval of a resolution granting recognition of Local 1291 of the
International Association of Fire Fighters as the sole and exclusive bargaining
agent for the non-exempt Denton firefighters, and authorizing the City of Denton
to meet and confer with the association under Subchapter C of Chapter 142 of the
Texas Local Government Code without conducting an election.
L. Consider approval of a resolution reviewing and adopting the Investment Policy
for funds for the City of Denton; designating an investment officer; providing a
savings and a repealing clause; and providing an effective date.
4. PUBLIC HEARINGS
A. Hold a public hearing and consider adoption of an ordinance regarding a request
for a Specific Use Permit for approximately 0.904 acres to allow a drive-through
facility. The site is in a Neighborhood Residential Mixed Use (NRMU) zoning
district. The subject property is generally located at the southeast corner of
Sundown Blvd. and Teasley Lane. A bank with a drive-through is proposed. The
Planning and Zoning Commission recommends approval (7-0). (S05-0001,
Northstar Bank)
5. ITEMS FOR INDIVIDUAL CONSIDERATION
A. Consider adoption of an ordinance of the City of Denton approving a lease
agreement between the City of Denton and John Eric Schmitz for the lease of a
portion of street right-of-way for the construction, occupancy and maintenance of
a porch area in conjunction with a business located at the northeast corner of
Walnut and Cedar Streets, which is commonly known as 209 W. Hickory Street,
Denton, Texas; and providing an effective date.
B. Consider approving an exaction variance of Section 35.20.3.13 of the Denton
Development Code concerning sidewalks. The approximately 0.35 acres of
property is generally located at the northeast corner of McKinney Street and
Wood Street intersection. The Planning and Zoning Commission recommends
approval (6-0). (V05-0022, Klement Laundry)
City of Denton City Council Agenda
November 15, 2005
Page 5
C. Consider a variance of Section 35.20.2.L.2 of the Denton Development Code
concerning perimeter streets along McKinney Street. The approximately 0.35
acres of property is generally located at the northeast corner of McKinney Street
and Wood Street intersection. The Planning and Zoning Commission
recommends approval (6-0). (V05-0023, Klement Laundry)
D. Consider a variance of Section 35.20.2.L.2 of the Denton Development Code
concerning perimeter streets along Wood Street. The approximately 0.35 acres of
property is generally located at the northeast corner of McKinney Street and
Wood Street intersection. The Planning and Zoning Commission recommends
approval (6-0). (V05-0024, Klement Laundry)
E. Consider approval of a resolution casting votes for membership to the Board of
Directors of the Denton Central Appraisal District; and declaring an effective
date.
F. Consider approval of a resolution nominating members to the Appraisal Review
Board of the Denton Central Appraisal District; and declaring an effective date.
G. Consider adoption of an ordinance of the City of Denton, Texas, denying the
request of INC Partners Denton, LLC dated November 1, 2005 for inclusion in a
three-year annexation plan related to Annexation Case No. A05-0002 and
declining its request for arbitration; and providing an effective date.
H. Citizen Reports
1. Review of procedures for addressing the City Council.
2. Receive citizen reports from the following:
A. Dr. John Paul Eddy regarding a smoking ban in the Civic Center
and the Center for Visual Arts.
B. Ed Soph regarding continuing concerns about Eureka!
I. New Business
This item provides a section for Council Members to suggest items for future
agendas or to request information from the City Manager.
J. Items from the City Manager
1. Notification of upcoming meetings and/or conferences
2. Clarification of items on the agenda
K. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the
Texas Open Meetings Act.
L. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the
Texas Open Meetings Act.
City of Denton City Council Agenda
November 15, 2005
Page 6
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: November 15, 2005
DEPARTMENT: City Manager's Office
CM: Mike Conduff, City Manager
SUBJECT
Hold a discussion and give staff direction regarding the 2006 Council meeting schedule.
BACKGROUND
Looking forward to the 2006 calendar year, the 2006 City Council Calendar has been prepared
for Council consideration allowing for 5th Tuesdays and conference schedules. Staff has worked
to provide you with adequate time to discuss the issues you have brought forward as needing
Council attention. It is our goal not only to schedule those items you have already listed as being
your priorities for discussion, but to identify ample time throughout the year outside the Council
work sessions and business meetings the first and third Tuesdays of the month, per charter
provisions, to address council requests as you bring them to our attention.
Respectfully submitted:
Jennifer Walters
City Secretary
Draft
2006 CITY COUNCIL MEETING DATES
January 2 No Luncheon New Year's Day Holiday
January 3 Work/Regular Session
January 10 2nd Tuesday Session
January 17 Work/Regular Session
January 24 No Meeting USCM, Washington, DC, 1/25-27
January 31 No Meeting
February 6 Luncheon
February 7 Work/Regular Session AMCC, Corpus Christi, 2110-12
February 14 2nd Tuesday Session
February 21 Work/Regular Session
February 28 No Meeting
March 6 Luncheon
March 7 Work/Regular Session
March 14 No Meeting NLC, Washington, DC, 3/11-15, Spring Break, 3/13-17
March 21 Work/Regular Session
March 28 No Meeting
Apri13 Luncheon
April 4 Work/Regular Session
April 11 2nd Tuesday Session
April 18 Work/Regular Session
April 25 No Meeting
May 1 Luncheon
May 2 Work/Regular Session
May 9 2nd Tuesday Session
May 16 SC Work/Regular Session
May 23 Election Meeting Installation of CC Members Only
May 30 No Meeting
June 5 Luncheon TCMA, Corpus Christi, 6/2-5
June 6 Work/Regular Session USCM, Las Vegas, NV, 6/2-6
June 13 2nd Tuesday Session
June 20 Work/Regular Session
June 27 No Meeting
July 3 No Luncheon Council Recess
July 4 No Meeting July 4th Holiday
July 11 No Meeting Council Recess
July 18 Work/Regular Session
July 25 SC Work/Regular Session
August 1 Work/Regular Session
August 7 Luncheon
August 8 2nd Tuesday Session
August 15 Work/Regular Session
August 22 No Meeting
August 29 No Meeting
Draft
2006 CITY COUNCIL MEETING DATES
September 4 No Luncheon Labor Day Holiday
September 5 Work/Regular Session
September 12 2nd Tuesday Session ICMA, San Antonio, 9/10-13
September 19 Work/Regular Session
September 26 No Meeting
October 2 Luncheon
October 3 Work/Regular Session
October 10 2nd Tuesday Session
October 17 Work/Regular Session
October 24 No Meeting TML,Austin, 10/25-28
October 31 No Meeting
November 6 Luncheon
November 7 Work/Regular Session
November 14 2nd Tuesday Session
November 21 No Meeting Thanksgiving Holiday, 11/23-24
November 28 No Meeting
December 4 Luncheon
December 5 Work/Regular Session NLC, Reno, NV, 12/5-9
December 12 SC Work/Regular Session
December 19 No Meeting
December 26 No Meeting Christmas Holiday, 12/25&26
SALists12006 CC Mtg Dates.doc
[Revised 11/07/05
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Parks and Recreation Department
ACM: Howard Martin, 349-8232
SUBJECT
Receive a report, hold a discussion and give staff direction regarding the Denton Public Art
Policy Process.
BACKGROUND
Public art is a mirror that reflects the local environment, cultural values, and artistic vitality of a
community in which it exists. At its best, public art is more than just art installed in public
places. It is art that involves "the public." It is a community-based process of dialogue,
involvement, and participation. Public Art enhances the quality of life for citizens by
encouraging a heightened sense of place, enhancing a community's prestige, and enlivening the
visual quality of the built environment.
Economically successful cities share certain traits, among them is the recognition that an
aesthetically appealing community has a clear advantage in attracting and keeping businesses
and the people they employ. Public art is entwined with economic development and quality of
community life.
Across the country and in numerous Texas cities, public art policies provide the framework to
guide a city's comprehensive approach to public art. The underlying objective of most public art
policies is to enrich the cultural and intellectual life of the community by building and
maintaining a unique collection of public art that can be accessed, enjoyed and appreciated by a
large number of people including residents, visitors, and tourists. Most policies outline a
community vision, and define goals and objectives. A few of the most common objectives
include, but are not limited to:
• a strategic approach to commissioning and placement of public art,
• establishing mechanism(s)for funding public art,
• effective and efficient management of public art, and
• adequate funding for the ongoing maintenance of public art.
Once a public art policy is in place, a public art plan or public art program is developed detailing
the strategies to implement policy objectives.
Public art is referenced in The Denton Plan as a key design element in achieving quality urban
environment. It states that, "Public art provides a number of benefits to the city. It can create
interest, create local distinctiveness, provide a memorable image associated with the city or
I
certain districts within the city, lend character to urban spaces, and make the urban environment
more attractive."
Goals for Public Art are established both in the Urban Design and Streets section of The Denton
Plan and include:
➢ Urban Design
• The provision of public art will normally be expected as part of any large
development scheme.
• Public art should be considered as an integral part of the design of spaces in and
around development.
• Encouragement is given to the involvement of commission experts, so that
opportunities are available to a wide range of artistic talent.
➢ The Street
o Adopt standards to guide placement of art in public places, such as landmarks,
view corridors, pockets, traffic circles and other locations of prominent stature.
Public art was addressed as part of "A Vision For Denton" and more recently in the white paper
presented to the City Council in January 2004 on Community Aesthetics.
Historically, the City of Denton has received donations and commissioned numerous pieces of
art related to various capital construction projects that included indoor and outdoor public
facilities. Each art project involved a unique process and selection, however, there has never
been an established policy on how the City of Denton accepts, selects, commissions, places,
maintains and manages public art.
OPTIONS
Council may direct staff to initiate a process to research and develop a public art policy for the
City of Denton, provide additional information to the Council for consideration, or postpone the
development of a public art policy at this time.
RECOMMENDATION
Staff recommendation is to coordinate the development of a public art policy as a public/private
cooperative with the Greater Denton Arts Council. As part of that process, a Public Art Policy
Task Force would be formed to guide the development of the policy and insure input from a
broad spectrum of public and private stakeholders.
The scope of the task force would initially focus on the development of a public art policy,
however, Council could charge the task force with a broader scope of responsibility, possibly
including an Art Maser Plan for Denton.
The following is a proposed process and schedule, along with the proposed composition of the
task force.
Public Art Policy Development Proposed Process
November 7, 2005 Parks, Recreation and Beautification Board reviews policy
development process as Discussion Item.
2
November 15, 2005 City Council reviews policy development in Work Session
November 25, 2005 Public Art Policy Task Force selection is completed
February 2006 Public Art Policy Task Force completes draft policy
February 2006 Review by Parks, Recreation and Beautification Board and
City Council in Work Session
March 2006 Parks, Recreation and Beautification Board makes final
recommendation to City Council
March/April 2006 City Council final consideration of Public Art Policy
Public Art Policy Development Task Force—Proposed Composition
Parks and Recreation Department Director
Parks, Recreation and Beautification Board
Greater Denton Arts Council Director
Greater Denton Arts Council Board
Local Artists
Visual Arts Society of Texas
The Arts Guild
Texas Woman's University Department of Visual Arts
UNT Department of Visual Arts
Economic Development Partnership Board
Image & Marketing Task Force
Leadership Denton Class (ad hoc member)
ESTIMATED PROJECT SCHEDULE
Final consideration of a Public Art Policy is projected for March 2006.
PRIOR ACTION/REVIEW
The Parks, Recreation and Beautification Board reviewed this item at the November 7, 2005
meeting.
No action was required.
FISCAL INFORMATION
NA
EXHIBITS
1. Survey of Regional City Public Art Programs
Respectfully submitted:
........................................................
Janet Fitzgerald, Director
Parks and Recreation Department
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AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Fire Department
if
CM/DCM/ACM: Jon Fortune,Assistant City Manager
SUBJECT:
Receive a report, hold a discussion and receive direction on the funding of LEED
certification for Fire Station #7.
BACKGROUND:
The City has purchased 88 acres in the southwest portion of the City to construct a fire
station and training facility. Architect James Kirkpatrick in conjunction with the Fire
Department planning committee has nearly completed the design process for this fire station.
Due to the significant amount of discussion of constructing a "green" fire station that meets
more stringent environmental standards than what the current codes require, Staff is
requesting discussion and direction from the City Council.
Before Mr. Kirkpatrick and the Fire Department complete final design and go out for
construction bids, Staff would like direction from the City Council if the City should pursue
specialized certification from Leadership in Energy and Environmental Design (LEED®).
The cost to accomplish this is approximately $302,925 as determined by the attached "LEED
Project Checklist for Fire Station #7." If the City Council desires LEED certification for
station #7, a funding source will need to be identified.
What is LEED Certification?
A key tool in building green is a voluntary certification known as Leadership in Energy and
Environmental Design (LEED®), a program launched by the U.S. Green Building Council
representing all segments of the building industry in 1998.
The LEED Green Building Rating System is a voluntary, consensus-based national standard
for developing high-performance, sustainable buildings. Sustainability is ecologically
compatible design with a natural systems approach based on a dynamic system of values that
will continually redefine itself over time. LEED was established to accomplish the following
goals:
• Define "green building" by establishing a common standard of measurement.
• Promote integrated, whole building design practices.
• Recognize environmental leadership in the building industry.
• Stimulate green competition.
Page 1 of 6
■ Raise consumer awareness of green building benefits.
LEED has quickly become recognized as a "best practices" standard for green building
design and operations. Used in the commercial, institutional and residential building markets,
the LEED system is a complete framework for planning and assessing a building's
performance and environmental sustainability. The LEED system recognizes achievements
and promotes expertise in green building through a comprehensive system of project
certification, professional accreditation, training and practical resources. LEED certification
emphasizes state-of-the-art strategies for sustainable site development, water savings, energy
efficiency, materials selection and indoor environmental quality. LEED is a flexible, point-
driven certification of buildings that sets values for design features, construction processes
and energy use. LEED organizes green building measurements into six specific categories by
which sustainable design can be measured. The attached "LEED Project Checklist for Fire
Station#7" shows the complete breakdown of all six categories and the credits in each.
1. Sustainable sites
2. Water efficiency
3. Energy and atmosphere
4. Indoor environmental quality
5. Materials and resources
6. Innovation and design
What are the Benefits of a LEED Certified Fire Station?
LEED certification offers the opportunity to create an environmentally sound and resource-
efficient fire station by using an integrated approach to design that is sensitive to natural
resources and their protection. Productivity savings that could be realized are very
significant for fire stations because the building is used 24 hours a day, 7 days a week.
As energy costs continue to rise, so does the popularity in green buildings. This new
direction in building is designed to conserve energy, building materials, land and more while
providing tenants with a better place to live and work. It is not only good for the
environment, but also has other significant benefits: cost savings from reduced energy and
water use; reduced waste; lower operations and maintenance costs; and enhanced occupant
productivity and health.
A healthful environment at the fire station enhances the health and well being of the crews
who live and work there for twenty-four hours at a time. Specifying construction materials
and interior-finish products with zero or low emissions improves indoor air quality. Many
building materials and cleaning/maintenance products emit toxic gases, like formaldehyde,
which can have a negative effect on firefighters' health and productivity. Selecting materials
resistant to microbial growth can prevent microbial contamination. Adequate ventilation,
heating and cooling systems promote comfortable work and living environments.
Page 2 of 6
What are the Potential Cost Savings for LEED Certification?
According to a 2004 study of LEED by the U.S. General Services Administration, initial
investments in environmentally efficient building technologies often pay for themselves
within a facility's first few years of operation. Many green building options require an up-
front investment that produces benefits spread out over the life cycle of a building. It is
critical, therefore, to take a life cycle perspective in analyzing the costs and benefits of green
buildings.
The Fire Department's strategic plan suggests a life cycle for a fire station of at least twenty-
five years. In addition to significant economic savings associated with worker productivity
increases, the use of salvaged materials, water efficient landscaping, and increased energy
efficiency will pay substantial dividends to the City in the long term.
Two of the most obvious and significant operating costs affected by green options are the
costs of energy use and water use. Several green options for Fire Station #7 have the
potential to affect energy use and, consequently energy costs of operating the building.
Energy costs can be calculated by multiplying electric and natural gas (and any other form of
energy used in the building) rates by the amount of energy used and adding any fixed energy
costs.
One of the biggest challenges to creating sustainable designs is the perception of upfront
costs versus long-term operations and maintenance costs. Some green products are more
expensive than their less sustainable counterparts. In some cases, design costs can be higher
when specifying new technologies that require more time to evaluate quality and durability.
In reality, design and construction only represent a small portion of the building's lifetime
costs. Recognizing this, the City of Seattle recently adopted an ordinance that specifies city-
owned buildings, including fire stations and a public safety training facility, to be designed
and constructed to meet sustainable design (LEED) requirements. "It is difficult to quantify
dollar value on quality of space how do you quantify the intangibles such as sense of
pride, better performance and comfort? This is a huge issue," said Darrell Turner, architect
and project manager for the city of Seattle's Joint Public Safety Training Facility, a project
that is being designed to meet the requirements for a silver LEED certification.
The initial cost impacts that we anticipate analyzing on an incremental basis include at least
the following:
• Higher costs of more energy-efficient equipment or materials.
• Higher costs of water conserving equipment.
• Reduced costs of hauling and landfilling construction materials.
• Higher costs of recycled, local, and environmentally certified materials.
• Higher costs of less polluting, less harmful materials.
• Building system commissioning costs.
Page 3 of 6
A comprehensive analysis of green buildings in Portland Oregon, "Green City Buildings:
Applying the LEED Rating System," in June 2000, estimated the energy consumption
savings for a LEED certified fire station to be at least 30%. The biggest potential payoff for
Portland, however, was the probable improvements in productivity of the building occupants.
These would result from better lighting, airflow, indoor air quality, etc., which would
improve worker comfort and reduce complaints, absenteeism, and health problems. The
study noted, "The current argument for green buildings promotes the idea that investments
will pay off in the long run due to enhanced health and productivity of the workforce." It
also pointed out that direct measures of productivity might be inadequate to encompass the
effect of green buildings on performance; for example, customer satisfaction, employee
retention, and employee attitudes about work and the city may be less tangible, but
nevertheless important dimensions of quantifying green building effects. Portland estimated
total overall life cycle savings would have been about 15% of the original construction cost
with LEED certification.
Portland felt they could reduce long-term operating and capital costs based on life cycle cost
savings, increase energy efficiency, protect and enhance the environment, and reduce
environmental impact. "We determined that we wanted to lead by example, and it was the
city's turn to step up," stated City Council Member Nancy Davidson. Other than options that
increase productivity, Portland identified these primary opportunities to reduce life cycle
costs:
• Measures to improve energy efficiency
• Measures that reduce water consumption
• Use of salvaged materials
According to an October 2003 report, "The Costs and Financial Benefits of Green
Buildings," issued by California's Sustainable Building Task Force, a minimal increase in
upfront costs of about 2 percent would result in life cycle savings of 20 percent of total
construction costs. This is 10 times the original investment. The report determined that
ecologically compatible practices can reduce life-cycle costs, saving on long-term energy and
operating costs. When owners and stakeholders understand this, they are more receptive to
higher upfront capital costs.
The following chart from the California report was developed from an aggregation of data on
actual or modeled costs for 33 green buildings and largely derived from extensive
conversations with architects, developers and others. They identified that the financial
benefits of green buildings include lower energy, waste, and water costs, lower
environmental and emissions costs, lower operations and maintenance costs, and savings
from increased productivity and health. These benefits range from being fairly predictable
(energy, waste and water savings) to relatively uncertain (productivity/health benefits).
Energy and water savings can be predicted with reasonable precision, measured, and
monitored over time. In contrast, the report stated that productivity and health gains are
much less precisely understood and far harder to predict with accuracy. This is due in part to
the complexity of human health and performance issues, the large range in human reactions
Page 4 of 6
to indoor environmental quality changes, and the large range of ways that improvements can
show up, including lowered insured or uninsured health costs, lower employee turnover or
increased productivity. They estimated the significant value of the productivity and health of
employees to be $36.89 per square foot over a 20-year life cycle.
M M
Category 20-year Savings per
Square Foot
Energy Value $5.79
Emissions Value $1.18
Water Value $0.51
Waste Value (construction only— 1 year) $0.03
Productivity and Health Value $36.89
O & M Value $8.47
Total 20-Year Cost Savings Per Square Foot $48.87
Table 1
Using the previous comprehensive studies of LEED certified facilities and the potential
future energy cost savings in Denton, Staff estimates that the savings would be as follows if
the City of Denton LEED certified Fire Station #7 with a total square footage of 15,954.
Energy savings were determined by starting with Staff s original estimate of annual utility
costs of $36,480 with an inflation factor of 5% per year for 25 years. The energy value of
30% was taken from the total 25-year total. The attached "LEED Project Checklist for Fire
Station #7" lists many of the benefits of LEED certification, many of which fit into the
productivity and health value. It lists $42,000 of potential water savings due to reduced
irrigation. The productivity and health value is figured but not added into the potential
savings due to the subjectivity of the cost savings.
Category 25-year Savings
Energy Savings at 30% $559,386
Emissions Value (@$1.18/sq ft) $18,826
Water Value ("LEED Project Checklist for Fire Station#7') $42,000
Waste Value (construction only— 1 year) (@$0.03/sq ft) $479
O & M Value (@$8.47/sq ft) $135,130
Total 25-Year Potential Cost Savings $755,821
Productivity and Health Value ( $36.89/sq ft) $588,543
Table 2
PREVIOUS COMMITTEE ACTIONS:
On October 24, 2005 the Committee on the Environment determined the additional costs for
LEED certification to be worthwhile to pursue and recommended that Staff bring the issue to
the City Council for discussion and direction. The Committee on the Environment directed
Staff to provide a more comprehensive study on the potential cost savings for Council
consideration. It also identified a possible funding source as the Environmentally Preferable
Purchasing program.
Page 5 of 6
RECOMMENDATION:
Staff believes that providing additional funds for Fire Station #7 to accomplish Silver LEED
certification is in the best interests of the community and the Fire Department members who
will occupy the facility. Therefore, Staff recommends the City Council use the
Environmentally Preferable Purchasing program to fund the additional costs to certify Fire
Station#7 to LEED Silver.
FISCAL INFORMATION:
The original budget of $2.5 million to construct the fire station did not include the funds to
accomplish LEED certification. The attached cost estimate for Fire Station #7 shows an
estimated total cost of$2,920,523, which includes $241,550 for LEED certification costs, but
does not include the $61,375 administrative and engineering costs that make up the total
$302,925 for LEED certification. The approved construction budget for Fire Station #7
which was estimated more than two years ago before the current significant increases in
construction costs, especially steel and wood, is $2,500,000. Therefore, the LEED
certification cost of $302,925 is approximately 12.1% of the budgeted cost or 10.2% of the
total current estimated project cost of$2,981,898.
Keep in mind that the Portland study estimated savings of 15% of the original construction
costs over the life cycle of its fire stations. Using the 15% would save approximately
$435,000 for Station #7. California also estimated a life cycle cost savings of 20% of the
total construction costs on LEED certified facilities. Using the 20% would save
approximately $580,000 for Station #7. The potential savings identified in Table 2 are
$755,821 with an additional health and productivity benefit estimated at$588,543.
The key point to be made is that there clearly will be substantial cost savings over the life
cycle of Fire Station#7 —more than the additional costs to do the LEED certification.
If you have any questions please give me a call at 349.8830.
Respectfully Submitted:
0 A"'Ww- - -�-:I-- - I I
Ross Chadwick
Fire Chief
Attachments:
LEED Project Checklist for Fire Station#7
Cost Estimate for Fire Station#7
Page 6 of 6
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Fire Station No.7 Total Page 1
Denton,Texas Enclosed Area Bldg Area
First Floor 15,171
Electric Mezzanine 783
15,954 sf
Kirkpatrick Architecture Studio, I CES-Computerized Estimating Services
100 W. Mulberry 2823 VZ CR 1222
Denton,Texas 76201 Grand Saline,Texas 75140 File#-158
940-387-8182 800-705-7595 Plan#- 2
James Kirkpatrick Greg Blanchard File name-Fire Station No.7
Design Development Total $/sf %of Site Building
Estimate Cost Total Cost Cost
General Conditions-11 months 231,354 14.50 7.92% 50,000 181,354
Building Permit none 0.00 0.00% none 0
Testing&Inspection by owner 0.00 0.00% by owner by owner
Selective Demolition 980 0.06 0.03% 980 0
Mass Excavation 44,671 2.80 1.53% 44,671 0
Soil Stabilization 16,418 1.03 0.56% 16,418 0
Termite Control 2,200 0.14 0.08% 2,200
Site Utilities 38,880 2.44 1.33% 38,880 0
Landscaping&Irrigation 75,000 4.70 2.57% 75,000 0
Rain Colletion System 29,000 1.82 0.99% 29,000
Wood Fencing 2,400 0.15 0.08% 2,4001 0
Monumental Si na a Letters 2,700 0.17 0.090/0 2,700 0
Pavement Markings 1,354 0.08 0.05% 1,354 0
Site Concrete 247,669 15.52 8.48% 247,669 0
Pourous Pavement 17,632 1.11 0.60% 17,632 0
Building Concrete 291,343 18.26 9.98% 291,343
Masonry 222,788 13.96 7.63% 4,320 218,468
Structural Steel 78,888 4.94 2.70% 78,888
Light Gage Metal Trusses 37,223 2.33 1.27% 37,223
Miscellaneous Steel 18,798 1.18 0.64% 8,470 10,328
Rough Carpentry 35,798 2.24 1.23% 35,798
Millwork 59,583 3.73 2.04% 59,583
W , D ,&Joint Sealants 13,802 0.87 0.47% 2,085 11,717
Building Insulation 35,688 2.24 1.22% 35,688
Prefinished Roofing&Sliding 111,239 6.97 3.81% 111,239
Metal Doors&Frames-Materia 6,495 0.41 0.22% 6,495
Wood Doors-Materials 8,000 0.50 0.27% 8,000
Finish Hardware-Materials 7,315 0.46 0.25% 7,315
Doors, Frames& Hardware-La 5,750 0.36 0.20% 5,750
Special Doors 44,000 2.76 1.51% 44,000
Glass&Glazing 46,123 2.89 1.58% 46,123
Exterior Insulation Finish S ste 12,651 0.79 0.43% 12,651
Drywall&Acoustical 79,654 4.99 2.73% 79,654
Ceramic Tile 22,670 1.42 0.78% 22,670
Carpet&Resilient 25,851 1.62 0.89% 25,851
Sport Flooring 3,965 0.25 0.14% 3,965
Painting&Wall Covering 48,020 3.01 1.64% 2,510 45,510
Liquid Markerboards 640 0.04 0.02% 640
Toilet Partitions&Accessories 4,435 0.28 0.15% 4,435
Aluminum Louvers 1,350 0.08 0.05% 1,350
Flagpole 2,500 0.16 0.09% 2,500
Identification Devices 4,685 0.29 0.16% 4,685
Building Plaque 1,200 0.08 0.04% 1,200
Lockers 5,565 0.35 0.19% 5,565
Fire Extinguishers&Cabinets 965 0.06 0.03% 965
Laundry Equipment 9,200 0.58 0.32% 9,200
Projection Screens 1,275 0.08 0.04% 1,275
Residential Equipment 13,760 0.86 0.47% 13,760
Window Treatment 5,667 0.36 0.19% 5,667
Recessed Entrance Mats 1,296 0.08 0.04% 1,296
Plumbing 99,600 6.24 3.41% 99,600
Fire Protection 19,942 1.25 0.68% 19,942
HVAC 102,500 6.42 3.51% 102,500
Electrical 248,851 15.60 8.52% 18,125 230,726
Fire Alarm 20,740 1.30 0.71% 20,740
Subtotal- 2,470,071 154.82 84.58% 533,214 1,936,858
8%Design Contingency- 197,606 12.39 6.77% 42,657 154,949
General Liability Insurance- 14,672 0.92 0.50% 3,167 11,505
Builder's Risk Insurance- 5,365 0.34 0.18% 1,158 4,207
6.5%Overhead&Fee- 174,701 10.95 5.98% 37,713 136,989
Subtotal- 2,862,4161 179.421 98.01%1 617,9091 2,244,506
General Contractor's Bond- 58,1071 3.641 1.99%1 12,5441 45,563
Design Development Estimate- $2,920,523 $183.06 100.00% $630,453 $2,290,070
$39.52 $143.54
/sf /sf
Add Alternate-No.1 - 151,772 Increase Fire Truck Bay
Total including the Alternates- $3,072,295
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Police
ACM: Jon Fortune it
SUBJECT
An Ordinance of the City of Denton, Texas amending the provisions of Chapter 6,
Section 18 regarding the adoption of dogs, cats, and ferrets; providing for a severability
clause; providing a repealer clause; providing for a savings clause; providing for a
penalty not to exceed $500 for violations of this ordinance; and providing for an effective
date.
BACKGROUND
On February 22, 2005, staff presented Council with a comprehensive analysis of the
Denton Animal Shelter. One of the changes suggested by staff was the use of a one-stop
adoption program that would facilitate a more efficient adoption process for both staff
and adopters as well as improve the overall adoption image of the shelter. Council
directed staff to pursue the one-stop adoption program.
Chapter 6, Section 18 of the city's Code of Ordinances outlines the requirements for
adopting dogs, cats, and ferrets from the city shelter. Previously, a potential adopter was
required to obtain a pre-paid receipt from a veterinarian for the required spay/neuter
services and vaccinations. Under the one-stop adoption process, potential adopters would
select an animal to adopt, complete the paperwork, and pay the adoption fee. The
adoption fee would include payment for spay/neuter services, rabies vaccination, pre-
surgical examination, testing for certain diseases/conditions, de-worming (if necessary),
and the first year registration for city residents. Once the paperwork and payment are
handled, the animal would be transported to the veterinarian. The adopter would pick up
the animal at the provider following the completion of the services and any necessary
recovery time.
OPTIONS
1. Council can adopt the ordinance as written.
2. Council can direct staff to make revisions or amend the ordinance and present
it for future consideration.
3. Council can reject the proposed ordinance.
RECOMMENDATION
Staff recommends Council adopt the ordinance as written.
1
PRIOR ACTION/REVIEW
Council Work Session February 22, 2005.
Council Work Session November 1, 2005.
FISCAL IMPACT
The recommended changes to the adoption process should not have any negative fiscal
impact. It is anticipated that these changes will streamline the process and encourage
additional adoptions. Currently, an adopter pays a ten-dollar ($10) adoption fee per
animal to the shelter, and city residents pay four dollars ($4) for city registration. The
adopter also pays a veterinarian for spay/neuter services and vaccinations. Under the
proposed changes, the adopter will pay a flat adoption fee of one hundred twenty dollars
($120)for dogs and one hundred ten dollars ($110)for cats at the time of adoption. Based
on the pricing scale provided in Appendix A, this flat fee should be sufficient to cover the
projected costs of the majority of the procedures done on animals from the shelter. Based
on the varying number of animals adopted and the services that might be required for
each, there is no accurate means to project the overall fiscal impact. However, the flat
rate fees should be sufficient to provide the same revenue projected under the current
process, or slightly more.
Respectfully submitted,
r
Charles Wiley
Chief of Police
Prepared by:
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S10ur Documents\Ordinances\05\Anim iAduplioMmendments.doc
ORDINANCE NO. 2005-
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING THE PROVISIONS
OF CHAPTER 6 SECTION 18 REGARDING THE ADOPTION OF DOGS, CATS, AND
FERRETS; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING FOR A SAVINGS
CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF
THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. Chapter 6 "Animals" of the Code of Ordinances of Denton, Texas is
hereby amended by amending Section 6-18 regulating the adoption of dogs, cats, and ferrets and
shall read as follows:
Sec. 6-18 Adoption of dogs,cats, and ferrets.
(a) The animal control center is authorized to offer for adoption any impounded animal
not redeemed by its owner within ninety-six (96) hours or any animal released by its owner for
adoption,except where otherwise specified.
(b) Animal Services Officers shall be the sole judge as to whether or not an animal is
suitable to offer for adoption. A decision to offer a particular animal for adoption shall not
constitute a warranty, expressed or implied, of the health, temperament, or age of the animal.
(c) In order to adopt a dog or cat, a person shall:
(1) Complete the necessary adoption paperwork and pay an adoption fee as
established by the city council and kept on file in the office of the city
secretary.
(2) If required by this article, pay a registration fee as established by the city
council and kept on file with the city secretary.
(d) In order to adopt a ferret, a person shall:
(1) Complete the necessary adoption paperwork;
(2) Pay a veterinary clinic for the administration of vaccinations against rabies
and other communicable diseases common to the animal species and present a
receipt of payment from the veterinary clinic;
(3) If required by this article, pay a registration fee as established by the city
council and kept on file with the city secretary; and
S:\Our Documents\Ordinances\05 WnimalAdoptioMmendmenK.doc
(4) Subsequently provide certification from the veterinary clinic that the animal
was vaccinated as prescribed within seven (7) days of the animals release
from the animal shelter.
(e) A person who adopts an animal from the animal control center, that is determined by
the city's contracted veterinary provider to be either of insufficient age or medical condition to
receive vaccinations or be spayed or neutered as prescribed by law, shall follow the instructions
provided by the contracted veterinary provider and ensure that the adopted animal is
subsequently vaccinated and spayed or neutered by the contracted veterinary provider when it is
medically capable.
(f) If a person fails to meet the requirements of this section, the animal center is
authorized to impound the animal. It shall be unlawful for any person, who is in violation of this
section, to fail or refuse to surrender an animal adopted from the animal control center.
SECTION 2. If any section, subsection, paragraph, sentence, clause, phrase, or word in
this ordinance, or application thereof to any person or circumstances is held invalid by any court
of competent jurisdiction, such holding shall not effect the validity of the remaining portions of
this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have
enacted such remaining portions despite any invalidity.
SECTION 3. Save and except as amended hereby, all the provisions, sections,
subsections paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain
in full force and effect.
SECTION 4. Any person found guilty of violating this ordinance by a court of
competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500) per day.
Each day that a provision of this ordinance is violated shall constitute a separate offense.
SECTION 5. This ordinance providing for a penalty shall become effective fourteen(14)
days from the date of its passage, and the City Secretary is hereby directed to cause the caption
of this ordinance to be published twice in the Denton Record-Chronicle, the official newspaper
of the City of Denton,Texas, within ten(10)days of the date of its passage.
PASSED AND APPROVED this the day of 2005.
EULINE BROCK, MAYOR
Page 2 of 3
S:\Our Documenu\Ordinances\05\AnimalAdoptionAmendments.doc
ATTESTED:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER,CITY ATTORNEY
BY:
Page 3 of 3
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Police
ACM: Jon Fortune
SUBJECT
An Ordinance amending Ordinance No. 2001-338 to establish an adoption fee for dogs at
one hundred and twenty dollars ($120), an adoption fee for cats at one hundred and ten
dollars ($110), and an adoption fee for ferrets at ten dollars ($10) pursuant to Chapter 6
of the Code of Ordinances of the City of Denton, Texas; providing that a schedule of fees
shall be maintained on file in the office of the city secretary; providing a savings clause;
providing a severability clause; and providing an effective date.
BACKGROUND
This fee ordinance establishes the fees for adopting dogs, cats, and ferrets from the city
animal shelter under the proposed change to a one-stop adoption process. The ordinance
sets up a flat adoption fee that is designed to be sufficient enough to cover the cost of the
contracted veterinary services and the revenue that was projected to be collected under
the current adoption process (ten dollars per animal).
OPTIONS
1. Council can adopt the ordinance as written.
2. Council can direct staff to make revisions or amend the ordinance and present
it for future consideration.
3. Council can reject the proposed ordinance.
RECOMMENDATION
Staff recommends Council adopt the ordinance as written.
PRIOR ACTION/REVIEW
Council Work Session February 22, 2005.
Council Work Session November 1, 2005.
FISCAL IMPACT
The recommended changes to the adoption process should not have any negative fiscal
impact. It is anticipated that these changes will streamline the process and encourage
additional adoptions. Currently, an adopter pays a ten-dollar ($10) adoption fee per
animal to the shelter, and city residents pay four dollars ($4) for city registration. The
adopter also pays a veterinarian for spay/neuter services and vaccinations. Under the
I
proposed changes, the adopter will pay a flat adoption fee of one hundred and twenty
dollars ($120) for dogs and one hundred and ten dollars ($110) for cats at the time of
adoption. Based on the pricing scale provided in Appendix A, this flat fee should be
sufficient to cover the projected costs of the majority of the procedures done on animals
from the shelter. Based on the varying number of animals adopted and the services that
might be required for each, there is no accurate means to project the overall fiscal impact.
However, the flat rate fees should be sufficient to provide the same revenue projected
under the current process, or slightly more.
Respectfully submitted,
Charles Wiley
Chief of Police
Prepared by:
Scott Fletcher
Lieutenant
Operations Bureau
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S:\Our Documents\Ordinances\05\AnimalFee0rdinance.doc
ORDINANCE NO.
AN ORDINANCE AMENDING ORDINANCE NO. 2001-338 TO ESTABLISH AN
ADOPTION FEE FOR DOGS AT ONE HUNDRED TWENTY DOLLARS ($120), AN
ADOPTION FEE FOR CATS AT ONE HUNDRED TEN DOLLARS ($110), AND AN
ADOPTION FEE FOR FERRETS AT TEN DOLLARS ($10) PURSUANT TO CHAPTER 6
OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS; PROVIDING
THAT A SCHEDULE OF FEES SHALL BE MAINTAINED ON FILE IN THE OFFICE OF
THE CITY SECRETARY; A SEVERABILITY CLAUSE; PROVIDING A SAVINGS
CLAUSE;AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems it in the public interest to create a fee for adoption
of dogs, cats,and ferrets;NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. That the following fees in the Schedule of Fees established by Ordinance
No. 2001-338 are hereby amended to be collected pursuant to the specified provisions of Chapter
6 of the Code of Ordinances:
SCHEDULE OF FEES
Sec. 6-14 Dog and Cat Registration Fee $ 10.00 annually
$ 4.00 annually if
unable to
procreate
Sec. 6-17 Animal Impound Fees
(1) Class A Animals (dogs, cats,fowl, each animal)
First Impoundment $ 20.00
Second Impoundment $ 30.00
Third Impoundment $ 45.00
Fourth Impoundment $ 70.00
(2) Class B Animals (goats, sheep, lambs, pigs, sows, shoats, calves,
foals, and animals of the same approximate size and weight, each
animal)
First Impoundment $ 30.00
Second Impoundment $ 40.00
Third Impoundment $ 75.00
Fourth Impoundment $113.00
S:\Our Documents\Ordinances\05\AnimalFee0rdinance.doc
(3) Class C Animals (cattle, mules, horses, ponies, and animals of the
same approximate size and weight, each animal)
First Impoundment $ 35.00
Second Impoundment $ 50.00
Third Impoundment $ 75.00
Fourth Impoundment $115.00
(4) Class D Animal (prohibited, exotic, or wild animals requiring
capture by center personnel [provided, if the Class D animal is
already contained by the owner, then Class B fee schedule shall
apply])
First Impoundment $ 34.00
Second Impoundment $ 50.00
Third Impoundment $ 75.00
Fourth Impoundment $115.00
Sec. 6-17 Daily Handling Fee
First Day or part of Day $ 15.00
Each Subsequent Day $ 5.00
Sec. 6-18 Adoption Fees
Dogs $120.00
Cats $110.00
Ferrets $ 10.00
Sec. 6-21 Carcass Handling/Dead Animal Disposal Fee
Drop-off/Animal Brought to
Animal Control Center $ 5.00 per animal
City Pick-up of Animal $ 25.00 per animal
Sec. 6-22 Animal Euthanasia Fees $ 30.00 per animal
(1) Burial Box
Small Animal up to 15 pounds $ 45.00
Medium Animal 16-30 pounds $ 55.00
Large Animal over 30 pounds $ 65.00
Page 2 of 4
S:\Our Documents\Ordinances\05\AnimalFee0rdinance.doc
(2) Cremation Urn Up to 50 pounds Over 50 pounds
Injection Mold Urn $ 65.00 $ 85.00
Redwood Box Urn $ 70.00 $ 90.00
Ceramic Urn $ 75.00 $100.00
Sec. 6-24 Quarantine Fees
First Day or part of Day $ 15.00
Each Subsequent Day $ 5.00
Rabies Diagnostic Testing $ 70.00
Sec. 6-30 Prohibited Animal Permit Fee $ 50.00 per animal
Sec. 6-38 Dangerous Animal Fee $200.00 per animal
SECTION 2. The above-mentioned fees as established by the City Council shall be
placed on file in the office of the City Secretary and made available to any member of the public
who wishes to see a copy of the fees as established by this ordinance. The City Secretary is
directed to maintain this Schedule of Fees on file in the City Secretary's office as adopted hereby
or as in the future may be established by the City Council. All fees shall be paid to the City at
the Animal Control Center in accordance with Article III of Chapter 6 of the Code of Ordinances
of the City of Denton.
SECTION 3. If any section, subsection, paragraph, sentence, clause, phrase, or word in
this ordinance, or application thereof to any person or circumstances is held invalid by any court
of competent jurisdiction, such holding shall not effect the validity of the remaining portions of
this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have
enacted such remaining portions despite any invalidity.
SECTION 4. Save and except as amended hereby, all the provisions, sections,
subsections paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain
in full force and effect.
SECTION 5. This ordinance shall become effective fourteen (14) days from the date of
its passage.
Page 3 of 4
S:\Our Documents\Ordinances\05\AnimalFee0rdinance.doc
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- CITY ATTORNEY
.4
BY: k=
Page 4 of 4
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Charles Wiley 349-7925
ACM: Jon Fortune it
SUBJECT
Consider adoption of an Ordinance authorizing the City Manager to execute a Professional
Services Agreement with the firm of Southridge Animal Hospital to provide sterilization and
rabies vaccination services for the City of Denton Animal Services Center; authorizing the
collection of funds therefor as reflected in the fee ordinance; and providing an effective date.
RFP INFORMATION
City Council reviewed this Request for Proposals for Animal Services (RFP 3391) at the
November 3, 2005 Work Session. The agenda information sheet that was presented at this
meeting is included as Attachment 1. The composite grading sheet, which ranks the four
proposals submitted is included as Attachment 2.
RECOMMENDATION
Award a contract for sterilization and vaccination services to Southridge Animal Hospital.
PRINCIPAL PLACE OF BUSINESS
Southridge Animal Hospital
Denton, TX
ESTIMATED SCHEDULE OF PROJECT
This is a one-year agreement, which will begin upon Council approval.
FISCAL INFORMATION
This adoption program and contract with Southridge Animal Hospital will not have a direct fiscal
impact on the city. The cost of the services performed by Southridge Animal Hospital will be
passed on to the adopters at the time they select an animal for adoption.
Agenda Information Sheet
November 15, 2005
Page 2
Respectfully submitted:
1 .;7—
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
Attachment 1: November 1 Council Work Session Agenda Sheet
Attachment 2: Grading Composite
1-AIS-RFP 3391
Attachment 1
AGENDA INFORMATION SHEET
AGENDA DATE: November 1, 2005
DEPARTMENT: Police
ACM: Jon Fortune
SUBJECT:
Receive a report, hold a discussion, and give staff direction regarding the vendor
selection process for the veterinarian services contract for the Animal Shelter.
BACKGROUND
On February 22, 2005, staff presented a report to Council concerning an analysis of the
Animal Services program. Staff sought direction on a strategic plan designed to address
many of the identified problems in the current program. One of the suggested changes
involved the current process for adopting animals out of the shelter. Staff recommended
changing the current procedure to a one-stop adoption format where animals adopted out
of the shelter were sterilized and vaccinated before being released to the adopter. Council
directed staff to pursue this program. Staff began the development of a request for
proposal. In August 2005, the city released a Request for Proposal seeking bids from
qualified veterinarians to provide sterilization and vaccinations services for animals
adopted out of the city animal shelter.
Selection Criteria
The RFP established the following grading criteria to be used in evaluating the vendor
proposals:
Professional Background and Qualifications of Key Personnel (10%)
Relative Prices for Services (25%)
Previous Experience in Sterilization Program Projects (10%)
References of Previous Clients (15%)
Capability to Perform All Aspects of Project(20%)
Familiarity and Proximity to Project Location (10%)
Description and Methodology to be used in Completing Work(10%)
After the RFP was released, the city received proposals from four local veterinarians. A
selection committee was established to review the proposals and make a recommendation
to Council. The members of the committee are:
Stephanie Berry, Assistant City Attorney
Officer Jim Bryan, Business and Media Relations, Police
Lieutenant Scott Fletcher, Operations Bureau, Police
Attachment 1
Captain Scott Langford, Operations Bureau, Police
Tom Shaw, Purchasing Agent
Marilyn Wells, Denton Humane Society
Woodie Wilson, Senior Animal Services Officer, Police
Officer Jim Bryan and Marilyn Wells are members of the City's Animal Shelter Advisory
Board.
The selection committee met September 19° 2005 to discuss the evaluation process and
the grading criteria. The proposals were disseminated to the committee members. The
committee met again September 28, 2005 and ranked each of the four proposals using the
grading criteria. The proposals were ranked as follows:
1. Southridge Animal Hospital
2. Animal Hospital on Teasley Lane
3. Animal Hospital on Milam Road
4. Ponder Veterinary Hospital
Selected members of the committee toured the facilities of the top two hospitals on
October 4, 2005. The full committee held an oral interview of the veterinarians from
these two hospitals on October 6, 2005. The committee met again on October 10, 2005 to
discuss the top two proposals and each committee member submitted a grade sheet for
the top two hospitals. Appendix A provides a complete grading composite.
Recommendation
The committee believed that both of the top two hospitals offered an excellent proposal
that would meet the needs of the shelter. As shown in the scoring composite, the grades
for both hospitals were very close on every aspect. However, there were sufficient
differences in some key aspects that determined the recommendation of the committee.
The committee felt that Southridge Animal Hospital's proposal offered the best overall
program for the animal shelter. Dr. Jones and his staff provided a plan that took in to
account the needs of the shelter, the hours of operation, and the overall goal of the shelter
in terms of adoptions. While the listed prices for Southridge Animal Hospital were higher
than those of the Animal Hospital on Teasley, the price included an array of services that
the committee believed were necessary. When prices for those same services were
calculated into the other proposal, the prices were very competitive. Southridge Animal
Hospital has a staff of three veterinarians that ensures sufficient coverage for the shelter
adoption program. Further, Southridge proposes to transport the animals from the shelter
at their own cost. Because of the staffing limitations of the shelter, this was an important
aspect. Finally, Southridge Animal Hospital recognized and committed to fostering a
positive communications triangle including the hospital staff, the shelter staff, and the
adopter. It was very clear that the staff doctors envisioned the program as more than a
contract to make money. The hospital staff recognized the necessity of running a positive
program and the potential benefit to the shelter of ensuring a quality adoption process.
Their commitment to this type of program was readily apparent in the proposal, during
Attachment 1
the tour of the facilities, and in the interviews. The selection committee recommends the
Southridge Animal Hospital for the contract to perform sterilization and vaccination
services on animals adopted out of the city animal shelter.
OPTIONS
1. Council can direct staff to pursue a contract with Southridge Animal Hospital for
sterilization and vaccination services for the animal shelter.
2. Council can direct staff to conduct additional research on vendors for these
services.
RECOMMENDATION
Staff recommends pursuing a contract with Southridge Animal Hospital.
PRIOR ACTION/REVIEW
02/22/05 — Council Work Session on Animal Services
FISCAL IMPACT
This adoption program and contract with Southridge Animal Hospital will not have a
direct fiscal impact on the city. The cost of the services performed by Southridge Animal
Hospital will be passed on to the adopters at the time they select an animal for adoption.
Currently, the animal shelter charges a ten-dollar ($10) adoption fee on each adoption.
This money serves to help offset the cost of care for the animals in the shelter. It is
anticipated that the city will establish a set adoption fee for dogs and cats that is sufficient
to cover the potential cost of services performed by Southridge and allow for a moderate
amount of income to cover some of the operation costs for the shelter. With the adoption
of this new program and contract with Southridge, staff will bring Council a revised
adoption ordinance and a related fee ordinance.
Respectfully submitted,
Charles Wiley
Chief of Police
Prepared by:
Lt. Scott Fletcher
Operations Bureau
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ORDINANCE NO.
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH THE FIRM OF SOUTHRIDGE ANIMAL HOSPITAL TO
PROVIDE STERILIZATION AND RABIES VACCINATION SERVICES FOR THE CITY OF
DENTON ANIMAL SERVICES CENTER; AUTHORIZING THE COLLECTION OF FUNDS
THEREFOR AS REFLECTED IN THE FEE ORDINANCE;AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, The professional services provider(the"Provider)mentioned in this ordinance
is being selected as the most highly qualified on the basis of its demonstrated competence and
qualifications to perform the proposed professional services; and
WHEREAS, The fees under the proposed 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 COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager is hereby authorized to enter into a professional service
contract with Southridge Animal Hospital,to provide vaccination, sterilization and related services
for the City of Denton Animal Services Program, a copy of which is attached hereto and
incorporated by reference herein.
SECTION 2. The City Manager is authorized to expend funds as required by the attached
contract.
SECTION 3. The findings in the preamble of this ordinance are incorporated herein by
reference.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 12005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY:
3-ORD-RFP 3391
THE STATE OF TEXAS §
Consulting Services Contract
COUNTY OF DENTON §
THIS CONTRACT is entered into on this day of 2005, by and
between the CITY OF DENTON, TEXAS, a municipal corporation located in Denton County,
Texas (hereinafter referred to as "CITY"), acting by and through its City Manager or his
designee, and Southridge Animal Hospital(hereinafter referred to as "CONSULTANT").
WITNESSETH:
WHEREAS, CITY desires to obtain professional consulting services in connection with
the implementation and maintenance of an on-site spay and neuter and rabies vaccination
program for dogs and cats (hereinafter referred to as "Services"); and
WHEREAS, CONSULTANT is qualified to provide such Services and is willing to
undertake such Services for CITY in exchange for fees hereinafter specified; NOW,
THEREFORE,
THAT IN CONSIDERATION of the covenants and agreements hereinafter contained
and subject to the terms and conditions hereinafter stated,the parties hereto do mutually agree as
follows:
I.
Employment of Consultant
CONSULTANT will perform as an independent contractor all Services under this
Contract to the prevailing professional standards consistent with the level of care and skill
ordinarily exercised by members of its profession,both public and private, currently practicing in
the same locality under similar conditions, including reasonable, informed judgments and
prompt, timely action. If CONSULTANT is representing that it has special expertise in one or
more areas to be utilized in this Contract, then CONSULTANT agrees to perform those special
expertise services to the appropriate local, regional or national professional standards.
II.
Scope of Services
The scope of services shall also be performed in accordance with the CONSULTANT's
proposal which is on file in the office of the Purchasing Agent and incorporated herein as if
written word for word. In case of conflict in the language this Contract shall govern and
control. Deviations from the scope of services or other provisions of this contract may only
be made by written agreement signed by all parties to this Contract.
Deliverables: The Consultant is responsible to provide their own computer equipment, and
medical supplies, for on-site work. It is the Consultant's responsibility to alert the City's
representative, in writing, of any item that has been left out of the RFP prior to awarding the
Contract.
CONSULTANT shall set his own hours of work and will decide the methods of
performing the work. He shall not be instructed by CITY as to how he will perform his services.
No training will be provided by CITY for such consulting services.
CITY agrees that CONSULTANT shall not be required to work full time for CITY under
this agreement. CONSULTANT is free to work for other cities or corporations during the time
of this agreement. He may also advertise his services to the public, at his discretion.
CONSULTANT shall not undertake any work under this Contract unless given prior
authorization to proceed. For each task or project requested by CITY, CITY shall provide the
nature and scope of the task or project. CONSULTANT shall then complete the task or project
in a prompt and timely manner. The services provided are to conform in every respect to this
Contract and the proposal attached to this contract as Attachment 1, (hereinafter referred to as
"Proposal"), said document being made a part hereof for all purposes as though written word for
word herein; provided, however, that in case of conflict in the language of this contract and the
Proposal, the terms and conditions of this contract shall be final and binding on both parties
hereto.
III.
Compensation
CITY agrees to pay CONSULTANT for Services performed under this Contract an
amount not to exceed as further described below per animal:
Dog Sterilization:
Female under six months of age
$80.00
Female over six months of age
Under 50 lbs. $ 95.00
50-80 lbs. $105.00
Over 80 lbs. $115.00
Pregnant $ 10.00 Additional Cost
Male under six months of age
$ 75.00
Male over six months of age
Under 50 lbs. $ 85.00
Over 50 lbs. $ 95.00
Cryptorchidism $ 25.00 Additional Cost
Cat Sterilization:
Female $ 90.00
Male $ 80.00
Pregnant No Additional Cost
Cryptorchidism $ 30.00
Rabies Vaccination:
Dog $ 8.00
Cat $ 8.00
payable within thirty days (30) of the receipt of invoices detailing the services rendered to
date. Any sums due hereunder which are not paid when due shall bear interest.
CONSULTANT shall bear all expenses associated with his services, and shall have an
opportunity for profit or loss, depending upon his expenses. If CONSULTANT needs any
assistants to help him deliver his services, he shall hire them and be responsible for their
compensation. In addition, he shall furnish his own supplies and tools. Deviations from the
requirement to provide his own tools and supplies may only be made by written agreement
signed by all parties to this Contract.
CITY shall not be required to pay any amount in excess of the original proposed amount
unless CITY shall have approved in writing in advance (prior to the performance of additional
work) the payment of additional amounts. If at any time it becomes evident that the cost
estimates provided to CITY will not be sufficient to complete the authorized work,
CONSULTANT will immediately notify CITY in writing of said fact.
CONSULTANT is an independent contractor; and, therefore, CITY shall not be providing
CONSULTANT workers' compensation coverage,vacation time or sick leave. CITY will not be
withdrawing from CONSULTANT's compensation withholding taxes, social security taxes,
unemployment insurance contributions and payroll taxes. CONSULTANT agrees to make any
reports required by State or Federal law of self-employed persons to be made for compliance
with the above-referenced programs and tax agencies.
IV.
Term
This Contract shall begin on the date first written above and shall terminate in accordance
with CONSULTANT's proposal which provides for a one year period with the option to extend
for two additional twelve month periods..
V.
Termination
CITY or CONSULTANT may terminate this Contract upon thirty (30) days written notice to the
other party. Upon receipt of termination notice, CONSULTANT shall stop all work in progress,
including subcontracts. CITY shall pay CONSULTANT for all work performed in accordance
with the provisions of this Contract prior to the date of termination only. CONSULTANT shall
invoice CITY for all work performed within thirty (30) days of termination notice. CITY shall
not be responsible for payment of any invoices received after the expiration of thirty (30) days
from notice of termination. CITY shall not be responsible for payment of any "termination
expenses". Upon expiration or termination of this Contract, CONSULTANT shall promptly
return to CITY all related material and any other material that is owned by CITY. Expiration or
termination of this Contract shall not relieve CONSULTANT of its obligations under this
Contract regarding proprietary or confidential information.
VI.
Ownership of Documents
Any materials and documents prepared or assembled by CONSULTANT under this
Contract shall become the sole property of CITY and shall be delivered to CITY, without
restriction on future use. This agreement shall not preclude the CONSULTANT developing for
itself, or for others, materials which are competitive with those produced as a result of the
Services provided hereunder.
VII.
Right to Inspect Records
CONSULTANT agrees that CITY shall have access to and the right to examine any
directly pertinent books, documents, papers and records of CONSULTANT involving
transactions relating to this Contract.
VIII.
Indemnity
CONSULTANT shall and does hereby agree to indemnify and hold harmless CITY,
its officers, agents and employees from any and all damages, loss or liability of any kind,
whatsoever, by reason of death or injury to property or third persons which may arise by
the negligent act, error or omission of CONSULTANT, its officers, agents, employees,
invitees or other persons for whom it is legally liable, with regard to the performance of
this Contract, and CONSULTANT will, at its cost and expense, defend, pay on behalf of
and protect CITY and its officers, agents and employees against any and all such claims
and demands.
IX.
Independent Contractor
CONSULTANT's status shall be that of an Independent Contractor and not an agent,
servant, employee or representative of CITY in the performance of this Contract. No term or
provision of or act of CONSULTANT or CITY under this Contract shall be construed as
changing that status. CONSULTANT will have exclusive control of and the exclusive right to
control the details of the work performed hereunder, and shall be liable for the acts and
omissions of its officers, agents, employees, Contractors, subcontractors, and consultants, and
that the doctrine of respondeat superior shall not apply between CITY and CONSULTANT, its
officers, agents, employees, Contractors, subcontractors and consultants, and nothing herein shall
be construed as creating a partnership or joint enterprise between CITY and CONSULTANT.
X.
Insurance
The term CONTRACTOR, as used herein, refers to CONTRACTOR, its agents,
subcontractors, employees or one authorized to act on behalf of CONTRACTOR. A certificate
of insurance shall be filed with CITY naming the CITY OF DENTON, TEXAS, as an additional
insured with regard to this con-tract, and evidencing insurance coverage of limits not less than
the following:
1. Workers' compensation as required by Texas law, with the policy endorsed to
provide a waiver of subrogation as to CITY; Employer's liability insurance of not less than
$100,000 for each accident, $100,000 disease- each employee and $500,000 disease — policy
limit
2. COMMERCIAL COMPREHENSIVE GENERAL LIABILITY INSURANCE:
CONTRACTOR shall obtain, pay for and maintain at all times during the prosecution of the
work under this Contract commercial comprehensive general liability insurance. Limits of
liability shall be $500,000 per occurrence
It is agreed by all parties to this Contract that the insurance required under this Contract shall:
(a)be written with the City of Denton as an additional insured on all policies or coverages except
Workers' Compensation and Employer's Liability Insurance
(b) provide for thirty (30) days notice of cancellation to CITY, for nonpayment of premium,
material change or any other cause;
(c) be written through companies duly authorized to transact that class of insurance in the State
of Texas;
(d) waive subrogation rights for loss or damage so that insurers have no right to recovery or
subrogation against CITY, it being the intention that the required insurance policies shall protect
all parties to the Contract and be primary coverage for all losses covered by the policies; and
(e)provide a Certificate of Insurance evidencing the required coverages to:
Tom D. Shaw, Purchasing Agent
City of Denton
901-B Texas Street
Denton, Texas 76209
CITY reserves the right to review the insurance requirements of this section during the effective
period of the Contract and to adjust insurance coverages and their limits when deemed necessary
by CITY's Risk Manager based upon changes in statutory law, court decisions or the claims
history of the industry as well
as CONSULTANT.
Approval, disapproval or failure to act by CITY regarding any insurance supplied by
CONSULTANT shall not relieve CONSULTANT of full responsibility or liability for damages
and accidents as set forth in the Contract. Neither shall the insolvency or denial of liability by
the insurance company exonerate CONSULTANT from liability.
XI.
Default
If at any time during the term of this Contract, CONSULTANT or CITY shall fail to
commence the work in accordance with the provisions of this Contract or fail to diligently
provide Services in an efficient, timely and careful manner and in strict accordance with the
provisions of this Contract or fail to use an adequate number or quality of personnel to complete
the work or fail to perform any of its obligations under this Contract, then the other party shall
have the right, if the defaulting party shall not cure any such default after thirty(3 0) days written
notice thereof,to terminate this Contract. Any such act by CITY shall not be deemed a waiver of
any other right or remedy of CITY. If after exercising any such remedy due to CONSULTANT's
nonperformance under this Contract, the cost to CITY of the performance of the balance of the
work is in excess of that part of the Contract sum which has not theretofore been paid to
CONSULTANT hereunder, CONSULTANT shall be liable for and shall reimburse CITY for
such excess.
XII.
Confidential Information
CONSULTANT hereby acknowledges and agrees that its representatives may have access to or
otherwise receive information during the furtherance of its obligations in accordance with this
Contract, which is of a confidential, non-public or proprietary nature. CONSULTANT shall
treat any such information received in full confidence and will not disclose or appropriate for its
own use or the use of any third party, at any time during or subsequent to this Contract, such
Confidential Information. As used herein, "Confidential Information" means all oral and written
information concerning City of Denton, its affiliates and subsidiaries, and all oral and written
information concerning the CITY or its activities, which is of a non-public, proprietary or
confidential nature, including without limitation, information pertaining to customer lists,
services, methods, processes and operating procedures, together with all analyses, compilation,
studies or other documents, whether prepared by CONSULTANT or others, which contain or
otherwise reflect such information. The term Confidential Information shall not include such
materials which are or become generally available to the public other than as a result of
disclosure of CONSULTANT, or are required to be disclosed by a governmental authority.
XIII.
Successors and Assigns
CITY and CONSULTANT each binds himself and his successors, executors,
administrators and assigns to the other party of this Contract and to the successor, executors,
administrators and assigns of such other party in respect to all covenants of this Contract.
Neither CITY nor CONSULTANT shall assign or transfer its interest herein without the prior
written consent of the other.
XIV.
Applicable Law
This Contract is entered into subject to the Charter and ordinances of CITY as they may
be amended from time to time, and is subject to and is to be construed, governed and enforced
under all applicable State of Texas and Federal laws. CONSULTANT will make any and all
reports required per Federal, State or local law including, but not limited to, proper reporting to
the Internal Revenue Service, as required in accordance with CONSULTANT's income. Situs of
this Contract is agreed to be Denton County, Texas, for all purposes including performance and
execution.
XV.
Severability
If any of the terms, provisions, covenants, conditions or any other part of this Contract
are held for any reason to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants, conditions or any other part of this Contract shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
XVI.
Remedies
No right or remedy granted herein or reserved to the parties is exclusive of any other right
or remedy herein by law or equity provided or permitted, but each shall be cumulative of every
other right or remedy given hereunder. No covenant or condition of this Contract may be waived
without consent of the parties. Forbearance or indulgence by either party shall not constitute a
waiver of any covenant or condition to be performed pursuant to this Contract.
XVII.
Entire Agreement
This Contract embodies the complete agreement of the parties hereto, superseding all oral
or written previous and contemporaneous agreements between the parties relating to matters
herein, and except as otherwise provided herein, cannot be modified without written agreement
of the parties.
XVIII.
Non-Waiver
It is further agreed that one (1) or more instances of forbearance by CITY in the exercise
of its rights herein shall in no way constitute a waiver thereof.
XIX.
Headings
The headings of this Contract are for the convenience of reference only and shall not
affect in any manner any of the terms and conditions hereof.
XXI.
Venue
The parties to this Contract agree and covenant that this Contract will be enforceable in
Denton, Texas; and that if legal action is necessary to enforce this Contract, exclusive venue will
lie in Denton County, Texas.
XXII.
Equal Employment Opportunity
CONSULTANT shall not discriminate against any employee or applicant for
employment because of race, age, color, religion, sex, ancestry, national origin, place of birth or
disability. CONSULTANT shall take affirmative action to ensure that applicants are employed,
and that employees are treated during their employment without regard to their race, age, color,
religion, sex, ancestry, national origin, place of birth or disability. This action shall include, but
not be limited to the following: employment, upgrading, demotion or transfer, recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and
selection of training, including apprenticeship.
XXIII
Warranties
Professional Standards. Consultant warrants that:
all Services shall be performed in accordance with applicable professional standards; and
Consultant's provision of Services shall comply in all material respects with the description of
Services that appear herein(including performance capabilities,characteristics, standards and
functions).
IN WITNESS WHEREOF, the parties have hereunto set their hands by their
representatives duly authorized on the day and year first written above.
CITY OF DENTON
BY:
MICHAEL A. CONDUFF, CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY:
CONSULTANT
BY:
STATE OF TEXAS §
COUNTY OF DENTON §
Before me, the undersigned authority, a Notary Public in and for said State of Texas, on
this day personally appeared , known to me to be the
person who signed and executed the foregoing instrument, and acknowledged to me that this
instrument was executed for the purposes and consideration therein expressed.
Given under my hand and seal of office this the day of 12005.
Notary Public in and for the State of Texas
My Commission Expires:
STATE OF TEXAS §
COUNTY OF DENTON §
Before me, the undersigned authority, a Notary Public in and for said State of Texas, on
this day personally appeared , known to me to be the
person who signed and executed the foregoing instrument, and acknowledged to me that this
instrument was executed for the purposes and consideration therein expressed.
Given under my hand and seal of office this the day of 12005.
Notary Public in and for the State of Texas
My Commission Expires:
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Charles Wiley 349-7925
ACM: Jon Fortune
SUBJECT
Consider adoption of an Ordinance accepting competitive proposals and awarding a contract for
the purchase of an automated traffic signal enforcement system; providing for the expenditure of
funds therefore; and providing an effective date (RFP 3364-Automated Traffic Signal
Enforcement System awarded to Redflex Traffic Systems USA).
RFP INFORMATION
City Council reviewed this Request for Proposals for Automated Traffic Signal Enforcement
System at its October 3, 2005 Work Session. The agenda information sheet that was presented at
this meeting is included as Attachment 1. The composite grading sheet, which ranks the two top
proposals submitted is included as Attachment 2.
RECOMMENDATION
Award a contract for operation of the City's Automated Traffic Signal Enhancement Program to
Redflex Traffic Systems USA.
PRINCIPAL PLACE OF BUSINESS
Redflex Traffic Systems USA
Culver City, CA
ESTIMATED SCHEDULE OF PROJECT
This is a three-year contract effective from the date of award or notice to proceed as determined
by the City of Denton Purchasing Department. The contract may be renewed for additional one-
year periods with all prices, terms, and conditions remaining the same.
Agenda Information Sheet
November 15, 2005
Page 2
FISCAL INFORMATION
Reference Fiscal Impact section of Attachment 1: October 3, 2005 Agenda Information Sheet.
Respectfully submitted:
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
Attachment 1: Agenda Sheet from October 3 Council Work Session
Attachment 2: Composite Grading Sheet
1-AIS-RFP 3364
Attachment 1
AGENDA INFORMATION SHEET
AGENDA DATE: October 3, 2005
DEPARTMENT: Police
ACM: Jon Fortune, Assistant City Manager
SUBJECT
Receive a report, hold a discussion, and give staff direction regarding the vendor
selection process for the automated traffic signal enforcement program.
BACKGROUND
On October 4, 2004 staff made a presentation to Council in work session on the use of
automated traffic signal enforcement. On December 7, 2004, Council adopted an
ordinance authorizing the use of red light cameras and instructed staff to develop and
pursue the project. In December 2004, the Cities of Plano, Richardson, and Frisco joined
together and Iaunched an RFP for the purpose of selecting a vendor for red light cameras
for their respective cities. The City of Denton attempted to join in with these other cities
on their RFP, but due to logistical complications, we were not able to formally join their
consortium. However, these three cities openly welcomed our staff to meet with them and
observe the RFP process. City staff members attended committee meetings and vendor
presentations in January and February 2005. The City of Denton had two possible routes
to take in selecting a red light camera vendor: work though existing interlocal agreements
and use the vendor selected by the cities of Plano, Richardson, and Frisco; or develop an
RFP and seek proposals from red light vendors on our own. City Staff met in March 2005
and decided that the city had more flexibility and better options if we pursued vendors
through our own RFP process.
As staff began the RFP development, a number of legal challenges were made to the
enabling legislation during the Texas Legislature's regular session. None of the
challenges passed during the regular session, and an attempt during the first Special
Session failed as well. With these legal challenges no longer a threat, the decision was
made to move forward with the red light camera RFP. The RFP was developed and
released in August 2005. The RFP set out the criteria to be used in selecting a vendor:
Back Office Performance (35%), Technology and Hardware (20%), Experience and
Qualifications (10%), Project Termination Plan (10%), Overall Cost of the Program
(20%), and Overall Project Approach (5%). Each of these sections is explained below.
Back Office Performance (35%)
Back office performance is the largest section in the grading criteria, carrying the
heaviest weight of any single category. Back office performance includes a subsection on
evidence, such as the overall quality of photographs and video and the quality of
individual violation photographs. It also includes a subsection on processing, covering
issues such as the vendor's capability to process those photos and video in a timely
manner, the vendor's ability to obtain motor vehicle registration information, the
vendor's software and access to both police and violators over the Internet, and the ability
to produce violation notices within seven days. Back office performance also includes the
vendor's analytical capabilities on captured data, and their public education program.
Technology and Hardware Performance (20%)
This section covers the issue of what type of cameras the vendor uses and the overall
functionality of the camera system. It includes criteria on Detection, Portability,
Installation, and Maintenance. Detection involves the vendor's ability to monitor and
capture violations on varying lane types and numbers, capture multiple violations during
a single light phase, and the type of detection technology the vendor employees.
Portability centers on the vendor's ability to provide equipment for up to ten intersections
and their capability to provide a "turn key" solution. Installation concerns the vendor's
ability to have the system installed within ninety days from the notice to proceed and
their use of subcontractors for the project. Finally, Maintenance involves the ability of the
vendor to make timely repairs and adjustments on the system within a minimum
timeframe of forty-eight hours.
Experience and Qualifications (10%)
Research into the field of automated traffic signal enforcement provides a clear picture
that there have been many companies that entered the field, but many of them have failed
to last for very long. There are a number of vendors who have either filed for bankruptcy
or were sold to other competitors. This section reviews the experience of the vendor,
including the amount of time they have been in business, prior experience with other
cities, and the list of references with other projects.
Project Termination Plan (10%)
Given the recent legal challenges to the enabling legislation at the State level, there is
some concern about entering into a long-term contract without some assurance as to what
happens if the legislation is later overturned. This section examines the vendor's position
on this issue and the city's financial liability in the event there are legal changes that
prevent the use of the system.
Overall Cost(20%)
The RFP asked for a flat rate monthly price per camera. This section examines the
monthly rate, the cost of "dummy" systems, and any contractual guarantees regarding
cost and performance.
Project Approach (5%)
This section takes a comprehensive look at the vendor's approach to the city's desired
program. Essentially, this section would be scored based on how each vendor compares
to the other vendors.
After the RFP was released, the city received proposals from five vendors. A red light
camera committee was selected to review the proposals and make a recommendation to
Council. The members of the committee are:
Curt Arndt, Traffic Operations Manager
Stephanie Berry, Assistant City Attorney
Lieutenant Loyd Burns, Support Bureau, Police
Lieutenant Scott Fletcher, Operations Bureau,Police
Keith Gabbard, Streets and Drainage Supervisor
Captain Scott Langford, Operations Bureau, Police
Tom Shaw, Purchasing Agent
Scott Wilson, Lead Signal Technician, Traffic Operations
The red light camera committee members met September 1, 2005 and discussed the
vendor proposals. At this meeting, the committee ranked the five vendors using the
grading criteria from the RFP. The vendors were ranked as follows:
1. Redflex
2. ATS
3. Nestor
4. Peek
5. Lasercraft
The top two vendors were invited to make a one-hour oral presentation to the committee.
These presentations were made on September 12, 2005. The committee contacted
reference cities provided by these two vendors. The committee met again following the
presentations and each committee member submitted a grade sheet for the top two
vendors.
A breakdown of the top two vendors is provided below. A full composite grade sheet is
attached in appendix A.
Redflex
Redflex currently has more than 480 operational systems in the United States, including
programs in Chicago, 1L and Scottsdale, AZ. Redflex was recently awarded contracts
with the cities of Plano, Richardson, Frisco. They have the capability to process more
than 140,000 violations a month. They have a proven track record of running the type of
program the City of Denton is looking to employ. They utilize a non-invasive video
detection system and employ multiple digital cameras and a video camera to capture
violations. They provide a twelve second video of each violation—six seconds before and
after each violation. They indicate a willingness to customize much of their program to
suit the individual needs of their customer. Their system also provides a live feed that
can be used to monitor traffic problems. They provide a fully automated traffic statistics
program for use by their customers without the need to request specific reports.
Every reference city provided by Redflex expressed their complete satisfaction with the
product and the company. Each of these cities, despite the wide variations in the number
of cameras systems they have in operation, praised the level of customer service, the
work of the company during the design and installation process, and the overall
performance of the camera systems. Each of these reference cities have been working
with Redflex for at least a year, and several have been operational for a number of years.
Two of the five reference cities contacted offered that they have recently extended the
Redflex contract or are in the process of expanding the Redflex program. Several staff
members of the reference cities stated that Redflex far exceeded their expectations in
every area of the program. One city administrator commented that Redflex was the best
vendor, in any capacity,that he had worked with throughout the city.
Finally, Redflex offers a guaranteed contract to the city. They will adjust the monthly
pricing of our system to ensure that there is no net loss — thus preventing the need to
supplement the red light camera program with the city's budget. They also have an
advantageous project termination plan. In the event the red light program becomes
untenable due to legislative changes or judicial rulings, Redflex will terminate the
program at no cost to us. Further, should the city become dissatisfied with the program's
performance, Redflex will terminate the program without cost to the city. In either case,
Redflex will return the affected intersections to their original operating condition.
ATS
ATS has been involved in photo enforcement programs for a number of years. They were
recently partnered with Mulvihill, another photo enforcement company. They have since
acquired Mulvihill. ATS has a number of red light camera contracts, including programs
in New York, NY and Philadelphia, PA. ATS uses non-invasive video detection and
provides high-resolution digital still photographs. They also offer a ten second video clip
of each violation. For an additional monthly fee, ATS can provide additional (non
violation) cameras for a full video view of an enforcement intersection. ATS offers
statistical reports to the city to audit the operation and effectiveness of the red light
camera program.
Several of the reference cities provided by ATS expressed complete satisfaction with the
program. However, none of these cities appear to be operating the complete system that
ATS proposes to the City of Denton. In New York, ATS operates the camera system.
However,NY City officials conduct all of the back office work on processing and issuing
violation notices and the collection of payments. It is also notable that the NY City
officials consistently referred to Mulvihill and their staff when speaking of the program
assets. Finally, ATS stated in their proposal that they were set to install an additional 50
cameras in NY City by September 2005.NY City staff stated that they were supportive of
adding cameras to their system. Unfortunately, due to existing State legislative
restrictions, they could not add any cameras to their system without changes to the
enabling legislation at the State level. In Philadelphia, city staff members were more than
pleased with their system and the performance of ATS. By law,Pennsylvania requires the
use of 35mm wet film. Therefore, Philadelphia could not provide any feedback on the
digital camera system performance. The third reference provided was Scottsdale, AL
Redflex also listed this city as a reference. ATS operated the red light camera program in
Scottsdale from 1996 — 1999, when they sold their red light camera business contracts to
Redflex. One final issue with references came up with the city of Ft. Collins, CO. This
city was listed in the ATS proposal on a reference list of "key programs under
development, or delivered and operated by many of the same team members being
proposed to the City of Denton". When contacted, Ft. Collins officials stated that they
have a red light camera program being run by Redflex and were not aware of any
relationship to ATS.
In terms of program costs, ATS offers a very competitive monthly rate for their camera
systems. However, ATS requires some additional payments for some services that have
the potential to inflate the monthly cost. The installation of the four-way video system, as
stated above, would add more than one hundred dollars each month per intersection. The
monthly rate offered only includes registration information from Texas. There is an
additional per violation charge to look up and retrieve out-of-state license
plate/registration data. ATS offers a no-cost termination plan in the event of a legislative
change that prohibits the use of red light cameras. They do not offer a no-cost termination
for any other reason. Finally, ATS does not offer a contract guarantee for the
performance of the program. Should the income from paid violations fail to cover the
monthly cost of the camera systems, the city would be liable to make up the price
difference. The company president did make such an offer during his oral presentation in
response to a question, but this guarantee was not provided in writing with the original
proposal.
Recommendation
Based on the information in the written and oral presentations, along with the comments
provided by other cities using these companies, the red light camera committee
unanimously recommends Redflex as the vendor for the City of Denton Automated
Traffic Signal Enforcement Program. Redflex scored higher in every category on every
committee member's grading sheet. (See Attachment 1)
OPTIONS
1. Council can direct staff to pursue a contract with Redflex as the vendor for the
city's Automated Traffic Signal Enforcement Program.
2. Council can direct staff to conduct additional research on vendors for the city's
Automated Traffic Signal Enforcement Program.
RECOMMENDATION
Staff recommends pursuing a contract with Redflex for the city's Automated Traffic
Signal Enforcement Program.
PRIOR ACTION/REVIEW
10/04/04—Council Work Session on Red Light Cameras.
12/07/04—Council adoption of Red Light Camera Ordinance.
FISCAL IMPACT
Should Council approve the recommendation of Redflex as the vendor for the program,
there will be a fairly minimal impact on the city budget. Because Redflex offers a
guaranteed contract, there should be no additional cost to the city from the contract with
Redflex. Should the program produce any revenue above the monthly cost of the
contract, the existing ordinance provides for the revenue to be deposited in a "Public
Safety"account. This account is dedicated to expenditures for the operation of the camera
program and can only be used for this purpose or to fund specific public safety programs
and improvements, such as signal/intersection improvements, Iaw enforcement traffic
enforcement programs, and other related activities.
Regardless of which vendor is selected, the city is responsible for establishing a part time
Hearing Officer to listen to appeals of citizens who receive violation notices. Revenues,
as stated above, could cover this Hearing Officer position, as it is part of the overall
program. However, this position is not included in the vendor contract. As such, it is not
covered by the contract guarantee provided by Redflex. The city is obligated to fund this
position in the event there are not sufficient revenues to pay for it.
ATTACHMENT
I. Composite Grading Sheet
Respectfully submitted,
Charles Wiley
Chief of Police
Prepared by:
Lt. Scott Fletcher
Operations Bureau
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ORDINANCE.
AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A BEST
VALUE ANNUAL CONTRACT FOR OPERATION OF AN AUTOMATED TRAFFIC
SIGNAL ENFORCEMENT PROGRAM; PROVIDING FOR THE EXPENDITURE OF
FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 3364-AUTOMATED
TRAFFIC SIGNAL ENFORCEMENT SYSTEM AWARDED TO REDFLEX TRAFFIC
SYSTEMS USA).
WHEREAS, the City has heretofore solicited, received, and tabulated competitive best
value bids, for the purchase of necessary materials, equipment, supplies or services in accordance
with the procedures of State law and the City of Denton, Texas ordinances; and
WHEREAS, the City Manager or a designated employee of the City with authority, have
reviewed and recommended that the herein described bids are the best value bids for the
materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore
based on the selection criteria set forth in the requests for bids; 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 findings and conclusions set forth in the preamble of this ordinance
are incorporated within the body of the ordinance.
SECTION 2. The options 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, is hereby accepted and approved as being the best value bid for such items:
RFP
NUMBER DESCRIPTION VENDOR AMOUNT
3364 Automated Traffic Signal Redflex Traffic Systems USA Fee Structure
Enforcement Program Inc. in Contract
SECTION 3. By the acceptance and approval of the above 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. The City Manager is hereby authorized to execute any and all necessary
written contracts for the performance of the services in accordance with the bids accepted and
approved herein, provided that such contracts are made in accordance with and relating to the
items specified in Section 1, which written contract(s) shall be attached hereto; provided that the
written contract is in accordance with the above Request to Submit Bids, Bid Proposals, and
documents relating thereto specifying the terms, conditions, plans and specifications, standards,
quantities and specified sums contained therein.
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 day of , 2005.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY:
4-ORD-RFP 3364
AGREEMENT BETWEEN THE CITY OF DENTON
AND REDFLEX TRAFFIC SYSTEMS, INC. FOR
PHOTO RED LIGHT ENFORCEMENT PROGRAM
This Agreement (this "Agreement") is made as of this _day of(insert month), 2005 by
and between Redflex Traffic Systems, Inc. with offices at 6047 Bristol Parkway 1St Floor,
Culver City, California 90230 ("Redflex"), and The City of Denton, a municipal
corporation,with offices at 215 E. McKinney, Denton, Texas 76201, (the "Customer").
RECITALS
WHEREAS, Redflex has exclusive knowledge, possession and ownership of certain
equipment, licenses, applications, and citation processes related to digital photo red light
enforcement systems; and
WHEREAS, the Customer desires to engage the services of Redflex to provide certain
equipment, processes and back office services so that sworn police officers of the
Customer are able to monitor, identify and enforce red light running violations as
prescribed under Ordinance No.2004-389 (Insert ordinance 4); and
WHEREAS, it is a mutual objective of both Redflex and the Customer to reduce the
incidence of vehicle collisions at the traffic intersections and city streets that will be
monitored pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein, and for
other valuable consideration received, the receipt and sufficiency of which are hereby
acknowledged,the parties agree as follows:
AGREEMENT
1. 0Q7AITI0,1VS In this Agreement, the words and phrases below shall have the
following meanings:
I.I. "Authorized Officer" means the Police Project Manager or such other
individual(s) as the Customer shall designate to review Potential Violations and
to authorize the Issuance of Citations in respect thereto, and in any event, a
sworn police officer.
1.2. "Authorized Violation" means each Potential Violation in the Violation Data for
which authorization to issue a citation in the form of an Electronic Signature is
given by the Authorized Officer by using the Redflex System.
1.3. "Citation" means the notice of a Violation, which is mailed or otherwise
delivered by Redflex to the violator on the appropriate Enforcement
Documentation in respect of each Authorized Violation.
1.4. "Confidential or Private Information" means, with respect to any Person, any
information, matter or thing of a secret, confidential or private nature, whether or
not so labeled, which is connected with such Person's business or methods of
operation or concerning any of such Person's suppliers, licensors, licensees,
customers or others with whom such Person has a business relationship, and
which has current or potential value to such Person or the unauthorized
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disclosure of which could be detrimental to such Person, including but not
limited to:
1.4.1. Matters of a business nature, including but not limited to information
relating to development plans, costs, finances, marketing plans, data,
procedures, business opportunities, marketing methods, plans and strategies,
the costs of construction, installation, materials or components, the prices
such Person obtains or has obtained from its clients or customers, or at
which such Person sells or has sold its services; and
1.4.2. Matters of a technical nature, including but not limited to product
information, trade secrets, know-how, formulae, innovations, inventions,
devices, discoveries,techniques, formats,processes, methods, specifications,
designs, patterns, schematics, data, access or security codes, compilations of
information, test results and research and development projects. For
purposes of this Agreement,the term "trade secrets" shall mean the broadest
and most inclusive interpretation of trade secrets.
1.4.3. Notwithstanding the foregoing, Confidential Information will not include
information that: (i)was generally available to the public or otherwise part
of the public domain at the time of its disclosure, (ii)became generally
available to the public or otherwise part of the public domain after its
disclosure and other than through any act or omission by any party hereto in
breach of this Agreement, (iii)was subsequently lawfully disclosed to the
disclosing party by a person other than a party hereto, (iv) was required by
an opinion of the Texas Attorney General or by a court of competent
jurisdiction to be described, or(v)was required by applicable state law to be
described.
1.5. "Designated Intersection Approaches" means the Intersection Approaches set
forth on Exhibit A attached hereto, and such additional Intersection Approaches
as Redflex and the Customer shall mutually agree from time to time.
1.6. "Electronic Signature,, means the method through which the Authorized Officer
indicates his or her approval of the issuance of a Citation in respect of a Potential
Violation using the Redflex System.
1.7. "Enforcement Documentation" means the necessary and appropriate
documentation related to the Photo Red Light Enforcement Program, including
but not limited to warning letters, citation notices (using City specifications), a
numbering sequence for use on all citation, instructions to accompany each
issued Citation (including in such instructions a description of basic adjudication
procedures, payment options and information regarding the viewing of images
and data collected by the Redflex System), chain of custody records, criteria
regarding operational policies for processing Citations (including with respect to
coordinating with the Department of Motor Vehicles), and technical support
documentation for adjudication personnel .
1.8. "Equipment" means any and all cameras, sensors, equipment, components,
products, software and other tangible and intangible property relating to the
Redflex Photo Red Light System(s), including but not limited to all camera
systems,housings, radar units, severs and poles.
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1.9. "`Fine" means a monetary sum assessed for Citation, but excluding suspended
fines.
1.10. "Governmental Authority" means any domestic or foreign government,
governmental authority, court, tribunal, agency or other regulatory,
administrative or judicial agency, commission or organization, and any
subdivision, branch or department of any of the foregoing.
1.11. "Installation Date of the Photo Red Light Program" means the date on
which Redflex completes the construction and installation of at least one (1)
Intersection Approach in accordance with the terms of this Agreement so that
such Intersection Approach is operational for the purposes of functioning with
the Redlight Photo Enforcement Program.
1.12. "Intellectual Propert y" means, with respect to any Person, any and all
now known or hereafter known tangible and intangible (a) rights associated with
works of authorship throughout the world, including but not limited to
copyrights, moral rights and mask-works, (b) trademark and trade name rights
and similar rights, (c) trade secrets rights, (d) patents, designs, algorithms and
other industrial property rights, (e) all other intellectual and industrial property
rights (of every kind and nature throughout the universe and however
designated), whether arising by operation of law, contract, license, or otherwise,
and (f) all registrations, initial applications, renewals, extensions, continuations,
divisions or reissues hereof now or hereafter in force (including any rights in any
of the foregoing), of such Person.
1.13. "Intersection Approach" means a conduit of travel with up to four (4)
contiguous lanes from the curb (e.g., northbound, southbound, eastbound or
westbound) on which at least one (1) system has been installed by Redflex for
the purposes of facilitating Redlight Photo Enforcement by the Customer.
1.14. "Operational Period" means the period of time during the Term,
commencing on the Installation Date, during which the Photo Red Light
Enforcement Program is functional in order to permit the identification and
prosecution of Violations at the Designated City Streets and Intersection
Approaches by a sworn police officer of the Customer and the issuance of
Citations for such approved Violations using the Redflex System.
1.15. "Person" means a natural individual, company, Governmental Authority,
partnership, firm, corporation, legal entity or other business association.
1.16. "Police Project Manager" means the project manager appointed by the
Customer in accordance with this Agreement, which shall be a sworn police
officer and shall be responsible for overseeing the installation of the Intersection
Approaches and the implementation of the Redlight Photo Enforcement Program,
and which manager shall have the power and authority to make management
decisions relating to the Customer's obligations pursuant to this Agreement,
including but not limited to change order authorizations, subject to any
limitations set forth in the Customer's charter, city code or other organizational
documents of the Customer or by the city council or other governing body of the
Customer.
1.17. "Potential Violation" means, with respect to any motor vehicle passing
through a Designated City Street and/or Intersection Approach,the data collected
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by the Redflex System with respect to such motor vehicle, which data shall be
processed by the Redflex System for the purposes of allowing the Authorized
Officer to review such data and determine whether a Red Light Violation has
occurred.
1.18. "Proprietary Propert y" means, with respect to any Person, any written or
tangible property owned or used by such Person in connection with such
Person's business, whether or not such property is copyrightable or also qualifies
as Confidential Information, including without limitation products, samples,
equipment, files, lists, books, notebooks, records, documents, memoranda,
reports, patterns, schematics, compilations, designs, drawings, data, test results,
contracts, agreements, literature, correspondence, spread sheets, computer
programs and software, computer print outs, other written and graphic records
and the like,whether originals, copies, duplicates or summaries thereof, affecting
or relating to the business of such Person, financial statements, budgets,
projections and invoices.
1.19. "Redflex Marks" means all trademarks registered in the name of Redflex
or any of its affiliates, such other trademarks as are used by Redflex or any of its
affiliates on or in relation to Photo Red Light Enforcement at any time during the
Term this Agreement, service marks, trade names, logos, brands and other marks
owned by Redflex,and all modifications or adaptations of any of the foregoing.
1.20. "Redflex Project Manager" means the project manager appointed by
Redflex in accordance with this Agreement, which project manager shall initially
be (insert name), or such person as Redflex shall designate by providing written
notice thereof to the Customer from time to time, who shall be responsible for
overseeing the construction and installation of the Designated Intersection
Approaches and the implementation the Photo Red Light Enforcement Program,
and who shall have the power and authority to make management decisions
relating to Redflex's obligations pursuant to this Agreement, including but not
limited to change-order authorizations.
1.21. "Redflex Photo Red Light System" means, collectively, the SmartCamTM
System, the SmartOpsTM System, the Redlight Photo Enforcement Program, and
all of the other equipment, applications, back office processes and digital red
light traffic enforcement cameras, sensors, components, products, software and
other tangible and intangible property relating thereto.
1.22. "Photo Red Light Enforcement Program" means the process by which the
monitoring, identification and enforcement of Violations is facilitated by the use
of certain equipment, applications and back office processes of Redflex,
including but not limited to cameras, flashes, central processing units, signal
controller interfaces and detectors (whether loop, radar or video loop) which,
collectively, are capable of measuring Violations and recording such Violation
data in the form of photographic images of motor vehicles.
1.23. "Photo Redlight Violation Criteria" means the standards and criteria by
which Potential Violations will be evaluated by sworn police officers of the
Customer, which standards and criteria shall include, but are not limited to, the
duration of time that a traffic light must remain red prior to a Violation being
deemed to have occurred, and the location(s) in an intersection which a motor
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vehicle must pass during a red light signal prior to being deemed to have
committed a Violation, all of which shall be in compliance with all applicable
laws, rules and regulations of Governmental Authorities.
1.24. "SmartCamTM System" means the proprietary digital redlight photo
enforcement system of Redflex relating to the Photo Red Light Enforcement
Program.
1.25. "SmartOpsTM System" means the proprietary back-office processes of
Redflex relating to the Photo Red Light Enforcement Program.
1.26. "SmartSceneTM System" means the proprietary digital video camera unit,
hardware and software required for providing supplemental violation data.
1.27. "Traffic Signal Controller Boxes" means the signal controller interface
and detector, including but not limited to the radar or video loop, as the case may
be.
1.28. "Violation" means any traffic violation contrary to the terms of the
Vehicle Code or any applicable rule, regulation or law of any other
Governmental Authority, including but not limited to operating a motor vehicle
contrary to traffic signals, and operating a motor vehicle without displaying a
valid license plate or registration.
1.29. "Violations Data"means the images and other Violations data gathered by
the Redflex System at the Designated City Streets and/or Intersection
Approaches.
1.30. "Warning Period" means the period that only warning notices and not
citations for violations shall be sent during the 30 day period commencing with
the installation of a traffic-control signal monitoring device.
1.31.
2. TERW The term of this Agreement shall commence as of the date hereof and shall
continue for a period of three (3) years after the Installation Date (the "Initial Term").
The Customer shall have the right, but not the obligation, to extend the term of this
Agreement for up to three (3) additional consecutive and automatic one (1) year
periods following the expiration of the Initial Term (each, a "Renewal Term" and
collectively with the Initial Term, the "Term"). The Customer may exercise the right
to extend the term of this Agreement for a Renewal Term by providing written notice
to Redflex not less than thirty(3 0) days prior to the last day of the Initial Term or the
Renewal Term, as the case may be.
3. SERVECES Redflex shall provide the Photo Red Light Enforcement Program to the
Customer, in each case in accordance with the terms and provisions set forth in this
Agreement.
3.1. INSTALLATION. With respect to the construction and installation of (1) the
Designated Intersection Approaches and the installation of the Redflex System at
such Designated Intersection Approaches, the Customer and Redflex shall have
the respective rights and obligations set forth on Exhibit B attached hereto.
3.2. MAINTENANCE. With respect to the maintenance of the Redflex System at the
Designated Intersection Approaches the Customer and Redflex shall have the
respective rights and obligations set forth on Exhibit C attached hereto.
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3.3. VIOLATION PROCESSING. During the Operational Period, Violations shall
be processed as follows:
3.3.1. All Violations Data shall be stored on the Redflex System;
3.3.2. The Redflex System shall process Violations Data gathered from the
Designated City Streets and/or Intersection Approaches into a format
capable of review by the Authorized Officer via the Redflex System;
3.3.3. The Redflex System shall be accessible by the Authorized Officer through
a virtual private network in encrypted format by use of a confidential
password on any computer equipped with a high-speed internet connection
and a web browser;
3.3.4. Redflex shall provide the Authorized Officer with access to the Redflex
System for the purposes of reviewing the pre-processed Violations Data
within four (4) days of the gathering of the Violation Data from the
applicable Designated City Streets and/or Intersection Approaches
3.3.5. The Customer shall cause the Authorized Officer to review the Violations
Data and to determine whether a citation shall be issued with respect to each
Potential Violation captured within such Violation Data, and transmit each
such determination in the form of an Electronic Signature to Redflex using
the software or other applications or procedures provided by Redflex on the
Redflex System for such purpose, and REDFLEX HEREBY
ACKNOWLEDGES AND AGREES THAT THE DECISION TO ISSUE A
CITATION SHALL BE THE SOLE, UNILATERAL AND EXCLUSIVE
DECISION OF THE AUTHORIZED OFFICER AND SHALL BE MADE
IN SUCH AUTHORIZED OFFICER'S SOLE DISCRETION (A
"CITATION DECISION"), AND IN NO EVENT SHALL REDFLEX
HAVE THE ABILITY OR AUTHORIZATION TO MAKE A CITATION
DECISION;
3.3.6. With respect to each Authorized Violation, Redflex shall print and mail a
Citation within two (2) days after Redflex's receipt of such authorization;
provided, however, during the Warning Period, warning violation notices
shall be issued in respect of all Authorized Violations;
3.3.7. Redflex shall provide a toll-free telephone number for the purposes of
answering citizen inquiries.
3.3.8. Redflex shall permit the Authorized Officer to generate monthly reports
using the Redflex Standard Report System.
3.3.9. Upon Redflex's receipt of a written request from the Customer and in
addition to the Standard Reports, Redflex shall provide, without cost to the
Customer, reports regarding the processing and issuance of Citations, the
maintenance and downtime records of the Designated Intersection
Approaches and the functionality of the Redflex System with respect thereto
to the Customer in such format and for such periods as the Customer may
reasonably request; provided, however, Redflex shall not be obligated to
provide in excess of six (6) such reports in any given twelve (12) month
period without cost to the Customer;
3.3.10. Upon the Customer's receipt of a written request from Redflex, the
Customer shall provide, without cost to Redflex, reports regarding the
6
prosecution of Citations and the collection of fines, fees and other monies in
respect thereof in such format and for such periods as Redflex may
reasonably request; provided, however, the Customer shall not be obligated
to provide in excess of six (6) such reports in any given twelve (12) month
period without cost to Redflex;
3.3.11. During the six (6) month period following the Installation Date and/or
upon Redflex's receipt of a written request from the Customer at least
fourteen (14) calendar days in advance of the adjudication proceeding,
Redflex shall provide expert witnesses for use by the Customer in
prosecuting Violations; provided, however, the Customer shall use
reasonable best efforts to seek judicial notice in lieu of requiring Redflex to
provide such expert witnesses; and
3.3.12. During the three (3) month period following the Installation Date, Redflex
shall provide such training to police personnel as shall be reasonably
necessary in order to allow such personnel to act as expert witnesses on
behalf of the Customer with respect to the Redlight Enforcement Program.
3.4. PROSECUTION AND COLLECTION; COMPENSATION. The Customer shall
diligently prosecute Citations and the collection of all Fines in respect thereof,
and Redflex shall have the right to receive, and the Customer shall be obligated
to pay,the compensation set forth on Exhibit D attached hereto.
3.5. OTHER RIGHTS AND OBLIGATIONS. During the Term, in addition to all of
the other rights and obligations set forth in this Agreement, Redflex and the
Customer shall have the respective rights and obligations set forth on Exhibit E
attached hereto.
3.6. CHANGE ORDERS. The Customer may from time to time request changes to
the work required to be performed or the addition of products or services to those
required pursuant to the terms of this Agreement by providing written notice
thereof to Redflex, setting forth in reasonable detail the proposed changes (a
"Change Order Notice"). Upon Redflex's receipt of a Change Order Notice,
Redflex shall deliver a written statement describing the effect, if any, the
proposed changes would have on the pricing terms set forth in Exhibit D (the
"Change Order Proposal"), which Change Order Proposal shall include (i) a
detailed breakdown of the charge and schedule effects, (ii) a description of any
resulting changes to the specifications and obligations of the parties, (iii) a
schedule for the delivery and other performance obligations, and (iv) any other
information relating to the proposed changes reasonably requested by the
Customer. Following the Customer's receipt of the Change Order Proposal, the
parties shall negotiate in good faith and agree to a plan and schedule for
implementation of the proposed changes, the time, manner and amount of
payment or price increases or decreases, as the case may be, and any other
matters relating to the proposed changes; provided, however, in the event that
any proposed change involves only the addition of equipment or services to the
existing Designated Intersection Approaches, Designated City Vehicles, or the
addition of Intersection Approaches to be covered by the terms of this
Agreement, to the maximum extent applicable, the pricing terms set forth in
Exhibit D shall govern. Any failure of the parties to reach agreement with
7
respect to any of the foregoing as a result of any proposed changes shall not be
deemed to be a breach of this Agreement, and any disagreement shall be resolved
in accordance with Section 10.
Q LIC'47yVS'47;RES ,47fONOF"Cf 7S
4.1. License. Subject to the terms and conditions of this Agreement, Redflex hereby
grants the Customer, and the Customer hereby accepts from Redflex upon the
terms and conditions herein specified, a non-exclusive, non-transferable license
during the Term of this Agreement to: (a) solely within the City of(insert name),
access and use the Redflex System for the sole purpose of reviewing Potential
Violations and authorizing the issuance of Citations pursuant to the terms of this
Agreement, and to print copies of any content posted on the Redflex System in
connection therewith, (b) disclose to the public (including outside of the City of
(insert name) that Redflex is providing services to the Customer in connection
with Photo Red Light Enforcement Program pursuant to the terms of this
Agreement, and (c) use and display the Redflex Marks on or in marketing, public
awareness or education, or other publications or materials relating to the Photo
Red Light Enforcement Program, so long as any and all such publications or
materials are approved in advance by Redflex.
4.2. RESERVATION OF RIGHTS. The Customer hereby acknowledges and agrees
that: (a) Redflex is the sole and exclusive owner of the Redflex System, the
Redflex Marks, all Intellectual Property arising from or relating to the Redflex
System, and any and all related Equipment, (b) the Customer neither has nor
makes any claim to any right, title or interest in any of the foregoing, except as
specifically granted or authorized under this Agreement, and (c) by reason of the
exercise of any such rights or interests of Customer pursuant to this Agreement,
the Customer shall gain no additional right,title or interest therein.
4.3. RESTRICTED USE. The Customer hereby covenants and agrees that it shall not
(a) make any modifications to the Redflex System, including but not limited to
any Equipment, (b) alter, remove or tamper with any Redflex Marks, (c) use any
of the Redflex Marks in any way which might prejudice their distinctiveness,
validity or the goodwill of Redflex therein, (d)use any trademarks or other marks
other than the Redflex Marks in connection with the Customer's use of the
Redflex System pursuant to the terms of this Agreement without first obtaining
the prior consent of Redflex, or(e) disassemble, de-compile or otherwise perform
any type of reverse engineering to the Redflex System, the Redflex System,
including but not limited to any Equipment, or to any, Intellectual Property or
Proprietary Property of Redflex, or cause any other Person to do any of the
foregoing.
4.4. PROTECTION OF RIGHTS. Redflex shall have the right to take whatever
action it deems necessary or desirable to remedy or prevent the infringement of
any Intellectual Property of Redflex, including without limitation the filing of
applications to register as trademarks in any jurisdiction any of the Redflex
Marks, the filing of patent application for any of the Intellectual Property of
Redflex, and making any other applications or filings with appropriate
Governmental Authorities. The Customer shall not take any action to remedy or
prevent such infringing activities, and shall not in its own name make any
8
registrations or filings with respect to any of the Redflex Marks or the
Intellectual Property of Redflex without the prior written consent of Redflex.
4.5. INFRINGEMENT. The Customer shall use its reasonable best efforts to give
Redflex prompt notice of any activities or threatened activities of any Person of
which it becomes aware that infringes or violates the Redflex Marks or any of
Redflex's Intellectual Property or that constitute a misappropriation of trade
secrets or act of unfair competition that might dilute, damage or destroy any of
the Redflex Marks or any other Intellectual Property of Redflex. Redflex shall
have the exclusive right, but not the obligation, to take action to enforce such
rights and to make settlements with respect thereto. In the event that Redflex
commences any enforcement action under this Section 4.5, then the Customer
shall render to Redflex such reasonable cooperation and assistance as is
reasonably requested by Redflex, and Redflex shall be entitled to any damages or
other monetary amount that might be awarded after deduction of actual costs;
provided, that Redflex shall reimburse the Customer for any reasonable costs
incurred in providing such cooperation and assistance.
4.6. INFRINGING USE. The Customer shall give Redflex prompt written notice of
any action or claim action or claim, whether threatened or pending, against the
Customer alleging that the Redflex Marks, or any other Intellectual Property of
Redflex, infringes or violates any patent, trademark, copyright, trade secret or
other Intellectual Property of any other Person, and the Customer shall render to
Redflex such reasonable cooperation and assistance as is reasonably requested by
Redflex in the defense thereof, provided, that Redflex shall reimburse the
Customer for any reasonable costs incurred in providing such cooperation and
assistance. If such a claim is made and Redflex determines, in the exercise of its
sole discretion, that an infringement may exist, Redflex shall have the right, but
not the obligation, to procure for the Customer the right to keep using the
allegedly infringing items, modify them to avoid the alleged infringement or
replace them with non-infringing items.
S. REPRESE1VW4TIONSf4"W,4RRf41VTIES
5.1. Redflex Representations and Warranties.
5.1.1. Authoritv. Redflex hereby warrants and represents that it has all right,
power and authority to execute and deliver this Agreement and perform its
obligations hereunder.
5.1.2. Professional Services. Redflex hereby warrants and represents that any
and all services provided by Redflex pursuant to this Agreement shall be
performed in a professional and workmanlike manner and, with respect to
the installation of the Redflex System, subject to applicable law, in
compliance with all specifications provided to Redflex by the Customer.
5.2. Customer Representations and Warranties.
5.2.1. Authoritv. The Customer hereby warrants and represents that it has all
right, power and authority to execute and deliver this Agreement and
perform its obligations hereunder.
5.2.2. Professional Services. The Customer hereby warrants and represents that
any and all services provided by the Customer pursuant to this Agreement
shall be performed in a professional and workmanlike manner.
9
5.3. LIMITED WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, REDFLEX MAKES NO WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE,WITH RESPECT TO THE REDFLEX SYSTEM OR
ANY RELATED EQUIPMENT OR WITH RESPECT TO THE RESULTS OF
THE CUSTOMER'S USE OF ANY OF THE FOREGOING
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH
HEREIN, REDFLEX DOES NOT WARRANT THAT ANY OF THE
DESIGNATED INTERSECTION APPROACHES OR THE REDFLEX
SYSTEM WILL OPERATE IN THE WAY THE CUSTOMER SELECTS FOR
USE, OR THAT THE OPERATION OR USE THEREOF WILL BE
UNINTERRUPTED. THE CUSTOMER HEREBY ACKNOWLEDGES THAT
THE REDFLEX SYSTEM MAY MALFUNCTION FROM TIME TO TIME,
AND SUBJECT TO THE TERMS OF THIS AGREEMENT, REDFLEX SHALL
DILIGENTLY ENDEAVOR TO CORRECT ANY SUCH MALFUNCTION IN
A TIMELY MANNER.
6. T�RIYIINfITION.
6.1. TERMINATION FOR CAUSE: Either party shall have the right to terminate
this Agreement immediately by written notice to the other if(i) state statutes are
amended to prohibit or substantially change the operation of photo red light
enforcement systems; (ii) any court having jurisdiction over City rules, or state or
federal statute declares, that results from the Redflex System of photo red light
enforcement are inadmissible in evidence; or (iii) the other party commits any
material breach of any of the provisions of this Agreement. Either party shall
have the right to remedy the cause for termination(Sec 6.1)within forty-five (45)
calendar days (or within such other time period as the Customer and Redflex
shall mutually agree, which agreement shall not be unreasonably withheld or
delayed) after written notice from the non-causing party setting forth in
reasonable detail the events of the cause for termination.
6.2. The rights to terminate this Agreement given in this Section 6.1 shall be without
prejudice to any other right or remedy of either party in respect of the breach
concerned(if any)or any other breach of this Agreement.
6.3. PROCEDURES UPON TERMINATION. The termination of this Agreement
shall not relive either party of any liability that accrued prior to such termination.
Except as set forth in Section 6.3, upon the termination of this Agreement, all of
the provisions of this Agreement shall terminate and:
6.3.1. Redflex shall (i) immediately cease to provide services, including but not
limited to work in connection with the construction or installation activities
and services in connection with the Photo Red Light Enforcement Program,
(ii) promptly deliver to the Customer any and all Proprietary Property of the
Customer provided to Redflex pursuant to this Agreement, (iii) promptly
deliver to the Customer a final report to the Customer regarding the
collection of data and the issuance of Citations in such format and for such
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periods as the Customer may reasonably request, and which final report
Redflex shall update or supplement from time to time when and if additional
data or information becomes available, (iv) promptly deliver to Customer a
final invoice stating all fees and charges properly owed by Customer to
Redflex for work performed and Citations issued by Redflex prior to the
termination, and (v)provide such assistance as the Customer may reasonably
request from time to time in connection with prosecuting and enforcing
Citations issued prior to the termination of this Agreement.
6.3.2. The Customer shall (i) immediately cease using the Photo Red Light
Enforcement Program, accessing the Redflex System and using any other
Intellectual Property of Redflex, (ii) promptly deliver to Redflex any and all
Proprietary Property of Redflex provided to the Customer pursuant to this
Agreement, and (iii) promptly pay any and all fees, charges and amounts
properly owed by Customer to Redflex for work performed and Citations
issued by Redflex prior to the termination.
6.3.3. Unless the Customer and Redflex have agreed to enter into a new
agreement relating to the Photo Red Light Enforcement Program or have
agreed to extend the Term of this Agreement, Redflex shall remove any and
all Equipment or other materials of Redflex installed in connection with
Redflex's performance of its obligations under this Agreement, including but
not limited to housings, poles and camera systems, and Redflex shall restore
the Designated City Vehicles and Designated Intersection Approaches to
substantially the same condition such Designated Intersection Approaches
were in immediately prior to this Agreement.
6.4. SURVIVAL. Notwithstanding the foregoing, the definitions and each of the
following shall survive the termination of this Agreement: (x) Sections 4.2
(Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2
(Customer Representations and Warranties), 5.3 (Limited Warranty), 7
(Confidentiality), 8 (Indemnification and Liability), 9 (Notices), 10 (Dispute
Resolution), 11.1 (Assignment), 11.17 (Applicable Law), 11.16 (Injunctive
Relief, Specific Performance) and 11.18 (Jurisdiction and Venue), and (y) those
provisions, and the rights and obligations therein, set forth in this Agreement
which either by their terms state, or evidence the intent of the parties, that the
provisions survive the expiration or termination of the Agreement, or must
survive to give effect to the provisions of this Agreement.
7. CM jWEVF"1ZTY. During the term of this Agreement and for a period of three
(3) years thereafter, neither party shall disclose to any third person, or use for itself in
any way for pecuniary gain, any Confidential Information learned from the other
party during the course of the negotiations for this Agreement or during the Term of
this Agreement. Upon termination of this Agreement, each party shall return to the
other all tangible Confidential Information of such party. Each party shall retain in
confidence and not disclose to any third party any Confidential Information without
the other party's express written consent, except (a) to its employees who are
reasonably required to have the Confidential Information, (b) to its agents,
representatives, attorneys and other professional advisors that have a need to know
such Confidential Information, provided that such parties undertake in writing (or are
11
otherwise bound by rules of professional conduct) to keep such information strictly
confidential, and (c) pursuant to, and to the extent of, a request or order by any
Governmental Authority, including laws relating to public records.
8. IND�11TNIFICfITIONfINDLIfIBILITY.
8.1. Indemnification by Redflex. Subject to Section 8.3 and 8.4, Redflex hereby agrees
to defend and indemnify the Customer and its managers, officers, directors,
employees, agents, representatives and successors, permitted assignees, or any of
them (individually a "Customer Party" and collectively, the "Customer Parties")
against, and to protect, save and keep harmless the Customer Parties from, and to
pay on behalf of or reimburse the Customer Parties as and when incurred for, any
and all liabilities, obligations, losses, damages, penalties, demands, claims,
actions, suits, judgments, settlements, costs, expenses and disbursements
(including reasonable attorneys', accountants' and expert witnesses' fees) of
whatever kind and nature (collectively, "Losses"), which may be imposed on or
incurred by any Customer Party arising out of or related to (a) any material
misrepresentation, inaccuracy or breach of any covenant, warranty or
representation of Redflex contained in this Agreement, or (b) negligence and/or
omissions or the willful misconduct of Redflex, its employees or agents,
subcontractors or contract laborers performing services under the agreement
which result in death or bodily injury to any natural person (including third
parties) or any damage to any real or tangible personal property (including the
personal property of third parties), except to the extent caused by the
subcontractors or contract laborers performing services under this Agreement
willful misconduct of any Customer Party.
8.2. Indemnification by Customer. Subject to Section 8.3 and 8.4, and to the extent
allowed by law and without waiving any rights, defenses or immunities provided to
it by the Texas Tort Claims Act or other applicable law including, without
limitation, the defense of governmental or immunity, the Customer hereby agrees
to defend and indemnify Redflex and its managers, officers, directors,
employees, agents, representatives and successors, permitted assignees or any of
them (individually a "Redflex Party" and collectively, the "Redflex Parties")
against, and to protect, save and keep harmless the Redflex Parties from, and to
pay on behalf of or reimburse the Redflex Parties as and when incurred for, any
and all Losses which may be imposed on or incurred by any Redflex Party
arising out of or in any way related to (a) any material misrepresentation,
inaccuracy or breach of any covenant, warranty or representation of the
Customer contained in this Agreement, (b) the negligence and/or omissions of
the Customer, its employees, officers or agents which result in death or bodily
injury to any natural person (including third parties) or any damage to any real or
tangible personal property (including the personal property of third parties),
except to the extent caused by the willful misconduct of any Redflex Party, (c)
any claim, action or demand not caused by Redflex's failure to perform its
obligations under this Agreement, or(d) any claim, action or demand challenging
the Customer's use of the Redflex System or any portion thereof, the validity of
the results of the Customer's use of the Redflex System or any portion thereof, or
12
the validity of the Citations issued, prosecuted and collected as a result of the
Customer's use of the Redflex System or any portion thereof.
8.3. Indemnification Procedures. In the event any claim, action or demand (a
"Claim") in respect of which any party hereto seeks indemnification from the
other, the party seeking indemnification (the "Indemnified Party") shall give the
party from whom indemnification is sought (the "Indemnifying Party") written
notice of such Claim promptly after the Indemnified Party first becomes aware
thereof, provided, however, that failure so to give such notice shall not preclude
indemnification with respect to such Claim except to the extent of any additional
or increased Losses or other actual prejudice directly caused by such failure. The
Indemnifying Party shall have the right to choose counsel to defend such Claim
(subject to the approval of such counsel by the Indemnified Party, which
approval shall not be unreasonably withheld, conditioned or delayed), and to
control, compromise and settle such Claim, and the Indemnified Party shall have
the right to participate in the defense at its sole expense; provided, however, the
Indemnified Party shall have the right to take over the control of the defense or
settlement of such Claim at any time if the Indemnified Party irrevocably waives
all rights to indemnification from and by the Indemnifying Party. The
Indemnifying Party and the Indemnified Party shall cooperate in the defense or
settlement of any Claim, and no party shall have the right enter into any
settlement agreement that materially affects the other party's material rights or
material interests without such party's prior written consent, which consent will
not be unreasonably withheld or delayed.
8.4. Limited Liability. Notwithstanding anything to the contrary in this Agreement,
neither party shall be liable to the other, by reason of any representation or
express or implied warranty, condition or other term or any duty at common or
civil law, for any indirect, incidental, special, lost profits or consequential
damages, however caused and on any theory of liability arising out of or relating
to this Agreement. It is further agreed that if a claim or liability should arise
from the joint or concurring negligence of both parties hereto, it should be borne
by them comparatively in accordance with the laws of the State of Texas.
Neither this Section nor any other portion of this agreement shall be construed as,
or shall create any, rights for any persons or entities who are not a party to this
agreement.
9. NOTICES Any notices to be given hereunder shall be in writing, and shall be
deemed to have been given (a) upon delivery, if delivered by hand, (b)three (3) days
after being mailed first class, certified mail, return receipt requested, postage and
registry fees prepaid, or (c) one Business Day after being delivered to a reputable
overnight courier service, excluding the U.S. Postal Service, prepaid, marked for next
day delivery, if the courier service obtains a signature acknowledging receipt, in each
case addressed or sent to such party as follows:
9.1. Notices to Redflex:
Redflex Traffic Systems, Inc.
15020 North 74th Street
Scottsdale,AZ 85260
13
Attention: Ms. Karen Finley
Facsimile: (480) 607-5552
9.2. Notices to the Customer:
City of Denton
Attention: City Manager
215 E, McKinney
Denton, Texas 76201
Facsimile: (940) 349-8596
10.MSPt7FC RESO1t7FfO,1V Upon the occurrence of any dispute or disagreement
between the parties hereto arising out of or in connection with any term or provision
of this Agreement, the subject matter hereof, or the interpretation or enforcement
hereof (the "Dispute"), the parties shall engage in informal, good faith discussions
and attempt to resolve the Dispute. In connection therewith, upon written notice of
either party, each of the parties will appoint a designated officer whose task it shall be
to meet for the purpose of attempting to resolve such Dispute. The designated
officers shall meet as often as the parties shall deem to be reasonably necessary. Such
officers will discuss the Dispute. If the parties are unable to resolve the Dispute in
accordance with this Section 10, and in the event that either of the parties concludes
in good faith that amicable resolution through continued negotiation with respect to
the Dispute is not reasonably likely,then the parties may mutually agree to submit to
binding or nonbinding arbitration or mediation.
11.11TISCELLfINEOIls
11.1. ASSIGNMENT. Neither party may assign all or any portion of this
Agreement without the prior written consent of the other,which consent shall not
be unreasonably withheld or delayed; provided, however, The Customer hereby
acknowledges and agrees that the execution (as outlined in Exhibit F), delivery
and performance of Redflex's rights pursuant to this Agreement shall require a
significant investment by Redflex, and that in order to finance such investment,
Redflex may be required to enter into certain agreements or arrangements
("Financing Transactions") with equipment lessors, banks, financial institutions
or other similar persons or entities (each, a "Financial Institution" and
collectively, "Financial Institutions"). The Customer hereby agrees that Redflex
shall have the right to assign, pledge, hypothecate or otherwise transfer
("Transfer") its rights, or any of them, under this Agreement to any Financial
Institution in connection with any Financing Transaction between Redflex and
any such Financial Institution, subject to the Customer's prior written approval,
which approval shall not be unreasonably withheld or delayed. The Customer
further acknowledges and agrees that in the event that Redflex provides written
notice to the Customer that it intends to Transfer all or any of Redflex's rights
pursuant to this Agreement, and in the event that the Customer fails to provide
such approval or fails to object to such Transfer within forty-five (45) business
days after its receipt of such notice from Redflex, for the purposes of this
Agreement, the Customer shall be deemed to have consented to and approved
such Transfer by Redflex. Notwithstanding the above,this Agreement shall inure
14
to the benefit of, and be binding upon, the parties hereto, and their respective
successors or assigns.
11.2. "SPEED ENFORCEMENT" The Customer and Redflex agree that should
legislation or local ordinance be enacted to enable the photo enforcement of
speed within the city, and the city requires this capability for public safety then
the city will have the option to extend this contract to include additional terms for
photo enforcement of speed within the city.
11.3. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER.
Nothing in this Agreement shall create, or be deemed to create, a partnership,
joint venture or the relationship of principal and agent or employer and employee
between the parties. The relationship between the parties shall be that of
independent contractors, and nothing contained in this Agreement shall create the
relationship of principal and agent or otherwise permit either party to incur any
debts or liabilities or obligations on behalf of the other party(except as specifically
provided herein).
11.4. AUDIT RIGHTS. Each of parties hereto shall have the right to audit to
audit the books and records of the other party hereto (the "Audited Party") solely
for the purpose of verifying the payments, if any, payable pursuant to this
Agreement. Any such audit shall be conducted upon not less than forty-eight
(48) hours' prior notice to the Audited Party, at mutually convenient times and
during the Audited Party's normal business hours. Except as otherwise provided
in this Agreement, the cost of any such audit shall be borne by the non-Audited
Party. In the event any such audit establishes any underpayment of any payment
payable by the Audited Party to the non-Audited Party pursuant to this
Agreement,the Audited Party shall promptly pay the amount of the shortfall, and
in the event that any such audit establishes that the Audited Party has underpaid
any payment by more than twenty five percent (25%) of the amount of actually
owing, the cost of such audit shall be borne by the Audited Party. In the event
any such audit establishes any overpayment by the Audited Party of any payment
made pursuant to this Agreement,non-Audited Party shall promptly refund to the
Audited Party the amount of the excess.
11.5. FORCE MAJEURE. Neither party will be liable to the other or be
deemed to be in breach of this Agreement for any failure or delay in rendering
performance arising out of causes beyond its reasonable control and without its
fault or negligence. Such causes may include but are not limited to, acts of God
or the public enemy, terrorism, significant fires, floods, earthquakes, epidemics,
quarantine restrictions, strikes, freight embargoes, or Governmental Authorities
approval delays which are not caused by any act or omission by Redflex, and
unusually severe weather. The party whose performance is affected agrees to
notify the other promptly of the existence and nature of any delay.
11.6. ENTIRE AGREEMENT. This Agreement represents the entire
Agreement between the parties, and there are no other agreements (other than
invoices and purchase orders), whether written or oral, which affect its terms.
This Agreement may be amended only by a subsequent written agreement signed
by both parties.
15
11.7. SEVERABILITY. If any provision of this Agreement is held by any court
or other competent authority to be void or unenforceable in whole or part, this
Agreement shall continue to be valid as to the other provisions thereof and the
remainder of the affected provision.
11.8. WAIVER. Any waiver by either party of a breach of any provision of this
Agreement shall not be considered as a waiver of any subsequent breach of the
same or any other provision thereof.
11.9. CONSTRUCTION Except as expressly otherwise provided in this
Agreement, this Agreement shall be construed as having been fully and
completely negotiated and neither the Agreement nor any provision thereof shall
be construed more strictly against either party.
11.10. HEADINGS. The headings of the sections contained in this Agreement
are included herein for reference purposes only, solely for the convenience of the
parties hereto, and shall not in any way be deemed to affect the meaning,
interpretation or applicability of this Agreement or any term, condition or
provision hereof.
11.11. EXECUTION AND COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and such counterparts together shall
constitute only one instrument. Any one of such counterparts shall be sufficient
for the purpose of proving the existence and terms of this Agreement, and no
party shall be required to produce an original or all of such counterparts in
making such proof.
11.12. COVENANT OF FURTHER ASSURANCES. All parties to this
Agreement shall, upon request, perform any and all acts and execute and deliver
any and all certificates, instruments and other documents that may be necessary
or appropriate to carry out any of the terms, conditions and provisions hereof or
to carry out the intent of this Agreement.
11.13. REMEDIES CUMULATIVE. Each and all of the several rights and
remedies provided for in this Agreement shall be construed as being cumulative
and no one of them shall be deemed to be exclusive of the others or of any right
or remedy allowed by law or equity, and pursuit of any one remedy shall not be
deemed to be an election of such remedy, or a waiver of any other remedy.
11.14. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon all of the parties hereto and their respective executors,
administrators, successors and permitted assigns.
11.15. COMPLIANCE WITH LAWS. Nothing contained in this Agreement
shall be construed to require the commission of any act contrary to law, and
whenever there is a conflict between any term, condition or provision of this
Agreement and any present or future statute, law, ordinance or regulation
contrary to which the parties have no legal right to contract, the latter shall
prevail, but in such event the term, condition or provision of this Agreement
affected shall be curtailed and limited only to the extent necessary to bring it
within the requirement of the law, provided that such construction is consistent
with the intent of the Parties as expressed in this Agreement.
16
11.16. NO THIRD PARTY BENEFIT. Nothing contained in this Agreement
shall be deemed to confer any right or benefit on any Person who is not a party to
this Agreement.
11.17. INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. The parties
hereby agree and acknowledge that a breach of Sections 4.1 (License), 4.3
(Restricted Use) or 7 (Confidentiality) of this Agreement would result in severe
and irreparable injury to the other party, which injury could not be adequately
compensated by an award of money damages, and the parties therefore agree and
acknowledge that they shall be entitled to injunctive relief in the event of any
breach of any material term, condition or provision of this Agreement, or to
enjoin or prevent such a breach, including without limitation an action for
specific performance hereof.
11.18. APPLICABLE LAW. This Agreement shall be governed by and
construed in all respects solely in accordance with the laws of the State of Texas
United States.
11.19. JURISDICTION AND VENUE. Any dispute arising out of or in
connection with this Agreement shall be submitted to the exclusive jurisdiction
and venue of the courts located in the County of Denton and both parties
specifically agree to be bound by the jurisdiction and venue thereof.
I2 MOST f4VORED WFfON CL4&SE If during the term of this contract
Redflex should enter into any agreement with another municipality within the
greater Dallas metropolitan area for photo red light enforcement upon terms and
conditions more favorable than those granted to Customer, Reflex agrees to
modify this contract to include such favorable terms if so requested by Customer.
(The remainder of this page is left intentionally blank)
17
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day
and year first set forth above.
CITY OF DENTON,TEXAS
BY:
MICHAEL A. CONDUFF, CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDEER- CITY ATTORNEY
BY: —� �
REDFLEX TRAFFIC SYSTEMS, INC.
BY:
18
EXHIBIT"A"
Designated Intersection Approaches
The contract is for the implementation of up to 10 intersections. Identification of
enforced intersection will be based on mutual agreement between Redflex and the City as
warranted by community safety and traffic needs.
19
EXHIBIT`B"
Construction and Installation Obligations
Timeframe for Installation: Fixed Photo Red Light System
Redflex will have each specified intersection installed and activated in phases in
accordance with an implementation plan to be mutually agreed to by Redflex Traffic
Systems and the Municipality.
Redflex will use reasonable commercial efforts to install the system in accordance with
the schedule set forth in the implementation plan that will be formalized upon project
commencement.
Redflex will use reasonable commercial efforts to install and activate the first specified
intersection within the first forty-five (45) days subsequent to formal project kick-off.
The Municipality agrees that the estimated timeframe for installation and activation are
subject to conditions beyond the control of Redflex and are not guaranteed.
In order to provide the client with timely completion of the photo enforcement project
Redflex Traffic Systems requires that the City assist with providing timely approval of
City permit requests. The City acknowledges the importance of the safety program and
undertakes that in order to keep the project on schedule the customer is to provide city
engineers review of Redflex permit requests and all documentation within a two business
days. Redflex will also review and correct if necessary any redlines with in two business
days. Permits need to be received within five business days of first submittal in order to
implement the program in a timely manner.
1. Redflex Obligations. Redflex shall do or cause to be done each of the following (in
each case,unless otherwise stated below, at Redflex's sole expense):
I.I. Appoint the Redflex Project Manager and a project implementation team
consisting of between one (1) and four (4) people to assist the Redflex Project
Manager;
1.2. Request current "as-built" electronic engineering drawings for the Designated
Intersection Approaches (the "Drawings") from the city traffic engineer;
1.3. Develop and submit to the Customer for approval construction and installation
specifications in reasonable detail for the Designated Intersection Approaches,
including but not limited to specifications for all radar sensors, pavement loops,
electrical connections and traffic controller connections, as required; and
1.4. Seek approval from the relevant Governmental Authorities having authority or
jurisdiction over the construction and installation specifications for the
Designated Intersection Approaches (collectively, the "Approvals"), which will
include compliance with City permit applications.
1.5. Finalize the acquisition of the Approvals;
1.6. Submit to the Customer a public awareness strategy for the Customer's
consideration and approval, which strategy shall include media and educational
materials for the Customer's approval or amendment(the "Awareness Strategy");
1.7. Develop the Redlight Violation Criteria in consultation with the Customer;
20
1.8. Develop the Enforcement Documentation for approval by the Customer, which
approval shall not be unreasonably withheld;
1.9. Complete the installation and testing of all necessary Equipment, including
hardware and software, at the Designated Intersection Approaches (under the
supervision of the Customer);
1.10. Cause an electrical sub-contractor to complete all reasonably necessary
electrical work at the Designated Intersection Approaches, including but not
limited to the installation of all related Equipment and other detection sensors,
poles,cabling,telecommunications equipment and wiring,which work shall be
performed in compliance with all applicable local, state and federal laws and
regulations;
1.11. Install and test the functionality of the Designated Intersection Approaches
with the Redflex System and establish fully operational Violation processing
capability with the Redflex System;
1.12. Implement the use of the Redflex System at each of the Designated
Intersection Approaches;
1.13. Deliver the Materials to the Customer; and
1.14. Issue citation notices for Authorized Violations;
1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the
Customer, including but not limited to the persons who Customer shall appoint as
Authorized Officers and other persons involved in the administration of the
Redlight Photo Enforcement Program, (ii) for at least sixteen (16) hours in the
aggregate, (iii) regarding the operation of the Redflex System and the Redlight
Photo Enforcement Program, which training shall include training with respect to
the Redflex System and its operations, strategies for presenting Violations Data
in administrative adjudication hearing proceedings and a review of the
Enforcement Documentation;
1.16. Interact with administrative adjudication hearing personnel to address
issues regarding the implementation of the Redflex System,the development of a
subpoena processing timeline that will permit the offering of Violations Data in
adjudication proceedings, and coordination between Redflex, the Customer and
adjudication personnel; and
1.17. Provide reasonable public relations resources and media materials to the
Customer in the event that the Customer elects to conduct a public launch of the
Redlight Photo Enforcement Program.
1.18. Setup processes to collect payments from citizens on Notice of Violation
using a local mailing address in the Dallas metropolitan area and establish a
relationship with a collection agency to pursue any unpaid citations
1.19. Citation processing and citation re-issuance
2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of
the following (in each case, unless otherwise stated below, at Customer's sole
expense):
2.1.1. Appoint the Police Project Manager; Provide an Administrative Hearing
Officer to preside over Appeals Hearing for the City.
2.1.2. Assist Redflex in obtaining the Drawings from the relevant Governmental
Authorities;
21
2.1.3. Notify Redflex of any specific requirements relating to the construction
and installation of any Intersection Approaches or the implementation of the
Redlight Photo Enforcement Program;
2.1.4. Provide assistance to Redflex in obtaining access to the records data of the
Department of Motor Vehicles in Redflex's capacity as an independent
contractor to the Customer;and
2.1.5. Assist Redflex in seeking the Approvals
2.1.6. Provide reasonable access to the Customer's properties and facilities in
order to permit Redflex to install and test the functionality of the Designated
Intersection Approaches and the Redlight Photo Enforcement Program;
2.1.7. Provide reasonable access to the personnel of the Customer and reasonable
information about the specific operational requirements of such personnel
for the purposes of performing training;
2.1.8. Seek approval or amendment of Awareness Strategy and provide written
notice to Redflex with respect to the quantity of media and program
materials (the "Materials") that the Customer will require in order to
implement the Awareness Strategy during the period commencing on the
date on which Redflex begins the installation of any of the Designated
Intersection Approaches and ending one (1) month after the Installation
Date;
2.1.9. Assist Redflex in developing the Redlight Violation Criteria; and
2.1.10. Seek approval of the Enforcement Documentation.
22
Exhibit"E"
Additional Rights and Obligations
Redflex and the Customer shall respectively have the additional rights and obligations set
forth below:
1. Redflex shall assist the Customer in public information and education efforts,
including but not limited to the development of artwork for utility bill inserts, press
releases and schedules for any public launch of the Redlight Photo Enforcement
Program (actual print and production costs are the sole responsibility of the
Customer).
2. Redflex shall be solely responsible for installing such Signage. The Customer shall be
solely responsible for the fabrication of any signage, notices or other postings
required pursuant to any law, rule or regulation of any Governmental Authority
("Signage"), including but not limited to the Vehicle Code, and shall assist in
determining the placement of such Signage.
3. The Redflex Project Manager and the Police Project Manager shall meet on a weekly
basis during the period commencing as of the date of execution hereof and ending on
the Installation Date, and on a monthly basis for the remainder of the Term, at such
times and places as the Redflex Manager and the Customer Manager shall mutually
agree.
4. The Customer shall not access the Redflex System or use the Redlight Photo
Enforcement Program in any manner other than prescribe by law and which restricts
or inhibits any other Person from using the Redflex System or the Redflex Photo
Enforcement Program with respect to any Intersection Approaches constructed or
maintained by Redflex for such Person, or which could damage, disable, impair or
overburden the Redflex System or the Redflex Photo Enforcement Program, and the
Customer shall not attempt to gain unauthorized access to (i)any account of any other
Person, (ii) any computer systems or networks connected to the Redflex System, or
(iii) any materials or information not intentionally made available by Redflex to the
Customer by means of hacking, password mining or any other method whatsoever,
nor shall the Customer cause any other Person to do any of the foregoing.
5. The Customer shall maintain the confidentiality of any username, password or other
process or device for accessing the Redflex System or using the Redlight Photo
Enforcement Program.
6. Each of Redflex and the Customer shall advise each other in writing with respect to
any applicable rules or regulations governing the conduct of the other on or with
respect to the property of such other party, including but not limited to rules and
regulations relating to the safeguarding of confidential or proprietary information, and
when so advised, each of Redflex and the Customer shall obey any and all such rules
and regulations.
7. The Customer shall promptly reimburse Redflex for the cost of repairing or replacing
any portion of the Redflex System, or any property or equipment related thereto,
damaged directly or indirectly by the Customer, or any of its employees, contractors
or agents.
25
Insurance
1. During the Term, Redflex shall procure and maintain and Redflex's sole cost and
expense the following insurance coverage with respect to claims for injuries to
persons or damages to property which may arise from or in connection with the
performance of work or services pursuant to this Agreement by Redflex, and each
of Redflex's subcontractors, agents, representatives and employees:
2. Commercial General Liability Insurance. Commercial General Liability
Insurance with coverage of not less than One Million Dollars ($1,000,000)
combined single limit per occurrence for bodily injury and property damage;
3. Commercial Automobile Liability Insurance. Commercial Automobile Liability
Insurance with coverage of not less than One Million Dollars ($1,000,000)
combined single limit per occurrence for bodily injury or property damage,
including but not limited to coverage for all automobiles owned by Redflex,hired
by Redflex, and owned by third parties;
4. Professional Liability (Errors and Omissions) Insurance. Redflex will use its
commercial best efforts to procure and maintain Professional Liability(Errors and
Omissions) Insurance with coverage of not less than One Million Dollars
($1,000,000)per occurrence and in the aggregate.
5. Workers' Compensation and Employer's Liability Insurance. Workers'
Compensation Insurance with coverage of not less than the limits required by the
Labor Code of the State of (insert name), Employer's Liability Insurance with
coverage of not less than One Million Dollars ($1,000,000)per occurrence.
6. With respect to the insurance described in the foregoing Section of this Exhibit E,
any deductibles or self-insured retentions must be declared to and approved by the
Customer, and any changes to such deductibles or self-insured retentions during
the Term must be approved in advance in writing by the Customer.
7. With respect to the Commercial General Liability Insurance the following
additional provisions shall apply:
8. The Customer Parties shall be covered as additional insureds with respect to any
liability arising from any act or omission of any Redflex Parties on the premises
upon which any such Redflex Parties may perform services pursuant to this
Agreement, and such coverage shall contain no special limitations on the scope of
protection afforded to such additional insureds.
9. The insurance coverage procured by Redflex and described above shall be the
primary insurance with respect to the Customer Parties in connection with this
Agreement, and any insurance or self-insurance maintained by any of the (insert
name) shall be in excess, and not in contribution to, such insurance.
10. Any failure to comply with the reporting provisions of the various insurance
policies described above shall not affect the coverage provided to the (insert
names), and such insurance policies shall state the such insurance coverage shall
apply separately with respect to each additional insured against whom any claim
is made or suit is brought, except with respect to the limits set forth in such
insurance policies.
11.With respect to the insurance described in the foregoing Section of this Exhibit E,
each such insurance policy shall be endorsed to state that the coverage provided
thereby shall not be cancelled except after thirty (30) calendar days' prior written
26
notice to the Customer. If any of the Redflex Parties are notified by any insurer
that any insurance coverage will be cancelled, Redflex shall immediately provide
written notice thereof to the Customer and shall take all necessary actions to
correct such cancellation in coverage limits, and shall provide written notice to
the Customer of the date and nature of such correction. If Redflex, for any
reason, fails to maintain the insurance coverage required pursuant to this
Agreement, such failure shall be deemed a material breach of this Agreement, and
the Customer shall have the right,but not the obligation and exercisable in its sole
discretion, to either (i) terminate this Agreement and seek damages from Redflex
for such breach, or (ii) purchase such required insurance, and without further
notice to Redflex, deduct from any amounts due to Redflex pursuant to this
Agreement, any premium costs advance by the Customer for such insurance. If
the premium costs advanced by the Customer for such insurance exceed any
amounts due to Redflex pursuant to this Agreement, Redflex shall promptly remit
such excess amount to the Customer upon receipt of written notice thereof.
12. Redflex shall provide certificates of insurance evidencing the insurance required
pursuant to the terms of this Agreement, which certificates shall be executed by
an authorized representative of the applicable insurer, and which certificates shall
be delivered to the Customer prior to Redflex commencing any work pursuant to
the terms of this Agreement.
27
Exhibit F
FORM OF ACKNOWLEDGMENT AND CONSENT
This Acknowledgement and Consent,dated as of , 2005, is
entered into by and between the City of (the "City") and Redflex Traffic
Systems, Inc., ("Redflex"),with reference to the [Agreement for Automated Red Light
Photo Enforcement Cameras], dated as of by and between the City
and Redflex(the "Agreement").
1. Redflex has entered into a Credit Agreement, dated as of August 3, 2004
(the "Harris-Redflex Credit Agreement"),with Harris Trust and Savings Bank(the
"Bank"),pursuant to which the Bank has provided certain working capital credit facilities
to Redflex. Such credit facilities will provide Redflex the working capital that it needs to
perform its obligations to the City under the Agreement.
2. Pursuant to the Harris-Redflex Credit Agreement, Redflex has granted
Harris a security interest in all of Redflex's personal property as collateral for the
payment and performance of Redflex's obligations to the Bank under the Harris-Redflex
Credit Agreement. Such security interest applies to and covers all of Redflex's contract
rights, including,without limitation, all of Redflex's rights and interests under the
Agreement.
3. Redflex will not,by virtue of the Harris-Redflex Credit Agreement,be
relieved of any liability or obligation under the Agreement, and the Bank has not
assumed any liability or obligation of Redflex under the Agreement.
4. The City hereby acknowledges notice of, and consents to, Redflex's grant
of such security interest in favor of the Bank in all of Redflex's rights and interests under
the Agreement pursuant to the Harris-Redflex Credit Agreement.
5. The City further acknowledges and agrees that this Acknowledgement and
Consent shall be binding upon the City and shall inure to the benefit of the successors and
assigns of the Bank and to any replacement lender which refinances Redflex's obligations
to the Bank under the Harris-Redflex Credit Agreement.
IN WITNESS WHEREOF,the City and Redflex have caused this
Acknowledgement and Consent to be executed by their respective duly authorized and
elected officers as of the date first above written.
..........................................................................................................................................................................................................................................................................................................................................................................................................................................................................
The City: Redflex:
[Name of City] REDFLEX TRAFFIC SYSTEMS, INC.
By: By:
Name: Name:
Title: Title:
:...........................................................................................................................................................................................................................................................................................................................................................................................................................................................................:
28
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Janet Fitzgerald 349-8274
ACM: Jon Fortune
SUBJECT
Consider adoption of an Ordinance accepting competitive proposals and awarding a contract for
the purchase of fencing materials for the Lake Forest Dog Park; providing for the expenditure of
funds therefore; and providing an effective date (RFP 3402-Lake Forest Dog Park Fencing
awarded to Hurricane Fence in the amount of$25,144.48).
BID INFORMATION
This bid is for the fencing materials and supplies for perimeter and cross fencing of the
approximately 3-acre Lake Forest Dog Park. The vinyl coated galvanized chain link fencing was
chosen for longevity, safety, and appearance. The Park Maintenance Division will install the
fencing and gates at considerable savings to the City.
RECOMMENDATION
Award to Hurricane Fence in the amount of$25,144.48
PRINCIPAL PLACE OF BUSINESS
Hurricane Fence
Denton, TX
ESTIMATED SCHEDULE OF PROJECT
The Parks Maintenance staff is scheduled to complete installation of the fence by March 2006.
FISCAL INFORMATION
This item will be funded from Parks account 400041440.1365.40100.
Agenda Information Sheet
November 15, 2005
Page 2
Respectfully submitted:
Tom Shaw, C.P.M., 349-7100
Purchasing Agent
Attachment 1: Tabulation Sheet
1-AIS-Bid 3402
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ORDINANCE NO.
AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A
CONTRACT FOR THE PURCHASE OF FENCING MATERIALS FOR THE LAKE FOREST
DOG PARK; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE (RFP 3402-LAKE FOREST DOG PARK FENCING
AWARDED TO HURRICANE FENCE IN THE AMOUNT OF $25,144.48).
WHEREAS,the City has solicited,received and tabulated competitive bids for the purchase
of necessary materials,equipment, supplies or services in accordance with the procedures of STATE
law and City ordinances; and
WHEREAS, the City Manager or a designated employee has reviewed and recommended
that the herein described bids are the lowest responsible bids for the materials, equipment, supplies
or services as shown in the "Bid Proposals" submitted therefore; and
WHEREAS,the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. 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
3402 Hurricane Fence $25,144.48
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, CITY ATTORNEY
BY:
3-ORD-Bid 3402
2
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Tax
ACM: Jon Fortune
SUBJECT
Consider adoption of an ordinance authorizing the Mayor to execute an amended agreement
between the City of Denton and the Denton County Historical Commission, Inc. for the payment
and use of hotel tax revenue; and providing an effective date.
BACKGROUND
On September 7, 2005, the Denton County Historical Commission, Inc. was awarded a contract
totaling $12,500 funded by Hotel Occupancy Taxes for the 2006 program year. The approved
contract allows for advertising dollars to be expended in the promotion of the John B. Denton
Days event. In addition, the agency was to receive quarterly installments of the Hotel
Occupancy Tax Funds. In order to actively engage advertising opportunities, the agency has
requested to receive the funds in one lump sum during the first quarter of the program year
(January 2006).
PRIOR ACTION/REVIEW
The Hotel Occupancy Tax Committee reviewed this request and recommends that the contract be
amended.
FISCAL INFORMATION
The Hotel Occupancy Tax allocation for this agency is $12,500 for FY 2005-2006 and has been
included in the Annual Program of Services.
Respectfully submitted:
Diana G. Ortiz
Chief Financial Officer
CI DOCUME-.11cadicklLOCAIS-11Temp1DCHC amended.doc
ORDINANCE NO.
AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AMENDED
AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON COUNTY
HISTORICAL COMMISSION, INC. FOR THE PAYMENT AND USE OF HOTEL TAX
REVENUE; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the Mayor is hereby authorized to execute an amended agreement
between the City of Denton and the Denton County Historical Commission for the payment and
use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of
which is attached hereto and made a part hereof.
SECTION II. 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. SNYDE TORNEY
r
AMENDED AGREEMENT BETWEEN THE CITY OF DENTON AND
THE DENTON COUNTY HISTORICAL COMMISSION,INC.,FOR THE PAYMENT
AND USE OF HOTEL TAX REVENUE IN SUPPORT OF THE DENTON COUNTY
HISTORICAL COMMISSION, INC. (PY2006)
THIS AGREEMENT is made between the City of Denton, Texas, a municipal corporation
(the "CITY"), and THE DENTON COUNTY HISTORICAL COMMISSION, INC., a legal
entity incorporated under the laws of the State of Texas(the"DCHC"):
WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal
hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a
hotel occupant; and
WHEREAS, by ordinance, CITY has provided for the assessment and collection of a
municipal hotel occupancy tax in the City of Denton of seven percent(7 1/o); and
WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its
municipal hotel occupancy tax to promote tourism and the convention and hotel industry, by
advertising and conducting solicitations and promotional programs to attract tourists and convention
delegates or registrants to the municipality or its vicinity; and
WHEREAS,DCHC is well equipped to perform those activities; and
WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with
DCHC, as an independent entity, the management and supervision of programs and activities of the
type described hereinabove funded with revenue from the municipal hotel occupancy tax; and
WHEREAS, DCHC has requested amendment of a prior agreement, in order to enable
payment of hotel taxes as a lump sum, and such request is acceptable to CITY as satisfactory of the
purposes to be achieved;
NOW, THEREFORE, in consideration of the performance of the mutual covenants and
promises contained herein, CITY and DCHC agree and contract as follows:
I. HOTEL TAX REVENUE PAYMENT
1.1 Consideration. For and in consideration of the activities to be performed by DCHC under
this Agreement, CITY agrees to pay to DCHC a portion of the hotel tax revenue collected by CITY
at the rates and in the manner specified herein(such payments by CITY to DCHC sometimes herein
referred to as the"agreed payments"or"hotel tax funds').
1.2 Amount of Payments.
(a) As used in this Agreement, the following terms shall have the following specific
meanings:
AMENDED HOT Funds PY2006 Denton County Historical Commission-Page 1
(i) The term "hotel tax revenue" shall mean the gross monies collected and
received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of
the price paid for a room in a hotel, pursuant to Texas Tax Code 351.002 and City
Ordinance. Hotel tax revenue will include penalty and interest related to the late
payments of the tax revenue by the taxpayer.
(ii) The term "Collection period" will mean the collection period for CITY's
fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and
collected through the 22nd day of the month following the close of the relevant fiscal year.
(iii) The term "base payment amount" shall mean a net amount of money equal
to the total hotel tax revenue collected by CITY during any relevant period of time (i.e.,
fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such
relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and
auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for
which attorneys or agents effect compliance or collection of the hotel tax from taxpayers);
and, (2) court costs and other expenses incurred in litigation against, or auditing of, such
taxpayers.
(iv) The term "contract quart er" shall refer to any quarter of the calendar year in
which this Agreement is in force. Contract quarters will end on March 31St, June 30th,
September 30th, and December 31St of each contract year.
(b) In return for satisfactory performance of the activities set forth in this Agreement
and all attachments hereto, CITY shall pay to DCHC a fixed contract amount of Twelve
Thousand Five Hundred Dollars ($12,500) as a lump sum, from hotel tax receipts.
1.3 Dates of Payments.
(a) The amount specified in 11.2, above, shall be paid as a lump sum on or before January
25, 2006.
1.4 Other limitations regarding consideration.
(a) The funding of this project in no way commits CITY to future funding of this program
beyond the currant contract period. Any future funding is solely the responsibility of DCHC.
(b) It is expressly understood that this contract in no way obligates the General Fund or any
other monies or credits of CITY.
(c) CITY may withhold further allocations if CITY determines that DCHC expenditures
deviate materially from their approved budget.
AMENDED HOT Funds PY2006 Denton County Historical Commission-Page 2
II. USE OF HOTEL TAX REVENUE
2.1 Use of Funds. For and in consideration of the payment by CITY to DCHC of the agreed
payments of hotel tax funds specified above, DCHC agrees to use such hotel tax funds only for
advertising and conducting solicitations and promotional programs to attract tourists and convention
delegates or registrants to the municipality or its vicinity, as well as activities to encourage tourists
and convention delegates to visit preserved historic sites and museums, as authorized by TEX. TAX
CODE §351.101(a)(3) and (a)(5). Funds for any calendar year which are unused by midnight
December 31St of that year shall be refunded to CITY within.sixty(60)days.
2.2 Administrative Costs. The hotel tax funds received from CITY by DCHC may be spent
for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs
allowed by TEX. TAX CoDE §351.101(#), only if each such expenditure is directly attributable to
work on programs, which promote tourism and the hotel and convention industry, and promotes at
least one of the six statutory purposes enumerated within TEX. TAX CODE§351.101(a).
2.3 Specific Restrictions on Use of Funds.
(a) DCHC agrees to demonstrate strict compliance with the record keeping and
apportionment limitations imposed by TEX. TAX CODE §351.101(f) and §351.108 (c) and (d).
DCHC shall not utilize hotel tax funds for any expenditure which has not been specifically
documented to satisfy the purposes set forth in T$2.1 and 2.2 above.
(b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct
an activity, the primary purpose of which is not directly related to the promotion of local tourism
and the convention and hotel industry and the performance of the person's job in an efficient and
professional manner.
III. RECORDKEEPING AND REPORTING REQUIREMENTS
3.1 Budget.
(a) DCHC shall prepare and submit to the City Manager of CITY an annual budget (see
Exhibit "X) as approved by the City Council for each calendar year, for such operations of DCHC
in which the hotel tax funds shall be used by DCHC. This budget shall specifically identify
proposed expenditures of hotel tax funds by DCHC. In other words, CITY should be able to audit
specifically the purpose of each individual expenditure of hotel tax funds in the separate account
relating to hotel tax funds. CITY shall not pay to DCHC any hotel tax revenues as set forth in
Section I of this contract during any program year of this Agreement unless a budget for such
respective program year has been approved in writing by the Denton City Council authorizing the
expenditure of funds. Failure to submit an annual budget may be considered a breach of contract,
and if not remedied is considered grounds for termination of this Agreement as stated in paragraph
4.2.
(b) DCHC acknowledges that the approval of such budget by the Denton City Council
creates a fiduciary duty in DCHC with respect to the hotel tax funds paid by CITY to DCHC under
AMENDED HOT Funds PY2006 Denton County Historical Commission-Page 3
this Agreement. DCHC shall expend hotel tax funds only in the manner and for the purposes
specified in this Agreement,TEX. TAX CODE. §351.101(a)and in the budget as approved by CITY.
3.2 Separate Accounts. DCHC shall maintain any hotel tax funds paid to DCHC by CITY in
a separate account or with segregated fund accounting, such that any reasonable person can
ascertain the revenue source of any given expenditure.
3.3 Financial Records. DCHC shall maintain complete and accurate financial records of
each expenditure of the hotel tax funds made by DCHC. These funds are required to be classified
as restricted funds for audited financial purposes, and may not be used for contracted services,
including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written
request of the Denton City Council, the City Manager or designate, or any other person, DCHC
shall make such financial records available for inspection and review by the party making the
request. DCHC understands and accepts that all such financial records, and any other records
relating to this Agreement shall be subject to the Public Information Act, TEX. GOVT CODE, ch.
552, as hereafter amended.
3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the
end of every contract quarter, DCHC shall furnish to CITY: (1) a completed financial report , (2) a
list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds
pursuant to TEX. TAX CODE §351.101(c), and(3) a copy of all financial records(e.g., front and back
copies of cleared checks or bank statements, and other relevant documentation), DCHC shall
prepare and deliver all reports in a form and manner approved by the City Manager or designate.
DCHC shall respond promptly to any request from the City Manager of CITY, or designate, for
additional information relating to the activities performed under this Agreement.
3.5 Notice of Meetings. DCHC shall give the City Manager of CITY, or his designate,
reasonable advance written notice of the time and place of all meetings of DCHC Boards of
Directors, as well as any other meeting of any constituency of DCHC, at which this Agreement or
any matter subject to this Agreement shall be considered.
IV. TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence on January 1, 2006 and terminate at
midnight on January 31, 2007. However, the program period shall commence on January 1, 2006
and terminate at midnight on December 31, 2006. Only those expenditures authorized by Chapter
351 of the Texas Tax Code and the program guidelines, which are actually incurred during the
program period, for events and activities taking place within the program period, are eligible for
funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to
CITY upon termination of the Agreement.
4.2 Termination Without Cause.
(a) This Agreement may be terminated by either party, with or without cause,by giving
the other party sixty(60) days advance written notice.
AMENDED HOT Funds PY2006 Denton County Historical Commission-Page 4
(b) In the event this contract is terminated by either party pursuant to Section 4.2(a),
CITY agrees to reimburse DCHC for any contractual obligations of DCHC undertaken by
DCHC (or permitted subcontractor) in satisfactory performance of those activities specified in
112.1 and 2.2 above, and that were approved by the Council through the budget, as noted in¶3.1.
This reimbursement is conditioned upon such contractual obligations having been incurred and
entered into in the good faith performance of those services contemplated in J¶2.1 and 2.2 above,
and further conditioned upon such contractual obligations having a term not exceeding the full
term of this Agreement.
(c) Further, upon termination pursuant to 14.2(a), DCHC will provide CITY: 1) Within
10 business days from the termination notification, a short-term budget of probable expenditures
for the remaining 60 day period between termination notification and contract termination. This
budget will be presented to Council for approval within 10 business days after receipt by CITY.
If formal approval is not given within 10 business days, the budget does not contain any
expenditures that would be prohibited by the Texas Tax Code, and is within the current
contractual period approved budget, the budget will be considered approved; 2) Within 30 days,
a full accounting of all expenditures not previously audited by CITY; 3) Within 5 business days
of a request from CITY, a listing of expenditures that have occurred since the last required
reporting period; and, 4) a final accounting of all expenditures and tax funds on the day of
termination. DCHC will be obligated to return any unused funds, or funds determined to be used
improperly. Any use of remaining funds by DCHC after notification of termination is
conditioned upon such contractual obligations having been incurred and entered into in the good
faith performance of those services contemplated in 2.1 and 2.2 above, and further conditioned
upon such contractual obligations having a term not exceeding the full term of this Agreement.
4.3 Automatic Termination. This Agreement shall automatically terminate upon the
occurrence of any of the following events:
(a) The termination of the legal existence of DCHC;
(b) The insolvency of DCHC, the filing of a petition in bankruptcy, either voluntarily or
involuntarily, or an assignment by DCHC for the benefit of creditors;
(c) The continuation of a breach of any of the terms or conditions of this Agreement by any
party for more than thirty (30) days after written notice of such breach is given to the breaching
party by the other party; or
(d) The failure of DCHC to submit a financial quarterly report which complies with the
reporting procedures required herein and generally accepted accounting principles prior to the
beginning of the next contract term,or quarterly as required by Section 1.3 hereof.
4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision
of this Agreement, to mitigate damages and to preserve evidence and issues for judicial
determination, either party shall have the right to terminate this Agreement upon immediate notice
to the other party in the event that any person has instituted litigation concerning the activities of the
AMENDED HOT Funds PY2006 Denton County Historical Commission-Page 5
non-terminating party, and the terminating party reasonably believes that such activities are required
or prohibited under this Agreement.
4.5 In the event that this Agreement is terminated pursuant to X143 or 4.4, DCHC agrees to
refund any and all unused funds, or funds determined by CITY to have been used improperly,
within 30 days after termination of this Agreement.
V. GENERAL PROVISIONS
5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor
be construed to prohibit, the agreement by DCHC with another private entity, person, or
organization for the performance of those services described in 12.1 above. In the event that DCHC
enters into any arrangement, contractual or otherwise,with such other entity,person or organization,
DCHC shall cause such other entity,person, or organization to adhere to, conform to, and be subject
to all provisions, terms, and conditions of this Agreement and to TEx. TAx CODE ch. 351, including
reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to
expenditure of the agreed payments and hotel tax funds.
5.2 Independent Contractor. DCHC shall operate as an independent contractor as to all
services to be performed under this Agreement, and not as an officer, agent, servant, or employee of
CITY. DCHC shall have exclusive control of its operations and performance of services hereunder,
and such persons, entities, or organizations performing the same, and DCHC shall be solely
responsible for the acts and omissions of its directors, officers, employees, agents, and
subcontractors. DCHC shall not be considered a partner or joint venturer with CITY, nor shall
DCHC be considered, nor in any manner hold itself out as, an agent or official representative of
CITY.
5.3 Indemnification. TO THE EXTENT AUTHORIZED BY LAW,DCHC AGREES TO
INDEMNIFY,HOLD HARMLESS,AND DEFEND CITY,ITS OFFICERS,AGENTS,AND
EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR
INJURIES,DAMAGE,LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER,
ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY DCHC OF
THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL
SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON,
CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART,
UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF DCHC, ITS
OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND
INVITEES.
5.4 Assignment. DCHC shall not assign this Agreement without first obtaining the written
consent of CITY.
5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or
regulation, shall be effective when given in writing and deposited in the United States mail, certified
mail,return receipt requested, or by hand-delivery, addressed to the respective parties as follows:
AMENDED HOT Funds PY2006 Denton County Historical Commission-Page 6
CITY DCHC
City Manager Denton County Historical Commission, Inc.
City of Denton ATTN: Tom Reedy
215 E.McKinney 110 W. Hickory St.
Denton,TX 76201 Denton, Texas 76201
5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty,
obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation
of CITY and DCHC and their respective successors and assigns.
5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject
to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed
pursuant thereto, and all judicial determinations relative thereto.
5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes
the entire agreement between the parties hereto concerning the subject matter contained herein.
There are no representations, agreements, arrangements, or understandings, oral or written, express
or implied, between or among the parties hereto, relating to the subject matter of this Agreement,
which are not fully expressed herein. The terms and conditions of this Agreement shall prevail,
notwithstanding any variance in this Agreement from the terms and conditions of any other
document relating to this transaction or these transactions.
5.9 Duplicate Originals. This Agreement is executed in duplicate originals.
5.10 Headings. The headings and subheadings of the various sections and paragraphs of this
Agreement are inserted merely for the purpose of convenience and do not express or imply any
limitation, definition, or extension of the specific terms of the section and paragraph so designated.
5.11 Severability. If any section, subsection, paragraph, sentence, clause,phrase or word in this
Agreement, or application thereof to any person or circumstance is held invalid by any court of
competent jurisdiction, such holding shall not affect the validity of the remaining portions of this
Agreement, and the parties hereby declare they would have enacted such remaining portions despite
any such invalidity.
5.12 Insurance.DCHC shall provide insurance as follows:
1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering
all events taking place on City-owned property
2. Statutory Workers' Compensation and Employers' Liability
($100,0001$500,0001$100,000)
3. $250,000 Liquor/Dram Shop Liability for any event occurring on City-owned
property where alcohol will be provided or served
CITY must be named as an additional insured on all policies (except Workers' Compensation), and
proof of coverage shall be submitted prior to any payment by the CITY.
AMENDED HOT Funds PY2006 Denton County Historical Commission-Page 7
EXECUTED this day of 52005.
THE CITY OF DENTON, TEXAS
By:
EULINE BROCK,MAYOR
ATTEST: APPROVED AS TO LEGAL FORM:
By:
JENNIFER WALTERS, EDWIN M. SNYDE
CITY SECRETARY CITY ATTORNEY
DENTON COUNTY HISTORICAL
COMMISSION, INC.
By:
ATTEST: APPROVED AS TO LEGAL FORM:
By: By:
Secretary
AMENDED HOT Funds PY2006 Denton County Historical Commission-Page 8
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Airport and Transportation O erations
ACM: Howard Martin, 349-8232
SUBJECT
Consider the adoption of an ordinance of the City of Denton, Texas terminating that certain
Airport lease dated November 2, 2004, by and between the City of Denton, Texas and Terrence
Jarog; authorizing the City Attorney or his designee to take appropriate legal action, if necessary,
to effectuate the termination; and providing an effective date. (The Airport Advisory Board
unanimously recommends approval, 5-0.)
BACKGROUND
Mr. Terrence Jarog has indicated that he will not meet the obligations of the lease agreement
dated November 2, 2004. Airport management is agreeable the termination of the lease
agreement as it would allow the property to be used for other development opportunities.
PRIOR ACTION/REVIEW
The City Attorney has reviewed the lease termination and the Airport Advisory Board
recommends approval of the proposed cancellation 5-0. Staff recommends approval of the
termination of the lease agreement.
FISCAL INFORMATION
The Jarog lease agreement required an annual land lease payment of$334.80 dollars.
EXHIBITS
1. Ordinance
Respectfully submitted:
Mark Nelson, Director
Chief Transportation Official
SAOur Documents\Ordina= 051Jarog termination-doe
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS TERMINATING THAT CERTAIN
AIRPORT LEASE DATED NOVEMBER 2, 2004, 13Y AND BETWEEN THE CITY OF
DENTON, TEXAS AND TERENCE JAROG; 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 Terence Jarog (the "Lessee")
entered into that certain Airport Lease Agreement dated November 2, 2004 (the "Lease
Agreement"); and whereby the City leased to the Lessee for aviation purposes an approximate
2,790 square feet of land which are more particularly described in the Lease Agreement by
reference (the"Leased Property"); and
WHEREAS, pursuant to the Lease Agreement, the Lessee has the duty and obligation to
pay rental in the amount of$27.90 per month for the Leased Property beginning on December 1,
2004 (the"Rent"); and
WHEREAS, the Lessee's obligation to pay the rent is a material obligation of the Lessee
under the Lease Agreement; and
WHEREAS,no payment of the rent has been made to date; and
WHEREAS, on September 6, 2005, the Lessee was given written notice that he was in
default under the Lease Agreement for non payment of rent and other breaches of the Lease,
given 30 days to correct the condition of default or the Lease would be terminated which is
attached hereto as Exhibit "A" and incorporated herein by reference and Lessee has failed to
correct the default within this period;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 Council hereby terminates the Lease Agreement due to
nonperformance of a material obligation of Mr. Jarog 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 Mr. Jarog from the Leased Property or to
determine and enforce 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.
EXHIBIT 1
SA0ur Documents\Ordinances1051Tarog termination.doc
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, CITY ATTORNEY
BY:
Page 2
EXHIBIT A
City `
of
"DE . 0 .
DENTON MUNICIPAL AIRPORT, TERMINAL BUILDING,5000 AIRPORT RD.
DENTON, TEXAS 76207 (940)349-7736-(940)349-7744-Fax(940)3.49-7289
September 6, 2005
Terence farog
PO Box 3063
Denton, TX 76202
VIA CERTIFIED MAIL: 7004 2890 0403 5971 1187
Dear Mr. 7arog:
I wanted to take the opportunity to follow up with you concerning your lease agreement
with the City of Denton dated November 2, 2004. As you know,the agreement requires
monthly payments in the amount of$27.90 to begin December 1, 2004 and a building
permit to be issued 270 days after the execution date of the lease agreement.
Airport staff has contacted Building Inspections, Engineering and other development
related departments within the city and none of these departments are familiar with your
project. Furthermore, we have not received payment on your account per the terms of
your lease agreement. These items constitute a material breach of your lease agreement.
As such, airport management is providing you written notice to correct the conditions
identified above in 30 days, namely,the issuance of a building permit and the payment of
$279.00 for the 10 months of past due payments. Failure to correct the identified
conditions within 30 days will result in the termination of your lease agreement by a
separate written notice. The City of Denton may elect to undertake legal action to collect
any delinquent rental or other damages to the City resulting from your default under the
terms of your lease agreement.
Sincerely,
Mar Nelson, CM
Director, Airport and Transportation Operations
CC: Denton Airport Advisory Board
Ed Snyder, City Attorney
"Dadicatezt to Quality Serui&'
mzow.ci tyo fden to n.co m
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Human Resources
ACM: Michael A. Conduff
SUBJECT
Consider and confirm the appointment by the City Manager of a new member to the Civil
Service Commission.
BACKGROUND
Civil Service Commissioner, Dennis Stephens, ended his term on the Civil Service Commission
effective August 2005, as a result of a term limit. Therefore, in compliance with Chapter
143.006(b) of the Texas Local Government Code, the municipality's chief executive (City
Manager) shall appoint a member to serve a three-year term and appointment shall be confirmed
by the governing body.
RECOMMENDATION
The City Manager has elected to appoint Abraham Benavides, Assistant Professor of Public
Administration at the University of North Texas, to the Civil Service Commission.
FISCAL INFORMATION
This item has no fiscal impact.
Attachment: Chapter 143.006
Dr. Abraham Benavides' bio
Respectfully submitted:
*Komme'aria J.
Director of Human Resources
1
(d) If an election is held under Subsection (b) , a petition
for a subsequent election to be held under that subsection may not
be filed for at least one year after the date the previous election
was held. To be valid, a petition for a subsequent election must
contain the signatures of a number of qualified voters of the
municipality equal to at least 20 percent of the number of voters
who voted in the most recent municipal election. Any subsequent
election must be held at the next general municipal election that
occurs after the petition is filed.
(e) If the governing body of a municipality that has
operated under this chapter for at least one year receives a
petition requesting an election to repeal this chapter that is
signed by at least 10 percent of the qualified voters of the
municipality, the governing body shall order an election submitting
to the voters the question on whether this chapter should be
repealed. If a majority of the qualified voters vote to repeal this
chapter, this chapter is void in that municipality.
Acts 1987, 70th Leg. , ch. 149, Sec. 1, ef .f. Sept. 1, 1987.
Sec. 143.005. STATUS OF EMPLOYEES IF CHAPTER ADOPTED. Each
fire fighter or police officer serving in a municipality that
adopts this chapter and who has been in the service of the
municipality for more than six months at the time this chapter is
adopted and who is entitled to civil service classification has the
status of a civil service employee and is not required to take a
competitive examination to remain in the position the person
occupies at the time of the adoption.
Acts 1987, 70th Leg. , ch. 149, Sec. 1, ef .f. Sept. 1, 1987.
Sec. 143.006. IMPLEMENTATION: COMMISSION. (a) On
adoption of this chapter, the Fire Fighters' and Police Officers'
Civil Service Commission is established in the municipality. The
chief executive of the municipality shall appoint the members of
the commission within 60 days after the date this chapter is
adopted. Within 30 days after the date the municipality's first
full fiscal year begins after the date of the adoption election, the
governing body of the municipality shall implement this chapter.
(b) The commission consists of three members appointed by
the municipality's chief executive and confirmed by the governing
3
body of the municipality. Members serve staggered three-year terms
with the term of one member expiring each year. If a vacancy occurs
or if an appointee fails to qualify within 10 days after the date of
appointment, the chief executive shall appoint a person to serve
for the remainder of the unexpired term in the same manner as the
original appointment.
(c) A person appointed to the commission must:
(1) be of good moral character;
(2) be a United States citizen;
(3) be a resident of the municipality who has resided
in the municipality for more than three years;
(4) be over 25 years of age; and
(5) not have held a public office within the preceding
three years.
(d) In making initial appointments, the chief executive
shall designate one member to serve a one-year term, one member to
serve a two-year term, and one member to serve a three-year term.
If a municipality has a civil service commission immediately before
this chapter takes effect in that municipality, that civil service
commission shall continue as the commission established by this
section and shall administer the civil service system as prescribed
by this chapter. As the terms of the members of the previously
existing commission expire, the chief executive shall appoint
members as prescribed by this section. If necessary to create
staggered terms as prescribed by this section, the chief executive
shall appoint the initial members, required to be appointed under
this chapter, to serve terms of less than three years.
(e) Initial members shall elect a chairman and a
vice-chairman within 10 days after the date all members have
qualified. Each January, the members shall elect a chairman and a
vice-chairman.
(f) The governing body of the municipality shall provide to
the commission adequate and suitable office space in which to
conduct business.
(g) The chief executive of a municipality commits an offense
if the chief executive knowingly or intentionally fails to appoint
the initial members of the commission within the 60-day period
4
prescribed by Subsection (a) . An offense under this subsection is a
misdemeanor punishable by a fine of not less than $100 or more than
$200. Each day after the 60-day period that the chief executive
knowingly or intentionally fails to make a required appointment
constitutes a separate offense.
(h) The chief executive of a municipality or a municipal
official commits an offense if the person knowingly or
intentionally refuses to implement this chapter or attempts to
obstruct the enforcement of this chapter. An offense under this
subsection is a misdemeanor punishable by a fine of not less than
$100 or more than $200.
Acts 1987, 70th Leg. , ch. 149, Sec. 1, ef .f. Sept. 1, 1987.
Sec. 143.007. REMOVAL OF COMMISSION MEMBER. (a) If at a
meeting held for that purpose the governing body of the
municipality finds that a commission member is guilty of misconduct
in office, the governing body may remove the member. The member may
request that the meeting be held as an open hearing in accordance
with Chapter 551, Government Code.
(b) If a commission member is indicted or charged by
information with a criminal offense involving moral turpitude, the
member shall be automatically suspended from office until the
disposition of the charge. Unless the member pleads guilty or is
found to be guilty, the member shall resume office at the time of
disposition of the charge.
(c) The governing body may appoint a substitute commission
member during a period of suspension. If a member pleads guilty to
or is found to be guilty of a criminal offense involving moral
turpitude, the governing body shall appoint a replacement
commission member to serve the remainder of the disqualified
member's term of office.
Acts 1987, 70th Leg. , ch. 149, Sec. 1, ef .f. Sept. 1, 1987. Amended
by Acts 1995, 74th Leg. , ch. 76, Sec. 5.95(82) , ef .f. Sept. 1, 1995.
Sec. 143.008. ADOPTION AND PUBLICATION OF RULES. (a) A
commission shall adopt rules necessary for the proper conduct of
commission business.
(b) The commission may not adopt a rule permitting the
appointment or employment of a person who is:
5
Abraham David Benavides, Assistant Professor in the Department of Public Administration at
the University ofNorth Texas joined the faculty in the Fall of 2002. He received his Doctors
Degree from Cleveland State University, his Masters Degree from Brigham Young University,
and his Bachelors Degree from George Washington University. Before entering academia, Dr.
Benavides worked as an accreditation coordinator for county government in the state of Ohio and
for the Department of Human Resource Management for the State of Utah.
He is currently conducting research in a number of areas and has made national presentations on
subjects ranging from local government management and human resources to diversity issues.
He currently has an article under consideration for publication in State and Local Government
Review entitled, "Hispanic City Managers in Texas: A Small Group of Professional
Administrators." He also recently completed a major research project entitled "Municipal Best
Practices for the Hispanic Community." Dr. Benavides serves as president of the North Texas
Chapter of the American Society for Public Administration, and as vice president for a local
nonprofit organization that serves at risk-preschool children in the city of Denton, Texas.
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Police
ACM: Jon Fortune
SUBJECT
Consider approval of an ordinance authorizing the City Manager to execute an Interlocal
Agreement with the DENCO Area 9-1-1 District relating to the Denton Public Safety
Answering Point(PSAP); and providing an effective date.
BACKGROUND
The City of Denton Public Safety Communications Section has acted as a DENCO 9-1-1
public safety answering point (PSAP) for approximately 15 years. This agreement
constitutes a renewal of the standard agreement with DENCO Area 9-1-1 District.
DENCO agrees to provide all hardware, software, equipment, procedures, training,
management, and maintenance for the 9-1-1 system. The City agrees to staff the PSAP
with trained Telecommunicators on a twenty-four hour a day basis and allow access to
the PSAP equipment at all times.
Additionally, DENCO will provide the Microwave Radio Network System ("Microwave
System") for the purpose of establishing enhanced communications in the geographical
area served by DENCO.
RECOMMENDATION
Staff recommends approval of the ordinance in order to ensure continued 9-1-1 service to
its citizens.
PRIOR ACTION/REVIEW
This ordinance has been reviewed by the Legal Department and approved as to form and
content.
Agenda Information Sheet
November 15, 2005
Page 2
FISCAL IMPACT
The adoption of this ordinance will not have any projected or related costs to the City of
Denton.
EXHIBITS
Ordinance
Interlocal Agreement
Respectfully Submitted,
Charles Wiley
Chief of Police
Prepared by:
we-,
Lt. Loyd Burns
Support Services Bureau
"+ i S:\Our Ducuments\ordinances1051Denton PSAP Ord.doc
ORDINANCE NO.
AN ORDINANCE APPROVING AND AUTHORIZING THE CITY MANAGER TO
EXECUTE AN INTERLOCAL AGREEMENT WITH THE DENCO AREA 911 DISTRICT
RELATING TO THE DENTON PUBLIC SAFETY ANSWERING POINT; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the Denco Area 911 District ("Denco") is a duly organized political
subdivision in the State of Texas engaged in providing the enhanced 911 equipment network for
emergency services for the benefit of citizens within its jurisdiction; and
WHEREAS, Denco and the City desire to establish the Denton Police Department as the
primary Public Safety Answering Point ("Denton PSAP"), which will receive 911 calls that
originate from areas within and from areas outside of Denton's corporate boundaries and the City
would handle all 911 calls in accordance with the procedures adopted by the City and Denco and
with the statutes of the State of Texas; and
WHEREAS, Denco will provide the Microwave Radio Network System ("Microwave
System") for the purpose of establishing enhanced communications in the geographical area
served by Denco; and
WHEREAS, the City Council deems it in the public interest to enter into an agreement
which allows the City and Denco to install Microwave System equipment at the Denton PSAP;
NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated
by reference into the body of this Ordinance as if fully set forth herein.
SECTION 2. The City Council hereby approves and authorizes the City Manager, or his
designee, to execute an Interlocal Agreement between the City of Denton and Denco relating to
the establishment of a Denton PSAP, in substantially the form of the Interlocal Agreement which
is attached to and made a part of this Ordinance for all purposes.
SECTION 3. The City Manager, or his designee, is authorized to make all expenditures
and take all actions necessary to implement the terms and conditions of the attached Interlocal
Agreement.
SECTION 4. This Ordinance shall become effective immediately upon its passage and
approval.
S:lOur Documentsl0rdinances1051Denton PSAP Ord.doc
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, CITY ATTORNEY
BY:
Page 2 of 2
THE STATE OF TEXAS )
}
COUNTY OF DENTON )
INTERLOCAL AGREEMENT TO SERVE AS A
DENCO AREA 9-1-1 DISTRICT
PUBLIC SAFETY ANSWERING POINT
This Interlocal Agreement (the "Agreement") is entered into by and between the City of
Denton ("the City") and the Denco Area 9-1-1 District ("Denco"), both entities being located in
Denton County, Texas, and hereinafter referred to collectively as the "Parties." The Parties
execute this Agreement as hereinafter provided, pursuant to the Texas Government Code,
Chapter 791, known as the Interlocal Cooperation Act, and the Health and Safety Code, Section
774.003:
WHEREAS, Denco is a duly organized political subdivision of the State of Texas
engaged in providing the enhanced 9-1-1 equipment network for emergency services for the
benefit of the citizens of Denton County; and
WHEREAS, the City is a home-rule municipality engaged in providing ambulance and
emergency service and related services for the benefit of the citizens within its jurisdiction; and
WHEREAS, Denco and the City desire to establish the Denton Police Department as the
primary Public Safety Answering Point ("Denton PSAP"), and as more particularly described in
Exhibit "A" attached to and made a part of this Agreement, within the Denco Enhanced 9-1-1
System; and
WHEREAS, in general, the Denton P SAP will receive 9-1-1 calls that originate from
areas within and from areas outside of its corporate boundaries. In any instance, without regard
to the point origination of the 9-1-1 call, the Denton PSAP agrees to handle all 9-1-1 calls in
accordance with procedures adopted by the City, Denco and the statutes of the State of Texas;
and
WHEREAS, Texas Government Code Chapter 791 authorizes local governments to enter
into contracts with other local governments to perform governmental functions and services in
accordance with the statute cited herein and the terms of this contract; and
WHEREAS, both Parties are authorized to perform the services contemplated herein as a
governmental function and each Party accepts the consideration expressed herein as reasonable
and adequate.
NOW, THEREFORE, Denco and the City for the mutual consideration hereinafter stated,
agree as follows:
1
1. Term. The Term shall commence as of the date the last Party executes this Agreement.
The Agreement shall be for a term of one (1) year and shall automatically renew for
successive one year terms unless otherwise terminated as specified herein.
2. Ownership. The City agrees that the 9-1-1 equipment installed or placed at the Denton
PSAP remains the property of Denco.
3. Damages to E ui ment. Denco shall be responsible for any damage to the equipment
that Denco or its authorized agents, who have been approved in writing by the City, have
installed or placed at the Denton PSAP, including normal wear and tear usage and/or loss,
unless such damage is caused by an act or omission of the City.
4. Qperation, Maintenance and Modification of System and Equipment. Denco agrees to
install, operate, maintain and manage the database, network and equipment management
for the 9-1-1 system hardware, software and microwave systems equipment installed at
the Denton PSAP. The City agrees that Denco staff or its authorized agents, who have
been approved in writing by the City, shall be the only personnel authorized to maintain,
modify, move or change the configuration of the 9-1-1 equipment installed at the Denton
PSAP without written permission from Denco. This shall include the installation and
maintenance of all hardware, software, and microwave systems equipment other than that
approved in writing by Denco.
5. Access. The City agrees to provide immediate, unrestricted access to Denco staff, or its
authorized agents, who have been approved in writing by the City, to the 9-1-1
equipment, the microwave systems equipment, and the 9-1-1 telephone demarcation
point. Denco agrees to provide timely prior notice to the City for need of access to said
equipment. It is understood that in the case of an emergency, such prior notice may not
be possible.
6. PSAP Operations. The City agrees to provide PSAP operations on a twenty-four hour a
day basis and to staff the Denton PSAP with trained Telecommunicator(s) whose training
meets the standards set by the City, Denco and the State of Texas.
7. Training. Denco agrees to provide training for 9-1-1 telecommunicators, not to include
payment for the telecommunicators' time, benefits, and travel. The City agrees to
participate in all equipment-training classes required by Denco. The salary of any
personnel attending training shall be the responsibility of the City.
S. Accommodations for Equipment. The City agrees to make reasonable modifications,
such as providing the necessary dedicated electrical circuits and outlets, physical space,
and any other reasonable requirements to allow for the installation of the 9-1-1 equipment
and microwave systems equipment.
9. Alternate Power Source. The City agrees to provide an alternate power source
(generator) for the 9-1-1 equipment and microwave systems equipment, to test this
alternate source under load on a monthly basis, and to maintain such equipment in good
working order.
10. Alternate Telephone System. Denco agrees to provide at the Denton PSAP an alternate
telephone system, with sufficient telephone numbers and instruments as agreed to by the
2
City and Denco, to receive 9-1-1 calls in the event of a 9-1-1 system failure or overload.
Denco will test the alternate telephone system on a regular basis.
11. System Problems. Denco agrees to provide PSAP management with procedures for
reporting problems with the 9-1-1 system, including means for escalation.
12. Errors. The City agrees to report all 9-1-1 database and routing errors as they occur
through the electronic means provided by Denco. Denco shall be responsible for the
resolution of all 9-1-1 system errors.
13. Denton PSAP Relocation. The City agrees that the 9-1-1 equipment, including, but not
limited to, an ECS 1000 switch or any other Denco-owned telecommunications
equipment and the microwave systems equipment that is installed or placed at the PSAP
location, shall not be removed, moved, or modified from its installed location or
disconnected or modified or restricted in its operation without one hundred and eighty
(180) days advance written prior notice to Denco for Denco to act on the change. The
City agrees that it will give Denco one hundred and eighty (180) days advance written
prior notice of the expiration of any lease that may be applicable to the PSAP location or
of any sale of the PSAP location or of any proposed change or restructure of the PSAP
location so that Denco will have one hundred and eighty (180) days to relocate or move
the 9-1-1 equipment and the microwave systems equipment. The City agrees to maintain
power supply and temperature control until Denco makes the change. If the equipment is
not moved or relocated within said time frame, the City may move or relocate the
equipment, or cause such work to be done, at Denco's expense. The costs, charges, and
expenses incurred in moving or relocating the equipment, or having such work done,
shall be a charge to Denco. Denco shall pay for such costs, charges, and expenses within
thirty (30) days after the City submits a bill to Denco. The City shall not be responsible
for any damage to the equipment which results from moving or relocating the equipment,
or causing such work to be done.
14. Manual ALI Query. The City agrees to comply with the attached guidelines, marked as
Exhibit "B" and incorporated in this agreement for all purposes, for use of manual
Automated Location Identification ("ALI") Query and agrees to execute the attached
letter, marked as Exhibit "C" attached hereto requesting the service from the 9-1-1
database provider.
15. Confidentiality. The City and Denco agree that certain information provided through the
9-1-1 system is confidential and agree not to disclose such information to the extent
allowed by state law. Any release of this information in compliance with an Attorney
General's Opinion or a court order will not be considered a breach of this Agreement.
16. Termination. In the event that either Party desires to terminate this Agreement, the
desiring Party shall give written notice thereof to the other Party one hundred and eighty
(180) days prior to the expiration of the then in effect one year term. Upon termination,
Denco shall promptly remove all equipment installed or placed at the Denton PSAP and
shall repair any damage cause by such removal. Denco will have one hundred and eighty
(180) days to remove the equipment. If the equipment is not removed within said time
frame, the City may remove the equipment, or cause such work to be done, at Denco's
expense. The costs, charges, and expenses incurred in removing the equipment, or
having such work done, shall be a charge to Denco. Denco shall pay for such costs,
3
charges, and expenses within thirty(30) days after the City submits a bill to Denco. The
City shall not be responsible for any damage to the equipment which results from
removing the equipment, or causing such work to be done.
17. Governmental Immunity and Res onsibilit . The Parties acceptance of certain
responsibilities relating to the rendering of public safety services under this Agreement as
a part of their responsibility for providing protection for the public health makes it
imperative that the performance of these vital services be recognized as a governmental
function and that the doctrine of governmental immunity shall be, and is hereby, invoked
to the extent possible under the law. Neither of the Parties waives nor shall be deemed
hereby to waive any immunity or defense that would otherwise be available to it against
claims arising from the exercise of governmental powers and functions. Each Party shall
be responsible for the acts and negligence of its own officers, employees, agents and
volunteers engaged in the performance of this Agreement. Each Party shall also be
responsible for any property damage or bodily injury caused by their equipment located
at the Denton PSAP and for any property damage or bodily injury caused by any act or
omission by their officers, employees, agents and volunteers. Each Party further agrees
to waive all rights of subrogation against the other Party for losses arising from work
performed by either Party at the Denton PSAP. Any contractor or third party hired or
utilized by a Party for work on the Microwave System shall comply with the insurance
requirements set forth in Exhibit I'D".
18. Notices. Except as may be otherwise specifically provided, all notices required or
permitted under this Agreement shall be in writing and shall be deemed delivered when
deposited in the United States mail, postage prepaid, registered or certified mail, return
receipt requested, addressed to the parties at the respective addresses set forth below or at
other addresses as may have been previously specified by written notice delivered in
accordance with this Agreement.
The City:
Michael A. Conduff
City Manager
215 E. McKinney
Denton TX 76201
Denco:
Mike Pedigo
Denco Area 9-1-1 District
P.O. Box 293058
Lewisville, Texas 75029-3058
19. Venue and Governing Law. The Parties agree that if legal action is brought under this
Agreement, exclusive venue shall Iie in the Courts of Denton County, Texas, and its
terms or provisions, as well as the rights and duties of the Parties hereunder, shall be
governed by the laws of the State of Texas.
20. Severability. In case any one or more of the terms, sentences, paragraphs or provisions
contained in this Agreement shall for any reason he held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability shall not
4
affect any other terms, sentences, paragraphs or provisions thereof, and this Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had never been
contained here.
21. Amendments. This Agreement may be amended or modified only by the mutual
agreement of the Parties. Such amendment or modification must be in writing and
executed by an authorized representative of each Party.
22. CountgMarts. This Agreement may be executed in multiple counterparts and shall be
binding on and endure to the benefit of each Party and each counterpart shall be deemed
an original for all purposes when duly authorized by the governing body of each Party
and signed by such Party's duly authorized representative.
23. Entire A eement and Prior AgKeements Su perseded. This Agreement represents the
entire and integrated agreement between Denco and the City and supersedes any prior
understandings, negotiations, representations, or written or oral agreements between the
parties respecting this subject matter.
24. Binding Nature. This Agreement shall be binding on and inure to the benefit of the
Parties and their respective heirs, executors, administrators, Iegal representatives,
successors, and assigns as permitted by this Agreement.
25. Other Instruments. The parties agree that they will execute any other instruments and
documents that may become necessary or convenient to effectuate and carry out the
Project contemplated by this Agreement.
26. No Oral Commitments. This Agreement contains all commitments, agreements,
warranties and representations of the Parties. Any oral or written commitments,
agreements, warranties or representations not contained herein shall have no force or
effect to alter any term or condition of this Agreement.
27. Gender. Whenever the context shall require, all words in this Agreement in any gender
shall be deemed to include the masculine, feminine, or neuter gender, all singular words
shall include the plural, and all plural words shall include the singular.
28. Si atones. The undersigned officer and/or agents of the Parties hereto are the properly
authorized officials and have the necessary authority to execute this Agreement on behalf
of the Parties hereto and each Party hereby certifies to the other that any necessary
resolutions extended said authority have been duly passed and are now in full force and
effect.
29. PayMpnt for Performance of Governmental Functions. Each Party paying for the
performance of governmental functions or services must make those payments from
current revenues available to the paying Party.
5
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to be
effective from the last date signed and marked on this Agreement by a participating Party.
CITY OF DENTON
BY:
MICHAEL A. CONDUFF,
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY:
APPROVED BY DENCO AREA 4-I-1 DISTRICT BOARD OF MANAGERS, DENTON
COUNTY, TEXAS:
BY:
DATE:
Mike Pedigo, E ECUTIVE DIRECTOR
ATTEST:
Carla Flowers, BUSINESS MANAGER
APPROVED AS TO FORM:
/�L"eddiie Taylor, TORN
6
EXHIBIT "A"
LOCATION OF DENTON PSAP
The Denton PSAP is located 601 E. Hickory St., Denton. The equipment installed at the PSAP
includes, but is not limited to:
• 9-1-1 integrated (Telephone, IRR, and TTY) computers workstations and monitors.
• Network rack(s) and/or enclosures in equipment room.
• Server(s), network switch, routers, and a printer. Printer supplies are responsibility of
Denton PSAP.
• 9-1-1 controller(s) ["ECS-1000"J hosting Denton, Denton County, Lake Dallas, Roanoke,
TWU, and UNT PSAPs.
• Microwave radios, digital cross-connects, channel banks, and associated peripherals.
7
EXHIBIT "B"
MANUAL ALI QUERY
DESCRIPTION:
Manual ALI Query is a service that allows a telephone number to be manually input at an E9-1-1
answering position and cause the retrieval and display of the Automatic location Identification
record for the number for the E9-1-1 database.
GUIDELINES:
Manual ALI Query May Be Provisioned Under The Conditions
• The 911 customers must apply for the feature in writing. The application shall include
acknowledgment by the 911 customer and the PSAP(s) of these guidelines and tariff
provisions related to ALI access.
• The PSAP must be equipped with CPE that is compatible with the FT/ALI host computer
using the existing protocol for identifying manual queries.
• Any information obtained from the E9-1-1 ALI database in connection with an emergency
call shall be used solely for the purpose of handling and responding to emergency calls in a
manner consistent with the nature of the emergency.
• Any permanent record associating a subscriber's telephone number with his name or address
shall be secured by the PSAP and disposed of in a manner that will retain that security.
• Use of this feature and the information obtained is restricted to circumstances where quick
response to an in-progress emergency would be aided by having the ALI data for a telephone
number associated with the emergency situation.
8
EXHIBIT "C"
APPLICATION LETTER
FOR NON-SBC-PROVIDED CPE AT PSAP
Dear SBC:
This letter is to request SBC to enable the "Manual ALI Query" feature at The City of Denton,
Texas Public Safety Answering Point (PSAP).
The 911 premise equipment provided by Denco Area 9-1-1 District at this PSAP has been
configured to allow manual queries, and is compatible with the manual ALI query protocol of the
SBC FT/ALI system. It is further acknowledged that a test of the compatibility with the FT/ALI
protocol shall be performed with the participation of SBC personnel in conjunction with the
activation of this feature, and that SBC shall have ongoing access to the PSAP for testing when
required to resolve maintenance issues.
This PSAP needs to be able to query ALI records within the community of Denton, Texas,
defined in your 911 database as ESN(s) 405,428, 448, 453, 456,
Denco Area 9-1-1 District and the City of Denton, Texas operator/user of the PSAP, fully
understand and agree to comply with the terms and conditions contained in SBC's E911 service
tariff (Sec. 34, Gen. Exch. Tariff) and the conditions specified in SBC's letter to CSEC dated
November 28, 1995 under which this feature may be provisioned.
Acknowledgment signatures by authorized representatives of contracting 911 agency and PSAP:
Mike Pedigo Name
Executive Director
Title
Denco Area 9-1-1 District City of Denton
Date Date
9
Exhibit D
CITY OF DENTON
INSURANCE REQUIREMENTS FOR CONTRACTORS
Bidder's attention is directed to the insurance requirements below. It is highly
recommended that bidders confer with their respective insurance carriers or brokers to
determine in advance of Bid submission the availability of insurance certificates and
endorsements as prescribed and provided herein. If an apparent low bidder fails to
comply strictly with the insurance requirements, that bidder may be disqualified from
award of the contract. Upon bid award, all insurance requirements shall become
contractual obligations, which the successful bidder shall have a duty to maintain
throughout the course of this contract.
STANDARD PROVISIONS:
Without limiting any of the other obligations or liabilities of the Contractor, the
Contractor shall provide and maintain until the contracted work has been completed and
accepted by the City of Denton, Owner, the minimum insurance coverage as indicated
hereinafter.
As soon as practicable after notification of bid award, Contractor shall file with the
Purchasing Department satisfactory certificates of insurance, containing the bid number
and title of the project. Contractor may, upon written request to the
Purchasing Department, ask for clarification of any insurance requirements at any time;
however, Contractors are strongly advised to make such requests prior to bid opening,
since the insurance requirements may not be modified or waived after bid opening unless
a written exception has been submitted with the bid Contractor shall not commence
any work or deliver any material until he or she receives notification that the contract
has been accepted, approved, and signed by the City of Denton.
All insurance policies proposed or obtained in satisfaction of these requirements shall
comply with the following general specifications, and shall be maintained in compliance
with these general specifications throughout the duration of the Contract, or longer, if so
noted:
• Each policy shall be issued by a company authorized to do business in the
State of Texas with an A.M. Best Company rating of at least A.
• Any deductibles or self-insured retentions shall be declared in the bid
proposal. If requested by the City, the insurer shall reduce or eliminate such
deductibles or self-insured retentions with respect to the City, its officials,
agents, employees and volunteers; or, the contractor shall procure a bond
guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
SAOur DocumentsWiseellaneous\insurance requirments$lm&5K.doc
• Liability policies shall be endorsed to provide the following:
•• Name as additional insured the City of Denton, its Officials, Agents,
Employees and volunteers.
•• That such insurance is primary to any other insurance available to the
additional insured with respect to claims covered under the policy and
that this insurance applies separately to each insured against whom
claim is made or suit is brought. The inclusion of more than one
insured shall not operate to increase the insurer's limit of liability.
• All policies shall be endorsed to read:
"SAID POLICY SHALL NOT BE CANCELLED, NONRENEWED OR
MATERIALLY CHANGE WITHOUT 30 DAYS ADVANCED WRITTEN
NOTICE BEING GIVEN TO THE OWNER (CITY) EXCEPT WHEN
THE POLICY IS BEING CANCELLED FOR NONPAYMENT OF
PREMIUM IN WHICH CASE 10 DAYS ADVANCE WRITTEN NOTICE
IS REQUIRED':
• Should any of the required insurance be provided under a claims-made form,
Contractor shall maintain such coverage continuously throughout the term of
this contract and, without lapse, for a period of three years beyond the
contract expiration, such that occurrences arising during the contract term
which give rise to claims made after expiration of the contract shall be
covered.
• Should any of the required 'insurance be provided under a form of coverage
that includes a general annual aggregate limit providing for claims
investigation or legal defense costs to be included in the general annual
aggregate limit, the Contractor shall either double the occurrence limits or
obtain Owners and Contractors Protective Liability Insurance.
• Should any required insurance lapse during the contract term, requests for
payments originating after such lapse shall not be processed until the City
receives satisfactory evidence of reinstated coverage as required by this
contract, effective as of the lapse date. If insurance is not reinstated, City
may, at its sole option, terminate this agreement effective on the date of the
lapse.
SA0ur Documents lMiscellaneousVnsurance requirments Sim&.5K.doc
SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS:
All insurance policies proposed or obtained in satisfaction of this Contract shall
additionally comply with the following marked specifications, and shall be maintained in
compliance with these additional specifications throughout the duration of the Contract,
or longer, if so noted:
[X] A. General Liability Insurance:
General Liability insurance with combined single limits of not less than
$1,000,000.00 hall be provided and maintained by the Contractor. The
policy shall be written on an occurrence basis either in a single policy or in a
combination of underlying and umbrella or excess policies.
If the Commercial General Liability form (ISO Form CG 0001 current
edition)is used:
• Coverage A shall include premises, operations, products, and
completed operations, independent contractors, contractual liability
covering this contract and broad form property damage coverage.
• Coverage B shall include personal injury.
• Coverage C, medical payments, is not required.
If the Comprehensive General Liability form (ISO Form GL 0002 Current
Edition and ISO Form GL 0404) is used, it shall include at least:
• Bodily injury and Property Damage Liability for premises,
operations, products and completed operations, independent
contractors and property damage resulting from explosion, collapse
or underground (XCq exposures.
• Broad form contractual liability (preferably by endorsement)
covering this contract, personal injury liability and broad form
property damage liability.
[X] Automobile Liability Insurance:
Contractor shall provide Commercial Automobile Liability insurance with
Combined Single Limits (CSL) of not less than $500,000.00 either in a single
policy or in a combination of basic and umbrella or excess policies. The policy
will include bodily injury and property damage liability arising out of the
operation, maintenance and use of all automobiles and mobile equipment used in
conjunction with this contract.
s:lOur Documents\Miscellaneouslinsurance requirments$lm&5K.doc
Satisfaction of the above requirement shall be in the form of a policy endorsement
for=
• any auto, or
• all owned,hired and non-owned autos.
[X] Workers Compensation Insurance
Contractor shall purchase and maintain Worker's Compensation insurance which,
in addition to meeting the minimum statutory requirements for issuance of such
insurance, has Employer's Liability limits of at least $100,000 for each accident,
$100,000 per each employee, and a $500,000 policy limit for occupational
disease. The City need not be named as an "Additional Insured" but the insurer
shall agree to waive all rights of subrogation against the City, its officials, agents,
employees and volunteers for any work performed for the City by the Named
Insured. For building or construction projects, the Contractor shall comply with
the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor
Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission
(TWCC).
[ ] Owner's and Contractor's Protective Liability Insurance
The Contractor shall obtain, pay for and maintain at all times during the
prosecution of the work under this contract, an Owner's and Contractor's
Protective Liability insurance policy naming the City as insured for property
damage and bodily injury which may arise in the prosecution of the work or
Contractor's operations under this contract. Coverage shall be on an
"occurrence" basis, and the policy shall be issued by the same insurance
company that carries the Contractor's liability insurance. Policy limits will be at
least combined bodily injury and property damage per occurrence
with a aggregate.
[ ] Fire Damage Legal Liability Insurance
Coverage is required if Broad form General Liability is not provided or is
unavailable to the contractor or if a contractor leases or rents a portion of a City
building. Limits of not less than each occurrence are required.
SAOur Documents\Miscellaneouslinsurancc requirments$lm&5K.doc
[ ] Professional Liability Insurance
Professional liability insurance with limits not less than per claim with
respect to negligent acts, errors or omissions in connection with professional
services is required under this Agreement.
[] Builders' Risk Insurance
Builders' Risk Insurance, on an All-Risk form for 100% of the completed value
shall be provided. Such policy shall include as "Named Insured" the City of
Denton and all subcontractors as their interests may appear.
[ ] Commercial Crime
Provides coverage for the theft or disappearance of cash or checks, robbery
inside/outside the premises, burglary of the premises, and employee fidelity. The
employee fidelity portion of this coverage should be written on a "blanket" basis
to cover all employees, including new hires. This type insurance should be
required if the contractor has access to City funds. Limits of not less than
each occurrence are required.
[ ] Additional Insurance
Other insurance may be required on an individual basis for extra hazardous
contracts and specific service agreements. If such additional insurance is required
for a specific contract, that requirement will be described in the "Specific
Conditions" of the contract specifications.
S:%Our Documents\Miscellancouslinsurance requirments$lm&5K.doc
ATTACHMENT 1
[X) Worker's Compensation Coverage for Building or Construction Projects for
Governmental Entities
A. Definitions:
Certificate of coverage ("certificate")-A copy of a certificate of insurance, a
certificate of authority to self-insure issued by the commission, or a coverage
agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing
statutory workers' compensation insurance coverage for the person's or
entity's employees providing services on a project, for the duration of the
proj ect.
Duration of the project - includes the time from the beginning of the work on
the project until the contractor's/person's work on the project has been
completed and accepted by the governmental entity.
Persons providing services on the project ("subcontractor" in §406.096) -
includes all persons or entities performing all or part of the services the
contractor has undertaken to perform on the project, regardless of whether
that person contracted directly with the contractor and regardless of whether
that person has employees. This includes, without limitation, independent
contractors, subcontractors, leasing companies, motor carriers, owner-
operators, employees of any such entity, or employees of any entity which
furnishes persons to provide services on the project. "Services" include,
without limitation, providing, hauling, or delivering equipment or materials,
or providing labor, transportation, or other service related to a project.
"Services" does not include activities unrelated to the project, such as
food/beverage vendors, office supply deliveries, and delivery of portable
toilets.
B. The contractor shall provide coverage, based on proper reporting of
classification codes and payroll amounts and filing of any overage
agreements, which meets the statutory requirements of Texas Labor Code,
Section 401.011(44) for all employees of the Contractor providing services
on the project, for the duration of the project.
C. The Contractor must provide a certificate of coverage to the governmental
entity prior to being awarded the contract.
SAOur DocumentslMiscellaneous\insurance requirments$]m&5K.doe
D. If the coverage period shown on the contractor's current certificate of
coverage ends during the duration of the project, the contractor must, prior to
the end of the coverage period, file a new certificate of coverage with the
governmental entity showing that coverage has been extended.
E. The contractor shall obtain from each person providing services on a project,
and provide to the governmental entity:
(1) a certificate of coverage, prior to that person beginning work on the
project, so the governmental entity will have on file certificates of
coverage showing coverage for all persons providing services on the
project; and
(2) no later than seven days after receipt by the contractor, a new certificate
of coverage showing extension of coverage, if the coverage period
shown on the current certificate of coverage ends during the duration of
the project.
F. The contractor shall retain all required certificates of coverage for the
duration of the project and for one year thereafter.
G. The contractor shall notify the governmental entity in writing by certified
mail or personal delivery, within 10 days after the contractor knew or should
have known, of any change that materially affects the provision of coverage
of any person providing services on the project.
H. The contractor shall post on each project site a notice, in the text, form and
manner prescribed by the Texas Workers' Compensation Commission,
informing all persons providing services on the project that they are required
to be covered, and stating how a person may verify coverage and report lack
of coverage.
I. The contractor shall contractually require each person with whom it contracts
to provide services on a project, to:
(1) provide coverage, based on proper reporting of classification codes and
payroll amounts and filing of any coverage agreements, which meets
the statutory requirements of Texas Labor Code, Section 401.011(44)
for all of its employees providing services on the project, for the
duration of the project;
(2) provide to the contractor, prior to that person beginning work on the
project, a certificate of coverage showing that coverage is being
provided for all employees of the person providing services on the
project, for the duration of the project;
SAOur DocumentsWiscellaneouslinsurance requirments$lm&SK.doc
(3) provide the contractor, prior to the end of the coverage period, a new
certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the
duration of the project;
(4) obtain from each other person with whom it contracts, and provide to
the contractor:
(a) a certificate of coverage,prior to the other person beginning work
on the project; and
(b) a new certificate of coverage showing extension of coverage,
prior to the end of the coverage period, if the coverage period
shown on the current certificate of coverage ends during the
duration of the project;
(5) retain all required certificates of coverage on file for the duration of the
project and for one year thereafter;
(6) notify the governmental entity in writing by certified mail or personal
delivery, within 10 days after the person knew or should have known,
of any change that materially affects the provision of coverage of any
person providing services on the project; and
(7) contractually require each person with whom it contracts, to perform as
required by paragraphs (1) - (7), with the certificates of coverage to be
provided to the person for whom they are providing services.
I By signing this contract or providing or causing to be provided a certificate of
coverage, the contractor is representing to the governmental entity that all
employees of the contractor who will provide services on the project will be
covered by workers' compensation coverage for the duration of the project,
that the coverage will be based on proper reporting of classification codes
and payroll amounts, and that all coverage agreements will be filed with the
appropriate insurance carrier or, in the case of a self-insured, with the
commission's Division of Self-Insurance Regulation. Providing false or
misleading information may subject the contractor to administrative
penalties, criminal penalties, civil penalties, or other civil actions.
K. The contractor's failure to corriply with any of these provisions is a breach of
contract by the contractor which entitles the governmental entity to declare
the contract void if the contractor does not remedy the breach within ten days
after receipt of notice of breach from the governmental entity.
SAOur DocumentsWisce llaneouslinsurance requirments$1m&5K.doc
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Utility Administration
ACM: Howard Martin, 349-8232
SUBJECT
Consider approval of an ordinance of the City Council of the City of Denton, Texas,
authorizing the City Manager to pay the City's annual consolidated water quality fees for
FY 2006 to the Texas Commission on Environmental Quality; authorizing the
expenditure of funds therefor; providing an effective date. (The Public Utilities Board
will consider this item at their November 14th meeting.)
BACKGROUND
The Texas Commission on Environmental Quality charges the Consolidated Water
Quality Fee (CWQ)to all wastewater treatment plants in Texas. This fee is based on the
permitted plant capacity and the wasteload allocation allowed to be discharged in the
receiving stream. Payment of the CWQ fee is mandatory to continue to operate the Pecan
Creek Water Reclamation Plant. The CWQ fee (see invoice Exhibit 1) assessment for the
Pecan Creek Water Reclamation Plant(PCWRP) is $63,170.
OPTIONS
Payment of TCEQ CWQ fee is mandatory to operate the Pecan Creek Water Reclamation
Plant.
RECOMMENDATION
Staff recommends approval of the CWQ fee to TCEQ.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
This item will be presented to the Public Utilities Board at their November 14th 2005
regular meeting.
FISCAL INFORMATION
The CWQ Fee will be paid from the FY2006 revenue account.
EXHIBITS
1. TCEQ CWQ Fee Invoice
2. PUB Minutes
;Res ectfully submitted:
Jim Coulter
Director of Water Utilities
Prepared by:
P�'T"
P.S. Arora, RE
Assistant Director of Wastewater Utilities
1
ORDINANCE NO. 2005-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS,
AUTHORIZING THE CITY MANAGER TO PAY THE CITY'S ANNUAL CONSOLIDATED
WATER QUALITY FEES FOR FY 2006 TO THE TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY; AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFOR; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Public Utilities Board of the City of Denton, Texas has examined,
considered, and recommended approval for payment of the Consolidated Water Quality Fees
("CWQ") that have been charged and assessed to the City by the Texas Commission on
Environmental Quality ("TCEQ") for the Fiscal Year 2006; that said CWQ fees are now due and
owing, and the TCEQ invoice requesting payment of said CWQ fees has been issued to and
received by the City; and
WHEREAS, all wastewater treatment plants in Texas are charged such fees by TCEQ as
provided by applicable law; said CWQ fees are based upon the permitted plant capacity and the
wasteload allocation allowed to be discharged in the receiving stream; and
WHEREAS, the City of Denton, Texas operates two wastewater treatment plants; the
Pecan Creek Water Reclamation Plant ("PCWRP") is currently permitted for 15 million gallons
per day ("MGD"); per day; the CWQ fee assessment for the PCWRP is $63,170; and
WHEREAS, the City Council finds that it is in the public interest that such fees should be
paid, and accordingly, approves the payment of $63,170 for CWQ fees for FY 2006 to the
TCEQ; NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager is hereby authorized to pay the sum of$63,170 directly
to the Texas Commission on Environmental Quality ("TCEQ"), for the FY 2006 Consolidated
Water Quality Fees for the wastewater treatment facility maintained by the City.
SECTION 2. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of , 2005.
EULINE BROCK, MAYOR
1
EXHIBIT 1
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
By:
S:AOur Documents\Ordinances\05\TCEQ-FY 2006 CWQ Fee-Wastewater Treatment.doc
2
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AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Fiscal Operations
ACM: Jon Fortune
SUBJECT
Consider approval of a resolution reviewing and adopting the Investment Policy for funds
for the City of Denton; designating an investment officer; providing a savings and a
repealing clause; and providing an effective date.
BACKGROUND
In accordance with the Public Funds Investment Act of Texas, the City of Denton
Investment Policy must be approved by the City Council at least annually. The Policy
establishes investment parameters and guidelines for the investment program. It also
designates the authorized investment officer responsible for the daily investment activity
by the City.
The Investment Committee met on Monday, November 7, 2005, and unanimously
approved a recommendation for minor "housekeeping" updates, specifically, updating
staff titles.
PRIOR ACTION/REVIEW
Investment Policy 408.04 was presented to the Investment Committee on Monday,
November 7, 2005. All Committee members voted for approval and recommended the
Policy be submitted to the City Council for consideration (5-0).
Respectfully submitted:
Diana G. Ortiz
Director of Fiscal Operations
S:IOur Documents\Resolutions1051investment Policy ReviewIdoc
RESOLUTION NO.
A RESOLUTION REVIEWING AND ADOPTING THE INVESTMENT POLICY FOR
FUNDS FOR THE CITY OF DENTON; DESIGNATING AN INVESTMENT OFFICER;
PROVIDING A SAVINGS AND A REPEALING CLAUSE; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City Council passed Resolution No. 96-061 on October 15, 1996, which
adopted an Investment Policy for Funds for the City, in compliance with the Public Funds
Investment Act, 74th Leg., ch. 402, 1995 Tex. Sess. Law Serv. 2958 (Vernon) (TEX. GOVT
CODE Ann. Ch. 2256); and
WHEREAS,by Resolution No. 97-026, passed by the City Council on June 10, 1997, the
City's Investment Policy was amended; and
WHEREAS, by Resolution No. 97-077, passed by the City Council on December 16,
1997,the City's Investment Policy was amended; and
WHEREAS, by Resolution No. 98-067, passed by the City Council on December 15,
1998,the City's Investment Policy was reviewed and adopted; and
WHEREAS, by Resolution No. 99-047, passed by the City Council on September 21,
1999, the City's Investment Policy was amended; and
WHEREAS, by Resolution No. 2000-065, passed by the City Council on December 19,
2000,the City's Investment Policy was amended; and
WHEREAS, by Resolution No. 2001-072, passed by the City Council on December 18,
2001, the City's Investment Policy was amended; and
WHEREAS, by Resolution No. 2002-055, passed by the City Council on December 10,
2002, the City's Investment Policy was amended; and
WHEREAS, by Resolution No. 2004-008, passed by the City Council on February 3,
2004, the City's Investment Policy was amended; and
WHEREAS, by Resolution No. 2005-008, passed by the City Council on February 22,
2005, the City's Investment Policy was amended; and
WHEREAS, the City Council desires to review the Investment Policy for compliance to
the Public Funds Investment Act, TEX. GOV'T CODE ch. 2256, by the 79th Legislature; NOW,
THEREFORE,
S:IOur Documents\Resolutions1451lnvestment Policy ReviewIdoc
THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES:
SECTION 1. The City Council has reviewed the attached City of Denton Investment
Policy, which contains the City's investment policies and investment strategies for each of the
funds under its control and hereby adopts the attached Investment Policy, which is made a part of
this Resolution for all purposes.
SECTION 2. The Assistant City Manager, Jon Fortune, and the Chief Finance Officer
are hereby designated as the City's Investment Officers to perform the functions required of
them. The Investment Officers are hereby authorized to perform the functions required of them
under the Investment Policy and in accordance with TEX. GOV'T CODE ch. 2256 (Code) and
shall complete the investment training required in accordance with the Code.
SECTION 3. All resolutions or parts of resolutions in force when the provisions of this
resolution became effective which are inconsistent or in conflict with the terms or provisions
contained in this resolution are hereby repealed to the extent of any such conflict only. The non-
conflicting sections, sentences, paragraphs, and phrases shall remain in full force and effect.
SECTION 4. Save and except as amended hereby, all the provisions, sections,
subsections, paragraphs, sentences, clauses, and phrases of Resolution No. 96-061, Resolution
No. 97-026, Resolution No. 97-077, Resolution No. 98-067, Resolution No. 99-047, Resolution
No. 2000-065, Resolution No. 2001-072, Resolution No. 2002-055, Resolution No. 2004-008,
and Resolution No. 2005-008 shall remain in full force and effect.
SECTION 5. 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, CITY AT ORNEY
BY:
Page 2 of 2
CITY OF DENTON Page I of 13
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
SECTION: FINANCE POLICIES REFERENCE NUMBER:
403.06
INITIAL EFFECTIVE DATE:
SUBJECT: INVESTMENTS 021171 87
LAST REVISION DATE:
TITLE: INVESTMENT POLICY 06197 9199 12101 1/04
11/97 12100 12/02 2105
I. PURPOSE
This policy shall provide the guidelines by which the City of Denton "City" will maintain the
minimum amount of cash in its bank accounts to meet daily needs, and to provide protection for its
principal and liquidity while receiving the highest yield possible from investing all temporary
excess cash. This policy serves to satisfy the statutory requirements of defining and adopting a
formal investment policy. The policy and strategy shall be reviewed annually by the Investment
Committee and City Council who will formally approve any modifications. This investment
policy as approved, is in compliance with the provisions of the Public Funds Investment Act of
Tex. Gov't. Code Ann, Chapter 2256,hereinafter referred to as the "Act", as amended and effective
September 1, 1997.
H. SCOPE
A. This Investment Policy applies to the investment activities of the City of Denton,Texas. The
specific funds cited hereafter in Section IIB, shall be excluded from this Investment Policy.
[All financial assets of all funds, including the General Fund and any other accounts of the
City not specifically excluded in these policy guidelines are included. These funds are
accounted for in the City's Comprehensive Annual Financial Report (CAFR).] These
funds, as well as funds that may be created from time-to-time, shall be administered in
accordance with the provisions of these policies. All funds will be pooled for investment
purposes. The strategy developed for this pooled fund group will address the varying needs,
goals, and objectives of each fund.
B. This policy shall not govern funds, which are managed under separate investment programs
in accordance with Section 2256.004 of the Act. Such funds currently include; Employees'
Retirement Fund of the City of Denton; the Firemen's and Policemen's Pension Funds of the
City of Denton; other funds established by the City for deferred employee compensation;
revenue bond reserve funds; and certain private donations. The City shall and will maintain
responsibility for these funds to the extent required by: Federal and State Law; the City
Charter; and donor stipulations.
III. INVESTMENT OBJECTIVE & STRATEGY
It is the policy of the "City" that, giving due regard to the safety and risk of investment, all
available funds shall be invested in conformance with State and Federal Regulations, applicable
Bond Resolution requirements,adopted Investment Policy and adopted Investment Strategy.
In accordance with the Public Funds Investment Act, the following prioritized objectives (in order
of importance in accordance with Section 2256.005(d) of the Act), apply for each of the City's
investment strategies:
POLICY/ADMINISTR.ATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE Page 2 of 13
TITLE: INVESTMENT POLICY REFERENCE NUMBER:
408.04
A. Suitability---Understanding the suitability of the investment to the financial requirements of
the City. Any investment eligible in the Investment Policy is suitable for all City funds.
B. Safety — Preservation and safety of principal. All investments will be of high quality
securities with no perceived default risk. Market price fluctuations will however occur, by
managing the weighted average days to maturity for each fund type as specified.
C. Liquidity — To enable the City to meet operating requirements that might be reasonably
anticipated,the City's investment portfolio will remain sufficiently liquid. Liquidity shall be
achieved by matching investment maturities with forecasted cash flow requirements and by
investing in securities with active secondary markets. Short-term investment pools and
money market mutual funds provide daily liquidity and may be utilized as a competitive
yield alternative to fixed maturity investments.
D. Marketability—Securities with active and efficient secondary markets are necessary in the
event of an unanticipated cash requirement. Historical market "spreads" between the bid
and offer prices of a particular security type of less than a quarter of a percentage point shall
define an efficient secondary market.
E. Diversification—Investment maturities shall be staggered throughout the budget cycle to
provide cash flow based on the anticipated needs of the City. Diversifying the appropriate
maturity structure will reduce market cycle risk.
F. Yield—Attaining a competitive market yield for comparable security-types and portfolio
restrictions are the desired objective. The yield of an equally weighted, rolling six-month
treasury bill portfolio shall be the minimum yield objective or "benchmark". A secondary
objective will be to obtain a yield equal to or in excess of a local government investment
pool,money market mutual fund or average Federal Reserve discount rate.
The first measure of success in this area will be the attainment of enough income to offset
inflationary increases. Even though steps will be taken to obtain this goal, the City's staff
shall constantly be cognizant of the standard of care and the investment objectives pursuant
to the provisions of the amended Act, Section 2256.006(a).
The Chief Finance Officer shall avoid any transactions that might impair public confidence
in the City's ability to govern effectively. The governing body recognizes that in
diversifying the portfolio, occasional measured losses due to market volatility are inevitable,
and must be considered within the context of the overall portfolio's investment return,
provided that adequate diversification has been implemented. The prudence of the
investment decision shall be measured in accordance with the tests set forth in Section
2256.006(b)of the Act.
IV. INVESTMENT STRATEGY FOR SPECIFIC FUND GROUPS
Each major fund type has varying cash flow requirements and liquidity needs. Therefore specific
strategies shall be implemented considering the fund's unique requirements and the following shall
be considered separate investment strategies for each of the funds mentioned below. The City's
funds shall be analyzed and invested according to the following major fund types:
POLICYIADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE Page 3 of 13
TTTLE: INVESTMENT POLICY REFERENCE NUMBER:
408.04
A. Operating Funds — Investment strategies for operating funds and commingled pools
containing operating funds have as their primary objective to assure that anticipated cash
flows are matched with adequate investment liquidity. The secondary objective is to
structure a portfolio, which will minimize volatility during economic cycles. This may be
accomplished by purchasing high quality, short-term securities, which will compliment each
other in a laddered maturity structure. A dollar weighted average maturity of 365 days or
less will be maintained and calculated by using the stated final maturity date of each
security.
B. Debt Service Funds— Investment strategies for debt service funds shall have as the primary
objective the assurance of investment liquidity adequate to cover the debt service obligation
on the required payment date. Securities purchased shall not have a stated final maturity
date, which exceeds the debt service payment date. A dollar weighted average maturity of
550 days or less will be maintained and calculated by using the stated final maturity date of
each security.
C. Debt Service Reserve Funds —Investment strategies for debt service reserve emergency and
contingency funds shall have as the primary objective the ability to generate a dependable
revenue stream to the appropriate fund from securities with a low degree of volatility.
Securities should be of high quality and, except as may be required by the bond ordinance
specific to an individual issue, of short to intermediate-term maturities with stated final
maturities not exceeding five (5) years. Volatility shall be further controlled through the
purchase of securities carrying the highest coupon available, within the desired maturity and
quality range, without paying a premium, if at all possible. Such securities will tend to hold
their value during economic cycles. A dollar weighted average maturity of 650 days or less
will be maintained.
C. Construction and Special Purpose Funds—Investment strategies for construction projects or
special purpose fund portfolios will have as their primary objective to assure that anticipated
cash flows are matched with adequate investment liquidity. These portfolios should include
at least 10% in highly liquid securities to allow for flexibility and unanticipated project
outlays. The stated final maturity dates of securities held should not exceed the estimated
project completion date. A dollar weighted average maturity of 365 days or less will be
maintained and calculated by using the stated final maturity of each security.
E. Market prices for all public fund investments will be obtained and monitored through the use
of Interactive Data Inc.,an on-line data service or a similar qualified successor agency.
V. INVESTMENT COMMITTEE
Members — There is hereby created an Investment Committee consisting of the City Manager,
Assistant City Manager, Chief Finance Officer,Mayor, and one member of the City Council.
Scope—The Investment Committee shall meet at least quarterly to determine general strategies and
to monitor results. Included in its deliberations will be such topics as: economic outlook, portfolio
diversification, maturity structure,potential risk to the City's funds, authorized brokers and dealers,
and the target rate of return on the investment portfolio.
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POLICY/ADMINISTRATIVE PROCEDUREIADMINISTRATIVE DIRECTIVE
TITLE: INVESTMENT POLICY REFERENCE NUMBER:
408.04
Procedures—The Investment Committee shall provide minutes of its meetings. Any two members
of the Investment Committee may request a special meeting, and four members shall constitute a
quorum. The Investment Committee shall establish its own rules of procedures.
VI. RESPONSIBILITY AND STANDARD OF CARE
A. Delegation & Training — The management responsibility for the investment program is
hereby delegated to the Assistant City Manager, who shall establish written procedures for
the operation of the investment program, consistent with this investment policy. Such
procedures shall include explicit delegation of authority to the individual(s) responsible for
investment transactions. The primary individual who shall be involved in investment
activities will be the Chief Finance Officer. The Cash & Debt Administrator will have a
support role. The Assistant City Manager and Chief Finance Officer are designated as
investment officers, pursuant to section 2256.005 subsection f of the Act. Accordingly, the
investment officers, who shall be the chief financial officer and the investment officer of the
City for the purposes of Section 2256.008 of the Act, shall attend at least one training
session relating to their responsibility under the Act within 12 months after assuming duties.
These sessions and additional investment training sessions must be completed no less often
than once every two fiscal years commencing September 1, 1997 and these financial officers
shall receive not less than 10 hours of instruction struct on relating to investment responsibilities. The
training must include education in investment controls, security risks, strategy risks, market
risks, and compliance with the Public Funds Investment Act. The investment training
session shall be provided by an independent source approved by the investment committee.
For purposes of this policy, an"independent source"from which investment training shall be
obtained shall include a professional organization, an institute of higher Iearning or any other
sponsor other than a Business Organization with whom the City of Denton may engage in an
investment transaction. Thus, these independent sources will be training sessions sponsored
by Government Treasurers Organization of Texas (GTOT), University of North Texas
( NT), Government Finance Officers Association of Texas (GFOAT). No persons may
engage in investment transactions except as provided under the terms of this policy and the
procedures established by the Assistant City Manager. The Assistant City Manager shall be
responsible for all transactions undertaken, and shall establish a system of control to regulate
the activities of the Chief Finance Officer. The controls shall include a quarterly process of
independent review by an individual or firm designated by the Assistant City Manager, and
an annual review by an external auditor. The reviews will provide internal control by
assuring compliance with policies and procedures. The Assistant City Manager, Chief
Finance Officer, Mayor, City Council, City Manager and other Finance employees shall be
personally indemnified in the event of investment loss provided the Investment Policies and
Guidelines are followed.
B. Conflicts of Interest All participants in the investment process shall seek to act responsibly
as custodians of public assets. Officers and employees involved in the investment process
shall refrain from personal business activity that could conflict with proper execution of the
investment program, or which could impair their ability to make impartial investment
decisions.
C. Disclosure — Anyone involved in investing City funds shall file with the Assistant City
Manager and the Investment Committee a statement disclosing any personal business
relationship and any material financial interest in a business organization that handle City of
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POLICY/ADMINISTRATIVE PROCEDUREIADMINISTRATIVE DIRECTIVE
TITLE: INVESTMENT POLICY
REFERENCE NUMBER:
408.04
Denton investments. An investment officer has a personal business relationship with a
business organization if
1. The investment officer owns 10% or more of the voting stock or shares of the
business organization or owns $5,000 or more of the fair market value of the business
organization;
2. Funds received by the investment officer from the business organization exceed 10%
of the investment officers gross income for the prior year; or
3. The investment officer has acquired from the business organization during the prior
year investments with a book value of$2,500 or more for the personal account of the
investment officer.
Any investment officer who is related within the second degree by affinity or consanguinity
as determined under the Tex. Gov't. Code Ann. Ch. 573 to an individual seeking to sell an
investment to the City shall file a statement disclosing that relationship with the City Council
and the Texas Ethics Commission.
D. Prudence — The standard of prudence to be used by the investment officials shall be the
"Prudent Person Rule", as set forth in Tex. Gov't. Code Ann. Sec. 2256.006 and will be
applied in the context of managing an overall portfolio: "Investments shall be made with
judgement and care under circumstances then prevailing — which persons of prudence,
discretion and intelligence exercise in the management of their own affairs, not for
speculation,but for investment, considering the probable safety of their capital as well as the
probable income to be derived."
Investment officials acting in accordance with written procedures and the investment policy
and exercising due diligence shall be relieved of personal responsibilities for an individual
security's credit risk or market price change, provided deviations from expectations are
reported in a timely fashion and appropriate action is taken to control adverse developments.
E. Reporting
Monthly - The Chief Finance Officer shall submit monthly an investment report, to the
Investment Committee, that summarizes recent market conditions, economic developments
and anticipated investment conditions. The report shall summarize the investment strategies
employed, describe the portfolio in terms of investment securities, maturities, risk
characteristics and other features. The report shall include total investment return to date
and compare the return with budgetary expectations or projections.
i
Quarterly — The Chief Finance Officer shall prepare and present to the Investment
Committee and City Council a written report on the City's investment transactions for the
preceding reporting period. The report shall: 1) describe in detail the investment position of
the City as of the end of the reporting period, 2) prepared jointly by all investment officers,
3) signed by each investment officer, 4) contain a summary statement of each pooled fund
including a)beginning market value for the reporting period,b)additions and changes to the
market value during the period; c) ending market value for the period; and d) fully accrued
interest for the reporting period. The summary statement for each fund group must be
prepared in compliance with Generally Accepted Accounting Principles (GAAP). 5) State
the book value and market value of each separately invested asset at the beginning and end
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POLICY/ADMINISTRATIVE PROCEDUREIADMINISTRATIVE DIRECTIVE
TITLE: INVESTMENT POLICY REFERENCE NUMBER:
408.04
of the reporting period by type of asset and fund type invested; 6) state the maturity date of
each separately invested asset that has a maturity date, 7) state the account or fund or pooled
group fund for which each individual investment was acquired; and 8) state the compliance
of the investment portfolio of the City as it relates to the investment strategy of the City and
with relevant provisions of the Tex. Gov't. Code ch. 2256.
Annually— Within one hundred-twenty (120) days of the end of the Fiscal Year, the Chief
Finance Officer shall present a comprehensive annual report to the City Council on the
investment program and investment activity. The annual report shall provide a separate
quarterly comparison of returns and suggestions for improvements that might be made in the
investment program. The City Council shall review and approve the investment policy and
investment strategies at least annually and be documented by rule, order, ordinance or
resolution which shall include any changes made.
Compliance Audit—The City's external, independent auditor will conduct an annual review
of the quarterly reports in conjunction with the annual financial audit. The results of the
audit will be reported to City Council upon receipt.
The audit will review compliance with management control on investments and adherence to
this policy.
F. The guidelines of retaining records for seven years as recommended in the Texas State
Library Municipal Records Manual should be followed. The Chief Finance Officer shall
oversee the filing and/or storing of investment records.
VII. SUITABLE AND AUTHORIZED INVESTMENT SECURITIES
A. Active Portfolio Management — The City intends to pursue an active versus a passive
investment management philosophy. That is, securities may be sold before they mature if
market conditions present an opportunity for the City to benefit from the trade. (Subsection
E)
B. Authorized Investments (Per HB 2459 and Sections 2256.009 through 2256.017 of the Act)—
Assets of funds of the government of the City of Denton may be invested in:
1. Obligations of the United States of America, its agencies and instrumentalities
(maturing in less than five (5) years; which have a liquid market with a readily
determinable market value;
2. Investment - grade, direct obligations of the State of Texas (maturing in less than two
(2)years);
3. Obligations of the States, agencies thereof, Counties, Cities, and other political
subdivisions of any state having been rated as investment quality by a nationally
recognized investment rating firm, and having received a rating of not less than"AA"
or its equivalent(maturing in less than two (2)years);
4. Fully insured or collateralized Certificates of Deposit issued by state and national
banks or savings bank or a state or federal credit union, domiciled in Texas,
guaranteed or insured by the Federal Deposit Insurance Corporation or its successor or
Page 7 of 13
POLIMADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
TITLE: REFERENCE NUMBER:INVESTMENT POLICY 408.04
the National Credit Union Share Insurance Fund or its successor; secured by
obligations described in 1 through 3 above, and that have a market value of not less
than the principal amount of the certificates but excluding those mortgage backed
securities as described in the Tex. Gov't. Code Sec. 2256.009(b). (maturing in less
than one(1)year);
5. Fully collaterized direct repurchase agreements (whose underlying purchased
securities consist of the foregoing) with a defined termination date secured by
obligations of the United States or its agencies and instrumentalities pledged with a
third party, selected and approved by the City through its Chief Finance Officer, other
than an agency for the pledgor and deposited at the time the investment is made with
the City. Repurchase agreements must be purchased through a primary government
securities dealer, as defined by the Federal Reserve, or a bank domiciled in Texas.
Each issuer of repurchase agreements must sign a copy of the City's Master
Repurchase Agreement(termination date must be 30 days or less);
6. Commercial paper that has a stated maturity of 270 days or less from the date of
issuance and is rated A-1 or P-1 or an equivalent rating by at least two nationally,
recognized rating agencies.
7. a. Public Fund Investment Pools with a weighted average maturity of 90 days or
less. The pool must be approved(by resolution)by the City Council to provide
services to the City. The pool must be continuously rated no lower than AAA
or AAA-m or at an equivalent rating by at least one nationally recognized rating
service. A public funds investment pool created to function as a money market
mutual fund must mark to market daily and, stabilize at a$1 net asset value.
b. To be eligible to receive funds from and invest funds on behalf of an entity
under this chapter, an investment pool must furnish to the investment officer or
other authorized representative of the entity an offering circular or other similar
disclosure instrument that contains,at a minimum,the following information:
(1) the types of investments in which money is allowed to be invested;
(2) the maximum average dollar-weighted maturity allowed, based on the
stated maturity date, of the pool;
(3) the maximum stated maturity date any investment security within the
portfolio has;
(4) the objectives of the pool;
(5) the size of the pool;
(6) the names of the members of the advisory board of the pool and the dates
their terms expire;
(7) the custodian bank that will safekeep the pool's assets;
(8) whether the intent of the pool is to maintain a net asset value of one
dollar and the risk of market price fluctuation;
(9) whether the only source of payment is the assets of the pool at market
value or whether there is a secondary source of payment, such as
insurance or guarantees, and a description of the secondary source of
payment;
(10) the name and address of the independent auditor of the pool;
(11) the requirements to be satisfied for an entity to deposit funds in and
withdraw funds from the pool and any deadlines or other operating
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408.04
policies required for the entity to invest funds in and withdraw funds
from the pool; and
(12) the performance history of the pool, including yield, average dollar-
weighted maturities,and expense ratios.
C. To maintain eligibility to receive funds from and invest funds on behalf of an
entity under this chapter, an investment pool must furnish to the investment
officer or other authorized representative of the entity:
(1) investment transaction confirmations; and
(2) a monthly report that contains, at a minimum,the following information:
(A) the types and percentage breakdown of securities in which the
pool is invested;
(B) the current average dollar-weighted maturity, based on the stated
maturities of the pool;
(C) the current percentage of the pool's portfolio in investments that
have stated maturities of more than one year;
(D) the book value versus the market value of the pool's portfolio,
using amortized cost valuation;
(E) the size of the pool;
(F) the number of participants in the pool;
(G) the custodian bank that is safekeeping the assets of the pool;
(H) a listing of daily transaction activity of the entity participating in
the pool;
(1) the yield and expense ratio of the pool;
(J) the portfolio managers of the pool; and
(K) any changes or addenda to the offering circular.
8. An SEC-registered, no load money market mutual fund which has a dollar weighted
average stated maturity of 90 days or less whose assets consist exclusively of the
assets described in section B.1. and whose investment objectives includes the
maintenance of a stable net asset value of$1 for each share: furthermore, it provides
the City with a prospectus and other information required by the SEC Act of 1934 or
the Investment Advisor Act of 1940 and which provides the City with a prospectus
and other information required by the Securities Exchange Act of 1934 (15 USC.
Section 78a et. Seq.) or the Investment Company Act of 1990 (15 USC Section 80a-1
et. Seq.).
9. Other such securities or obligations which are authorized by the Act as approved by
City Council upon recommendation of the Investment Committee.
C. Prohibited Investments—The City's authorized investment options are more restrictive than
those allowed by State law. Furthermore, this policy specifically prohibits investment in the
following investment securities.
1. Obligations whose payment represents the coupon payments on the outstanding
principal balance of the underlying mortgage backed security collateral and pays no
principal.
2. Obligations whose payment represents the principal stream of cash flow from the
underlying mortgage-backed security collateral and bears no interest.
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3. Collateralized mortgage obligations that have a stated final maturity date of greater
than 10 years.
4. Collateralized mortgage obligations the interest rate of which is determined by an
index that adjusts opposite to the changes in a market index.
D. Diversification — It is the policy of the City to diversify its investment portfolios. The
diversification will protect interest income from the volatility of interest rates and the
avoidance of undue concentration of assets in a specific maturity sector; therefore, portfolio
maturities shall be staggered. Securities shall also be selected and revised periodically by
the Investment Committee. In establishing specific diversification strategies, the two (2)
following general policies and constraints shall apply:
1. Risk of market price volatility shall be controlled through maturity diversification and
by controlling unacceptable maturity extensions and a mismatch of liabilities and
assets. The maturity extension will be controlled by limiting the weighted average
maturity of the entire portfolio to 550 days. All long-term maturities will be intended
to cover long-term liabilities. In addition, five (5%) percent of the funds in the
portfolio will be liquid at all times.
2. The Investment Committee shall establish strategies and guidelines for the percentage
of the total portfolio that may be invested in U.S. Treasury Securities, federal agency
instrumentalities, repurchase agreements, and insured/collaterlized certificates of
deposit and other securities or obligations. The Investment Committee shall conduct a
quarterly review of these guidelines, and shall evaluate the probability of market and
default risk in various investment sectors as part of its considerations.
3. Risk of principal loss in the portfolio as a whole shall be minimized by diversifying
investment types according to the following limitations.
Investment Type %ofPoffolio
• U.S. Treasury Notes/Bills 100%
+ U.S. Agencies&Instrumentalities 100%
* State of Texas Obligations&Agencies 15%
• Local Government Investment Pools 50%
• Local Government Obligations(AA) 10%
+ Repurchase Agreements 25%
• Certificates of Deposit 100%
+ U.S. Government Money Market Funds 50%
• U.S.Treasury Notes&U.S.Agency Callables 35%
By Institution:
Repurchase Agreements No more than 10%
All Other No more than 40%
Investment Pools No more than $10,000,000
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E. Security swaps may be considered as an investment option for the City. A swap out of one
instrument into another is acceptable to increase yield, realign for disbursement dates,
extend or shorten maturity dates and improve market sector diversification. Swaps may be
initiated by brokers/dealers who are on the City's approved list. A horizon analysis is
required for each swap proving benefit to the City before the trade decision is made, which
will accompany the investment file for record keeping.
F. All investments (governments or bank C.D.'s) will be solicited on a competitive basis with
at least three (3) institutions. The Investment Committee can approve exceptions on a case
by case basis or on a general basis in the form of guidelines. These guidelines shall take into
consideration the investment type maturity date, amount, and potential disruptiveness to the
City's investment strategy. The investment will be made with the broker/dealer offering the
best yield/quality to the City.
The quotes may be accepted orally, in writing, electronically, or any combination of these
methods.
G. Arbitrage — Due to the bond issuance sizes of which the City incurs on a regular basis,
arbitrage should be addressed.
The Tax Reform Act of 1986 provided limitations restricting the City's investing of tax-
exempt General Obligation Bond proceeds and debt service income. New arbitrage rebate
provisions require that the City compute earnings on investment from each issue of bonds on
an annual basis to determine if a rebate is required. To determine the City's arbitrage
position, the City is required to perform, specific calculations relative to the actual yield
earned on the investment of the funds and the yield that could have been earned if the funds
had been invested at a rate equal to the yield on the bonds sold by the City. The rebate
provision states that periodically(not less than once every five years, and not later than sixty
days after maturity of the bonds), the City is required to pay the U.S. Treasury a rebate of
excess earnings based on the City being in a positive arbitrage position. The Tax Reform
restrictions require extreme precision in the monitoring and recording facets of investments
as a whole, and particularly as they relate to yields and computations so as to insure
compliance. Failure to comply can dictate that the bonds become taxable,retroactively from
the date of issuance.
The City's investment position relative to the new arbitrage restrictions is the continued
pursuit of maximizing yield on applicable investments while insuring the safety of capital
and liquidity. It is a fiscally sound position to continue maximization of yield and rebate
excess earnings,if necessary.
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VIII. SELECTION OF BANKS AND DEALERS
A. Depository — City Council shall, by ordinance, "select and designate one or more banking
institutions as the depository for the monies and funds of the City" in accordance with the
requirement of Tex. Loc. Gov't. Code ch. 105. The bank shall be selected primarily on
"solvency and stability"and secondly, on rate of interest available.
The Chief Finance Officer shall conduct a comprehensive review of prospective depositories
credit characteristics and financial history.
The bank shall be selected through a formalized bidding process in response to the City's
request for proposal (RFP) outlining all services required. The Investment Committee shall
have the discretion to determine the time span for rebidding the banking services contract;
however, a two year period will be the minimum length of time between bidding with a 5
year maximum period.
Banks and savings and loans associations seeking to establish eligibility for the City's
competitive certificate of deposit purchase program, shall submit financial statements,
evidence of Federal insurance and other information as required by the Chief Finance
Officer.
B. Investment Brokers/Dealers — The Investment Committee shall be responsible for adopting
the list of brokers and dealers of government securities. Their selection shall be among only
primary government securities dealers that report directly to the New York Federal Reserve
Bank, unless a comprehensive credit and capitalization analysis reveals that other firms are
adequately financed to conduct public business. The Investment Committee shall base its
evaluation of security dealers and financial institutions upon:
1. Financial conditions, strength and capability to fulfill commitments;
2. Overall reputation with other dealers or investors;
3. Regulatory status of the dealer;
4. Background and expertise of the individual representatives.
The Chief Finance Officer shall conduct business with securities dealers approved by the
Investment Committee or with banks selected as outlined in VIII. Furthermore, the
committee must annually review this list of qualified brokers authorized to engage in
investment transactions with the City. Investment Officers shall not conduct business with
any firm with whom public entities have sustained losses on investments or whose name the
Investment Committee has removed from an approved list.
C. Compliance — A qualified representative from any firm offering to engage in investment
transactions with the City is required to sign a written instrument. This certifies that they
have received and reviewed a written copy of the City's Investment Policy. The firm must
acknowledge that it has implemented reasonable procedures and controls in an effort to
preclude investments between the City and the firm that are not authorized by the City's
investment policy. Approved brokers and dealers must complete Exhibit A and return it to
Page 12 of 13
POLICY/ADMINISTRATIVE PROCEDUREIADMINISTRATIVE DIRECTIVE
TITLE: INVESTMENT POLICY REFERENCE NUMBER:
408.04
the Chief Finance Officer. The City's investment officer(s) may not transact business from
a person who has not delivered the required written instrument to the City.
D. Diversification—To guard against default possibilities under these conditions, and to assure
diversification of bidders, business with any one issuer, or investment broker, should be
limited to (40%)percent of the total portfolio at any point in time. In this way, bankruptcy,
receivership or legal action would not immobilize the City's ability to meet payroll or other
expenses.
IX. PRINCIPAL PROTECTION AND SAFEKEEPING
A. All banks and savings and loan associations' deposits and investments of City funds shall
be secured by pledged collateral with a market value equal to no less than 102 percent of the
principal plus accrued interest less an amount insured by FDIC or FSLIC. Evidence of
proper collateralization in the form of original safekeeping receipts held in the institution's
trust department or at a third party institution not affiliated with the bank or bank holding
company will be maintained in the office of the Chief Finance Officer all time. The
Assistant City Manager, Chief Finance Officer or other authorized City Representative will
approve and release all pledged collateral. Collateral will be reviewed monthly to assure the
market value of the securities pledged exceeds investments and/or the related bank balances.
The Committee shall request additional collateral in the event they deem that their deposits
and investments are not sufficiently protected by the pledged collateral.
B. Safekeeping procedures shall be established by the Investment Committee which clearly
define steps for gaining access to the Collateral should the City determine that the City's
funds are in jeopardy. Collateral safekeeping and substitution agreements will be a part of
the procedure.
C. Collateral Defined — The City of Denton shall accept only the following securities as
collateral:
1. FDIC and FSLIC insurance coverage.
2. United States Treasuries &Agencies.
3. Other securities as approved by the Investment Committee.
D. Delivery vs. Payment — All transactions will be executed with authorized security dealers
and financial institutions on a delivery-versus-payment (DVP)basis. That is, funds shall not
be wired or paid until verification has been made that the Trustee received the collateral.
The collateral shall be held in the name of the City or held on behalf of the City. The
Trustee's records shall assure the notation of the City's ownership of or explicit claim on the
securities. The original copy of all safekeeping receipts shall be delivered to the City.
Securities will be held by the City's safekeeping agent, which shall be selected through a
competitive process(RFP)or that agent's representative in New York City, or in it's account
at the Federal Reserve Bank.
E. Subject to Audit—All collateral shall be subject to inspection and audit by the Chief Finance
Officer,or designee, as well as,the City's independent auditors.
Page 13 of 13
POLICUADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
TITLE: REFERENCE NUMBER:
INVESTMENT POLICY 408.04
X. MANAGEMENT AND INTERNAL CONTROLS
The Chief Finance Officer, or designee, shall establish a system of internal controls, which shall be
reviewed by an independent auditor. The controls shall be designed to prevent losses of public
funds arising from fraud, employee error, and misrepresentation by third parties, unanticipated
changes in financial markets, or imprudent actions by employees or investment Officers of the City.
Controls and managerial emphasis deemed most important that shall be employed include the
following:
Imperative Controls_
- Custodian safekeeping receipts records management
- Avoidance of bearer-form securities
- Documentation of investment bidding events
- Written confirmation of telephone transactions
- Reconcilements and comparisons of security receipts with the investment subsidiary
records
- Compliance with investment policies
- Verification of all interest income and security purchase and sell computations
Controls Where Practical:
- Control of Collusion
Separation of duties
Separation of transaction authority from Accounting and Record-keeping
Clear delegation of authority
- Accurate and timely reports
- Validation of investment maturity decisions with supporting cash flow data
Adequate training and development of Investment Officials
- Review of financial conditions of all brokers,dealers,and depository institutions
- Staying informed about market conditions, changes and trends that require
adjustments in investment strategies.
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Planning and Development
ACM: Howard Martin 349-8232
SUBJECT— S05-0001: (Northstar Bank)
Hold a public hearing and consider the adoption of an ordinance regarding a request for a
Specific Use Permit for approximately 0.904 acres to allow a drive-through facility. The
site is in a Neighborhood Residential Mixed Use (NRMU) zoning district. The subject
property is generally located at the southeast corner of Sundown Blvd. and Teasley Lane
and is platted as 1R-1, Block B Sundown Ranch Commercial Lots. (The Planning and
Zoning Commission recommended approval 7-0).
BACKGROUND
Applicant: Bobby Dollak, G& A Consultants, Inc. Lewisville, TX
The applicant is requesting a Specific Use Permit for approximately 0.904 acres to allow
a drive-through facility as part of a proposed bank. A bank is allowed in the NRMU
zoning; however, a drive-through is allowed only with a specific use permit.
Public notification information is provided in Attachment 3. As of this writing, staff has
received one response in opposition from property owners within 200 feet of the subject
site.
PRIOR ACTION/REVIEW
The Denton Planning and Zoning Commission voted 6-0 on October 12, 2005 to continue
the public hearing to October 26, 2005 so that the applicant could consult with the
homeowner's association to address its concerns regarding the location of the proposed
drive through.
The applicant met with the HOA to discuss the proposed drive through. HOA president,
Matt Bowler, spoke at the October 26, 2005 public hearing at the Planning and Zoning
Commission in favor of the Special Use Permit request on behalf of the Sundown Ranch
Homeowner's Association. Applicant proposes to leave the drive through location as
originally proposed; applicant made minor adjustments to the location of the dumpster.
Applicant will also be assisting the homeowners association with irrigation and with
electricity for the association's sign.
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 7-0.
ATTACHMENTS
1. Staff Analysis
2. Maps
3. Public Notification (Property Owner Notification Map)
4. Site Photos
5. Building Elevations
6. Site Plan
7. Minutes
8. Letter of Opposition
9. Ordinance
Respectfully submitted:
Kelly Carpenter, AICP
Director of Planning and Development
Prepared by:
z
Lori Shelton
Planner II
2
ATTACHMENT 1
Staff Analysis
Summary of Zoning Request
The applicant is requesting a Specific Use Permit for approximately 0.904 acres to allow
a drive-through facility. The site is located in a Neighborhood Residential Mixed Use
(NRMU) zoning district. The subject property is generally located at the southeast corner
of Sundown Blvd. and Teasley Lane. A bank with a drive-through is proposed.
Existing Condition of Property
The property is currently undeveloped.
Adjacent zoning and land uses.
North: Neighborhood Residential Mixed Use (NRMU) (undeveloped land)
South: Neighborhood Residential Mixed Use (NRMU) (developed office use)
East: Neighborhood Residential Mixed Use (NRMU) (undeveloped land)
West: Neighborhood Residential Mixed Use (NRMU) (municipal buildings)
3
ATTACHMENT 2
Maps
NORTH
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LOCATION AND ZONING MAP
4
ATTACHMENT 3
Public Notification
12010, F713UF
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i 500 FT BUFFER
Scale: None
Newspaper Notification Date: Oct 2, 2005
Percent of land within 200' in opposition: <5 %
200' Legal Notices* sent via Certified Mail: 10
500' Courtesy Notices* sent via 1St Class Mail: 48
• In Favor: 2
• Opposed: 1
• Neutral: 0
5
ATTACHMENT 4
Site Photographs
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ATTACHMENT 6
Site Plan
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ATTACHMENT 7
Planning & Zoning Minutes October 26, 2005
Can dwwit m
111age 3
1 P ROC BET)IN 0 S 1, ddNcmhRru&1n And[lw,ARmxiatad traffa8- 7w ILannaig
2 w4m isma.-,mass RAN-or: 5=1 ewring.Indies 2 and Zuwti iV CfwarhLsjft iriqwdctod*.c applicant in commie
3 ant]3cnilmiren. Ws&V, And-wc wlIl c)o-rivritic Lhe 3 ynd,,a wqhbKTIiood Lvov to aridmqa de conccrn�
4 (Xiolicir 26th utixting of'llix Planning And Zoning 4 regimfing the frrolcct. Tfi.-applicant flm WiT13 jtw iio,%11w,
5 Co-nilission,and aqR liar yoa will jidir wifth us an the 5 Friday after thc wit:xtitig,
6 Plo*to ft flag, 6 Staff undersm ids that tibc mcm Jim agruad
7 (Thmupon,ittit;Nedgm of A14%ioAm cAw 7 rd€swop pw s1 fiat sr P as xnfnt attad. mr.r3Uw4-,T,0w
1whod-) 8 pRNW01t of dr,R40A if,here Lmighc as WCH as the
CUMMEWWR&TRA1*)R: AV first ih3n On 9 applic-nit. And I CEM w4 ;Y may Questions-
III ific AgaiRla R to witsidcr 1W approval d the mirmlirs of to C-Z1-MNWW0-;5R STRAMQFz Arty e a i orrs 0"
11 Ov oiaetntg of()Ltobrr 4w 12th,2Q05 My.,Roy. I1 smM Thank you, We will vprrt Llic-public hating ml is
12 110y,Y". I 10cr to Page 12 +.v applicam 1WtC And(to OWY Wish W XPLN11•7
13 33:. I'w mintom do not t the mutes of the v0W. 13 MR.W-LLAK i aim bets. And my,nammn,;-q
14 And it seems they?d=M M-kxi thz resutin;of the wobm f4 flabby Doilak wifli Cj&A CknouftanU. Midi I'd be bappy at
o, I tin twwmber tt,but inay t�dmax,Nhoukl be RkmitUdy 15 amsmvir any quoliois. A5 LhGplamicr said we did owct
16 officially to put is dawm. 16 that vory'next Friday and bad a good intreang mb OL,
17 NIS.C-ARVENTIER We'll lokf-,CAM Of OVIL 17 E1w=wmT'm Assorimiort expWining how wctwimu Elbow our
18 kfrd C"U'ry"a"1 18 pw pjo,az4(itLy onoapt wilb the b>,jjk, And Ibc.TiLwo
19 03MOS5EWER ROY;WWI OW Q0=6011i,1 19 vm workrA"with tb=i tho isst i1xil they had Swwvm
20 snow approval of t1w mintno. X aboul'al tic iml P&Z
21 SIRAWifi,JXT W tear,-11 q=)r!& 2f WMM118310NERSTRANGE. had W1121 We'K
22 iomm Issommm LAGU•-mxund• 22 qo;ang is-is Lbo agrecd upon plan?
�23 we have a im-lion by 23 Ma L)OLLAr-c-orw.t. !'%v a-
24 tiny, it
24 ki 90rond by Mm Ho h. Please,vote, 24 ximmiRw s kind of1wid w
25 71tv,vat:passes M. 25 sx.
Paget Prip 4
1 Nat ibmn m ft AFadm it our Consent; I MR-DGLLAY,: Wdl.krr,14V S:SW W
2 A%.mida. And L&pbinning and Zf.%,ing(7onninkiian had the 2 got Lhc to tioil ham, This ow.is a link,US wr To
3 4�ppnfwftity 0 n with Staff prior:01018 fat's almrin a S�W 11 IEWI a!04,ak-ArlO
4 in it wurk w,;,ron,aixl1 to mvivw 111 of flit itz"'s on Or, 4
5 Comma Agvndai- And,-so do=Inivo a m(nion for Oar 5 mx,wLiiAK! And 0,fm I kind of gn,kccp
6 appioval of the Consent AgOndA• 6 t1m iijpiei up tYx And kind of more jjnpwmndy is how
7 03WESSIK)NIPIR,HOOT, 7 Vr,,W,n=Tl e�--the drivc-Throuo as fat as adding (irnz
8 fXot&j o s s to K m; sips mj e� w wr,b a vu a ,mdl7 8 addiliong!5)vubs aiwtg,this driwAhrough lone,as card
9 X1P,1MW:1KiNt4A THffi0U#,AUX "AW010- 9 jiuck up as Well AS ffteir conczirns abaw Lbeis-it
to CDMMn%fJNF1R SrRANOB 'A"t b4N=a M06011 IrY current nomotpunt silo fvw 11wir-,mbdivisim,Pjnd how that
I Tjr,f1pli,a trd.by T)r.ILWhadcaux- lls:osv,voto was gonig to Par ma inwinbd and media ortatud"
l2 AM d1j,VoW pwiwq 7-0- 12 And tbiq k kiml of dw ouflinc oftlic-
13 • e rt"t iwm on o=Apmda nra putdiu 13 wpcealtnit thstl viVJ•,(itac up w.h1i on how aik bt,,nk w-ps goris
14 lic-mringm. We haw,one]-whlil bmifing tOD04 wbirlik IS 14 to water 010exulant;monuircilt pyrn,the chluch--I
fbain No.4A. And this is kit dL,—qppmwqt of a rooskic4t 15 meats,111 hojn-&5�W=,R AIL"I'L W)hlg Ul looimAiij 111t,
for a spodric Ux.,FIA"it fcw approxilTimly W4 seas W. 6 bUIS and S1.11 rL and W,VWa piR�tO 01404 N0 131C W&KAWI
7
17 allaw for a&iwtUOUFJ1 fUihtY- M5,Shtlkntl landwalsiog to lbtlp sliiold%mi--thm finis c,-Ltrffoqtzl 'hal
lb 1AS,SWLMN:000d covmirg. Th.%ilam igi lb w ih.t A dVy had 0a
19 ContimmiLm k0a 21)wiu Iwafirig"Irst brought maiv 11to 19 BUT t1ley Undt". UXId JW CXPIA1111PR WC
)tl The 20 had to put thi,drive-dwou0i on thm smic nod the wluxk:
21 is fc,A Sr�"jyjc Tj, penriL icir a dria-c-1hroUgIl 21 purptm.of-fbr traffic flow and avr2Abirig,. So it W03
22 for dw,Proposed Nmrdumr Bank At 010 Cc=m of sanklmn 22 a P-my good nactifig.
23 Boulvard and T'-aoilcy Lane: 23
24 As ym T"I,die Sundown Ranch Hmraowum 24 exam."twoNER AV 1'. 1 IV=Was .loo a
25 I'Lqsocialion W goinz concLinis about 114 locakion of fl4 25 cowwL about the trash diainpOers.
PLANNING AND ZONING MINUTES OCTOBER 26,205 Pagc, I - Page,4
9
con&-moul-M
Page 5 Fags 7
1 ML UOLUtk: WL12,IbPF's cor=t. Arid I havu.an electric tra.V-r Lhat'g,m Or ofIT10sibn sick-of Lh,a
2 ILfIfY WU eXP[anftbd,I Meari,U=L's The trash"!pqWt. 2 qW, which is wlx:m-'Ax.'m ons to bc xRle to bi=k off
3 It's the orst before tb:trash dump wus up a firldc bit 3 of and not ha-t%to worry about losing our okxtricat trem
4 farditT MW aboat em-, Stiff mWk U's mova,it bock 4 whoever bnWs on flic other Ni z of the stmet.
5 item and on tho laDdscape phn.the dumpster--after 11ity 5 Onrwatw meter is whm their driveway w,,.q
nmllpxi it W:ms CpOosod-,W&nm,sceocftcd Arood,and goin8iobc%
7 licy Unctitmm-4 awl.%t rdaUy oJ41an't put 11 anywhm 7 ag=mnm Aid I think it waa,as Bohby Said,a,mr),
8 elm ot)the sjW. 8 good nweing. So%r hffvc our waW. and r4corwiA lnk.n
9 So!thailk we've tney.Oho staff's 9 Cair,of,
]a reoi=leftls aftd oxNaanad to EiV1==WE=&Why--WhY 10 l--as you 0 sugpswd followed t1-ffoiAh
j I is thm and Low We're going 10 Sam it I I with thet erpmerillig delm"Oreat.Con,=ang,4;Tafflc
12 owmmioNER iirmr And what c,,i that 12 signal. And�ofr*bt zicm,t14 traffic eoutor,we
13 Cloud-Ow thing over the wp? 0 alm4y haw itraf`;W counts back., Tht*-'m not sufflciva
14 MR.LY)LLAK: 1,bv c1md--I'll kifid of read 14 fbW 4 S 1pal yam, [%tL wk-D tl.Jqy It"in ftir ftafi-W I(,
15 Haig. It Says Ed]3inKjqw-n Mandl[LiEtwimiktis.bolding withia 15 iriupnta t analysis„Dud Voulkav Las amumki ox that that
16 ft clmdcd ama to he contained--IS:"n=md to the t 16 would push tho nutriben owner dm mquiramems to get a
:7 Nortbatitt-imp,40on and uiox4ram- IIi offior WX41,t]it4 ly 17 uaffic&igniiL SQ 1h4t ld,bo in ftovork3 aswcll
18 have°°ih y halve sonic]fights that lot tip IN •signs, 19 So I-I wam 10 Ray that we support*is
19 We're Ong to lie that into the Ovarmal meter.or L4- 1-4 bank,and we suppr a bank,fin oreal!,io tlx llm
-V bmjk,a-,;iAvll as tic,diat 14t bit of irtipfl"5 fimi 20 p
21 ifrig;Am iliat aril in with t1w,irri-SpI[on s Ys wn or 21 something. Sic)just dot nk ym-to the Planning arui Zainng
22 U-Norlbsiar BAR"k, 22 fur 1waring mr cromcurjls itod t°r Nurffislat The mcetbiE with
23 (VNIMMONER HG1,1: TIMInk YA.M, 23, L and working that out.
24 COLMMMUMEAVRARON WM!d YOU 51.*that 24 T hank)VU for YOUr
25 pieta"upjust 4 Haw W.so I can See the dumpsbu [25 oullimIn".
Paga 6
I thhig? AM rfgbt. 7hapk you, I COMMESSIONF-R 4TR's-ME ArIYWMe13a;'? That lm
2 MR rxA.E.Ax- W,,Choir uxi%ti mg water 2 ffic mity cArd eve had. Is flIcro a nyom clso wino.wighw to
I inctiff itim waters thcir whole cntryway lit right that in 3 spmk fcT Ija i1vin? I had no cards speaking against,to
4 tic.driveway, So ftt wgser mter is Ong m Have to be 4 -AV Will Clow ft Public hmrblg
5 relented. Som'rejust going to slWo it up, 5 Dot ue have a i-raction tai this i1cm
6 CO". I&MONEft STRANOB ,any n*=qUe$Ii01'18 6 W,Roy-
7 a tho apphoarO Umiik yotl very iMcb. COMmISSIONEIR ROY- In MEIAU rV,IVY 4tl0fim.1
8 1would mention if anyhoo wijbLs jtt sj.=k S Want In qaytbaa you in,V=develo sr. E flank lhisfig
9 e4lrw for CT Wj#dngt"s itan"*CY 2=j to havc I Ukd iI --thi,,way it was M ndkYJ is vUl 011ir good dale hbor
to out a ycllnw cuTd agal mTn it in at the fret. Is 11m, 10 Nerbmr)xNm3jd ba,,,e wanz�l it v)hAve 1jappeo, Anel I
H a ry atxc€-w lwm who WisIrs 10 1311cak for this IWM? I I "n mdaisitind that maybt,you didn't disk abalo is a'Ih,-
2 Is jh=any=h=who wisjk8 io g", -a-k 12 bq3inning.
13 Arid one,oflieT 1,[n1z correction,wv did rxcm
i apainsi this i=:?
4 mik wywcuK, [,m fi=to spank for 11w ism 1 instruct,we mques&L 'nt=� s a d iffact,=-
5 :15 by lcgA[5mv tin se ago that was,�.an't rcquin or instm(,;
Zcnualj�y- 11 my Coar-ag sonw surprise, Blit I Ht it my i
6 m-sponsibilily to 10ually sh1w up- 16 tbmkjmd3o twng�- Batmv,vckarrx�d anus gmxj
7 C04,Jog%ONER STRANOM Ofln Y*U,S31VC 14g)i011r 17 vAjn=ujLkajj-;jns alw1ilis lIcip,3- tiai 1 would like,w move
a ria3m and addlictss,pklaso? is appmwal of t1jis,kin,4A,
19 ttz.BOWL 14R,malt B4owlrx,17114 Hotlaw RidtV. 39 s&-,umd.
20 T�jNvarjd pmgaamt of Am Sundmi Rucit I Intiloownm 20 SURAN414.' WC IM
2i AsViCiMiUlt. f+jncc I nude thtwguy%qly.yw up aLi-min this 21 Nit.Reny. n gecon(!by Mrs.Hall. And I would qM lb-m
22 mv6,,l figamd I WUT show yak tip anal I uls,11 waNwil To 22 m awn Ms.800tom&;Rmr-in an let vacatkin to make flial
.0 yrwke sum that vmno-d sheir i0ans actually vkz-c,7TCsCnt*d 23 matting. so VV APPM iate Your o(gorts as wt1ll-
24 ir,lhmt of thr actual Planning and Zmhog Cortuninsion. 24 Is REWtv ally otiff dimmion,an this ke,10
125 -floe Ilaineowners mmmiation actimally does 125 l anly F t nas snia l otrua rs, IL's gait Going CoAlcm -
PLANNING AND ZONING MYNUTES OCIVRER 26,2005 Page,5-Pap 8
10
CA)UdWS61t"t
Page 9
1 sn•vow,bLd I fml ca mpdW to s,,W it- I&ff,haw
i0wic po-sunal concert,wiffi ilbe,stackh-S 01-mit una4i
3 pwsibly occim in*osc&Avin Wax or if fficpyhogr
4 mick shows tip at 2,-,00 m FTiday allmmaast tad bloLls up
5 the parkui�Int flut I'vc bmi aspawd by stud`that
6 ag iug has revk-wed thaw and sea:no rmblamwkh it,.
7 So if Ity om no pmhlem wAh it,I guppasz I d(ft
a atha. But I Wall WL)aTY akjul alat was day-
9 So we bow a-um Ala,.a 5rcord m'vj jw
10 6�wu.�,sivai,gi w("d you,pleaw vcLA
I1 And dr-voir passcs 7-f1.
12 AAd thc,only ctkx km on orw tWwk is
`3 wmsidoT arty fwmAp"ait=s Does anyonc haw arty
14 imini? If trot,vm wall movwn m mwiftg at 6A2-
I� (Emd Proavdings.)
16
17
19
19
20
21
23
24
25
ANWTW(', AN 11 ZONI NG MI MUTES OCTOBER 26,2005 Vage 9-Patyc 9
11
ATTACHMENT
Letter of Opposition
NOTICE OF pUBLIC HEARING
S05-0001 a public hearing on Wednesday,
The Planning and Zoning commission of the city of Denton Will hold
October 12, 2005, to consider making a recommendation to city Council regardini a request 41or a
r permit for approximately 0.904 acres to allow a drive-thru facility. The site is in a
1�pecific Use zoning district The subject property is generally located
Neighoorhood Residential Mixed Use(NRMU) sley Lane. A bank with a drive-thru is proposed,
at the southeast corner of Sundown Blvd, and Tea
(sc5-0001,Northstar Bank,Lori Shelton) ers of City Hall located at 215 E.
The public hearing WJ[start at 6:30 PLMI in the City Council Chamb (200) feet of the
McKinney Street, Denton, Texas Because you Own property within two hundred
Deity. the Planning and Zoning Commission wouid like to hear how You feel about this
subjw,;t prol f the public heafing Please, in order for your opinion to be taken into
request and invites you to attenG
account, return this form with your comments prior to the date of the public hearing, (This in no waY
prohibits yet., from attending and p9rocipating in the public hearing.) you may fax 't to the number
located at the bottom or rnail it to the address below or,drop it off in-person�
Planning and Development Department
221 N.Elm ST
Denton,Texas 76201
Attn. Lori Shelton,Project Manager
the percentage of landowners that support and oppose the
These forms are used to calculate [n support and in Opposition-
request. The Commission is informed of the percent-of responses
Please circle One'
est opposed to request
In favor of request Neittral to reclu
Reasons for Opposition:
Printed Name:
mailing Address-,
Telephone Number:
P hysi call Add re ss of property within 200 feet:
LLC1Ty'_0FDE1VT0N, TEXAS CITYIHALLWEST - DENTON,TEXAS 76201 W,3A9,8541 (9940,34q-7707
12
SA0ur Documents\Ordinances1051S05-0001.doc
ATTACHMENT 9
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE
PERMIT FOR A DRIVE-THROUGH FACILITY ON APPROXIMATELY 0.904 ACRES OF
LAND, GENERALLY LOCATED AT THE SOUTHEAST CORNER OF SUNDOWN BLVD.
AND TEASLEY LANE,LOCATED WITHIN A NEIGHBORHOOD RESIDENTIAL MIXED USE
(NRMU) ZONING DISTRICT AND IS PLATTED AS LOT 1,BLOCK B SUNDOWN RANCH
COMMERCIAL LOTS IN THE CITY OF DENTON,DENTON COUNTY,TEXAS;PROVIDING
A SEVERABILITY CLAUSE;PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT
OF$2,000.00 FOR VIOLATIONS THEREOF,AND PROVIDING AN EFFECTIVE DATE.(505-
0001)
WHEREAS,G&A Consultants,Inc.has applied for a specific use permit for a drive-through
facility for Northstar Bank within a Neighborhood Residential Mixed Use(NRMU)zoning district
classification and use designation, on approximately 0.904 acres,generally located at the southeast
corner of Sundown Blvd. and Teasley Lane, and is platted as Lot 1, Block B, Sundown Ranch
Commercial Lots.
WHEREAS, on October 26, 2005, having found that the approval criteria of Sections
35.3.4.B.e and 35.13.11 of the Denton Development Code had been satisfied, the Planning and
Zoning Commission recommended approval of the specific use permit for a drive-through facility;
and
WHEREAS, the City Council concurs in the findings of the Planning and Zoning
Commission, and finds that the Specific Use Permit is consistent with the Denton Plan; NOW,
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance are
incorporated herein as true;
SECTION 2. The Specific Use Permit attached hereto and incorporated herein as Exhibit A
is hereby approved for the property described in the caption of this ordinance;
SECTION 3. If any provision of this ordinance, or the application thereof to any person or
circumstance, is held invalid by any court, such invalidity shall not affect the validity of other
provisions or applications, and to this end, the provisions of this ordinance are severable.
SECTION 4. Any person violating any provision of this ordinance shall,upon conviction,be
fined a sum not exceeding$2,000.00,with each day of violation constituting a separate and distinct
offense;
SECTION 5. This ordinance shall become effective fourteen(14) days from the date of its
passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be
published twice in the Denton Record-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 52005
EULINE BROCK,MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
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PAGE 2
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PAGE 3
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Economic Development/Downtown Development
CM/DCM/ACM: Mike Conduff, 349-8306 H
SUBJECT
Consider adoption of an ordinance of the City of Denton approving a lease agreement between
the City of Denton and John Eric Schmitz for the lease of a portion of street right-of-way for the
constriction, occupancy and maintenance of a porch area in conjunction with a business located
at the Northeast corner of Walnut and Cedar Streets, which is commonly known as 209 W.
Hickory, Denton, Texas; and providing an effective date.
BACKGROUND
The Economic Development and Downtown Development staffs have met with Eric Schmitz,
owner of 209/209 B West Hickory, regarding the expansion of Saltwater Caf6. The proposed
plan is to build a patio area out from the existing front and side of the building into the right of
way at the corners of Walnut and Cedar Streets (see attached drawing).
City Council discussed the proposed project at their September 6, 2005 meeting, at which time
staff was instructed to negotiate a lease with Mr. Schmitz that would accommodate the project.
Staff met with Mr. Schmitz, reviewed the appraisal information and established a lease rate. The
lease provides the following:
• A term of 30 years with the option to renew for two additional 10-year terms
• An annual lease rate of$1,364.
• Requires that constriction of the expansion begin within 180 days.
• Requires lessee to submit constriction plans for review and approval.
• Requires the design and constriction of the sidewalk to be reviewed and approved by the
City Engineer.
• Support of the City Council for a variance to the width of the sidewalk, due to site
constraints.
OPTIONS
Approve the lease as written
Amend the lease
Deny approval of the lease
RECOMMENDATION
Staff recommends approval.
1
PRIOR ACTION/REVIEW
This project was discussed at the City Council Work Session on September 6, 2005, at which
time staff was instructed to work with the property owner to create a lease and ordinance
supporting the expansion of the property.
FISCAL IMPACT
The lease will result in an annual lease payment of $1,364, with adjustments occurring every
other year based on the United States Consumer Price Index for the Dallas-Fort Worth area.
ATTACHMENTS
A. Ordinance
B. Proposed Lease Agreement
C. Property Description
D. Site Plan Improvements
E. Appraisal
F. Site drawing
Prepared by:
Julie Glover
Downtown Development Manager
Respectfully submitted:
Linda Ratliff
Director of Economic Development
2
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON APPROVING A LEASE AGREEMENT
BETWEEN THE CITY OF DENTON, TEXAS AND JOHN ERIC SCHMITZ FOR THE LEASE
OF A PORTION OF STREET RIGHT-OF-WAY FOR THE CONSTRUCTION, OCCUPANCY
AND MAINTENANCE OF A PORCH AREA IN CONJUNCTION WITH A BUSINESS
LOCATED AT THE NORTHEAST CORNER OF WALNUT AND CEDAR STREETS,WHICH
IS COMMONLY KNOWN AS 209 W. HICKORY,DENTON, TEXAS; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, John Eric Schmitz (the "Owner") is the owner of the west one-half of Lot 1,
Block 2 of the Original Town of Denton, being at the northeast corner of Walnut and Hickory
Streets, and commonly known as 209 W. Hickory,Denton, Texas(the"Owner's Property"); and
WHEREAS,the Owner has requested the lease of adjacent street right-of-way for the purpose
of constructing,occupying and maintaining a porch area in conjunction with a business on Owner's
Property; and
WHEREAS,the City Council has been presented with a proposed lease agreement between
the City of Denton and the Owner, a copy of which is attached hereto and made a part hereof as
Exhibit "A" (the "Agreement"); and
WHEREAS, the City Council hereby;finds that the Agreement will promote economic
development, enhance Denton's downtown development, and is in the public interest; NOW,
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance are
incorporated herein by reference
SECTION 2. The Agreement is hereby approved. The City Manager, or his designee is
hereby authorized to execute the Agreement on behalf of the City and to carry out the City's rights
and duties under the Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 52005.
EULINE BROCK, MAYOR
S:\Our Documents\Ordinances1451Schmitz Lease Ordinance.doc
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDE CITY ATTORNEY
BY:
4
1I
Page 2
LEASE OF CITY PROPERTY
This Lease Agreement is made and executed to be effective this day of
, 2005 (the"Effective Date') at Denton, Texas,by and between the
City of Denton, Texas, a municipal corporation, hereinafter referred to as "Lessor" or
"City", and John Eric Schmitz,hereinafter referred to as "Lessee".
WITNESSETH:
WHEREAS, Lessee is the owner of certain real property located at the northeast
corner of Walnut and Cedar streets in the City of Denton, Denton County, Texas,
commonly known as 209 W. Hickory Street which is the west one-half of Lot 1,Block 2 of
the Original Town of Denton and being more particularly described in Attachment "A"
attached hereto and made a part hereof by reference("Lessee's Property"); and
WHEREAS, Lessee has requested that it be allowed to lease a portion of the street
right-of-way adjacent to Lessee's Property in order to construct, occupy and maintain a
porch area in conjunction with the operation of a restaurant on Lessee's Property; and
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants contained in this Agreement,the parties agree as follows:
1. TRASEDPRFMTSFS
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 11, the following described land situated
in Denton County, Texas:
A. Land. A tract of land, being approximately 1,234 square feet, drawn and outlined
on the site plan (the "Site Plan") attached hereto and made a part hereof by reference as
Attachment `B attached hereto and made a part hereof by reference (the "Leased
Premises'). On or before 30 days after the Effective Date, Lessee at its own expense shall
deliver to Lessor a survey and metes and bounds description of the Leased Premises which
will be attached hereto and made a part hereof as Attachment "C". Should Lessee fail to
deliver the survey and metes and bounds description within said time period, the Lessor at
its option may extend the time period for compliance or terminate this Lease Agreement
rendering it null and void and of no further force and effect.
B. TUPROVEMENTS PROVIDED BY LFSSOR: NONE: There will be no
improvements provided by Lessor.
C.. On the Leased Premises, Lessee
shall construct a porch(the"Porch"), and other improvements as shown on the Site Plan the
Improvements. The Improvements are also illustrated on Attachment "D" attached hereto
and made a part hereof by reference. In addition, Lessee shall construct a city sidewalk and
install landscape improvements within the city right-of-way outside of the Leased Premises
Page 1
as shown on the Site Plan ("City Improvements") . The Improvements and City
Improvements shall be commenced no later than 180 days after the Effective Date as
evidenced by the issuance of a building permit (the "Commencement Deadline") and
completed no later than 720 days after the Effective Date as evidenced by the issuance of a
certificate of occupancy for the porch structure and acceptance by the Lessor of the sidewalk
(the "Construction Deadline"). The City Improvements shall become the Lessor's
improvements upon completion and acceptance by the City.
Notwithstanding anything contained in this Lease Agreement to the contrary, a
failure to meet the Commencement Deadline or the Construction Deadline 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 the Porch shall be removed from the Leased Premises at
the sole expense of Lessee. If Lessee fails to remove the Porch within 90 days after
termination, then the Lessor may do so at the expense of the Lessee. Lessee shall pay
Lessor such costs of removal and restoration within 30 days after receipt of an invoice
from the Lessor. If the invoice is not paid within said time period alien is hereby
established against Lessee's Property to secure payment. In such case Lessor is
authorized to file an affidavit in the Denton County Real Property Records against
Lessee's Property to evidence the lien.
D. APPROVAL OF CDESTRI JCTTQN PLAN . Prior to commencing construction
of the Improvements Lessee shall submit to Lessor construction plans for review and
approval to make certain that the construction plans are in conformity with the Site Plan.
This review is in addition to any review required by the Building Official for issuance of a
building permit and to insure compliance with City Codes. No later than 60 days after the
completion of the Improvements Lessee shall deliver to Lessor as-built construction plans
of the Improvements in a form acceptable to Lessor(the"As-Built Plans").
E. STDF.WALK_ The sidewalk shown on the Site Plan will be reviewed and
approved by the City Engineer and will be accepted by the City as a public side walk upon
completion. The Site Plan shows the side walk as 5 feet in width. The City Development
Code requires an 8 foot wide sidewalk. Because of the physical constraints at this location
Lessor's staff will support a variance before,the Planning and Zoning Commission.
F. S AFF.TY MEA ST IRES DT TRTNCT CYINSTRT TC:TTC)N. Lessee shall be
responsible for providing all safety measures during construction such as barricades to
insure that motorists and pedestrians are adequately protected from the construction
activities.
G. T F.ASFT-TOT D CONNF.C`.TF.T)TOT SSFF,=pEOPF.RTY. This leasehold
shall not be severable from the ownership interests of Lessee's Property and the covenants,
terms and conditions under this Agreement shall be binding upon and inure to the benefit of
the owners and subsequent owners of Lessee's Property.
Page 2
II. TERM
The term of this Lease Agreement shall be for a period of 30 years, commencing on
the I" day of December, 2005 and continuing through the 30th day of November, 2040,
unless earlier terminated under the provisions of the Lease Agreement (the "Lease Term').
Lessee has the option to renew for 2 additional 10 year terns by giving at least 180 day
advance notice before the end of the Lease Term or the first 10 year option period, as the
case may be. The rental and terms to be negotiated shall be reasonable and consistent with
the then value,rentals and terms of similar property in downtown Denton.
III. PAYME=S, RF.NTAT S AND FEES
Lessee covenants and agrees to pay Lessor, as consideration for this Lease
Agreement, the following payments,rentals and fees:
A. LAND RENTAT.shall be due and payable in the sum of$ 11.00 per square foot or
$1,364 per year (the "Original Rent"), payable annually in advance, with the first payment
on the Effective Date and each subsequent payment on the same day of each year during the
term of this Lease Agreement. The first payment is based on the estimated square footage
of the Leased Premises shown on Attachment "A". After the survey is completed and
attached hereto as Attachment `B" the rent will be adjusted based on the actual square
footage shown on the survey retroactively to the first lease payment.
B. PAYMENT, PENALTY, ADJ„iSTMF.NTq. All payments due Lessor from Lessee
shall be made to Lessor at the offices of the Director of Economic Development as provided
in XII.D below, unless otherwise designated in writing by the Lessor. If a payment is not
received on or before the 15th day after the due date, a five percent(5%)penalty will be due
as of the 16th day. An additional penalty of one percent (1%) of the unpaid rental amount
will be due for each 30 day period thereafter that the payment is delinquent until the unpaid
rental payment is made. The Original Rent for the Leased Premises shall be readjusted at
the end of every other one year period during the Lease Term beginning December 8, 2008
on the basis of the then current United States Consumer Price Index for all urban consumers
(CPI-U) for the Dallas-Fort Worth Bureau of Labor Statistics.
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.
Page 3
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.
Should any taxes be levied against the Leased Premises or the Improvements.
payment of such taxes shall be the responsibility of the Lessee.
N. RIGHTS AND nFIUGATI,O-NS OF I RgSF.F.
A. I ISR OF LEASED PREMISES. Lessee's use of the Leased Premises is limited
solely to the construction,maintenance and use of the Improvements shown on the Site Plan
and As-Built Plans in conjunction with Lessee's Property, unless Lessor gives its advance
written approval to the contrary.
B. STANDARDS Lessee shall meet or exceed the following standards:
1. Address_ Lessee shall file with the City Manager, or his designee and keep
current its mailing addresses, telephone numbers and contacts where it can be
reached in an emergency.
2. List. Lessee shall file with the City Manager, or his designee and keep current
a list of its tenants and sublessees.
3. C'nndnrt. 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.
Page 4
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 Leased Premises. Lessee shall be responsible for the
maintenance, repair and upkeep of the Improvements, including the mowing
and maintenance of grass, other vegetation and landscaping 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.
7. TTnanthori7ed rise of T,P.nsed 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.
S. Chjit 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 with the Porch being removed.
9. Indemni Lessee shall 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
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 shall 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.
ANT) PROTF.CI THF. IRS SOR FROM THE CONS,-EQITFNC`.FS C)F THE
Page 5
T,ESSOR'S OWN NEGLIGENCE WHILE LESSOR„IS PARTICIPATING
IN TENS_TEASE_ AGREEMENT WHERE. THAT NF,GUGF.NCF, IS LA
CONCURRING CAUSE OF THE INTTTRY,,,,,DFATH, OR DAMAGE
NOTWTTHSTANDMG THE TERMS OE THE PRECEDING
SENTENCES, THIS INDEMNITY J?R MdSION DOES NOT APPI Y-T
ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, S1111 AND
LIABILITY WHERE THE INTTTRY, DEATH-,DR DAMAGE R EST JUS
FROM THE SOLF. NE,GLTGE.NCEE, OF THE,,,LESSOR OR ANY OF TES
EMPLOYEES, CMM A C:TOR S, OR A GFNTS, UNMIXED WITH THE
FAT ITT OF ANY OTHER PERSON OR FNTTTY
C.SIGNS. No signs, posters, or other similar devices ("Signage") shall be placed on
the exterior of the Improvements or on any portion of the Leased Premises 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. If Lessee fails to remove the Signage within 90 days after termination,
then the Lessor may do so at the expense of the Lessee. Lessee shall pay Lessor such costs
of removal within 30 days after receipt of an invoice from the Lessor. If the invoice is not
paid within said time period a lien is hereby established against Lessee's Property to secure
payment. In such case Lessor is authorized to file an affidavit in the Denton County Real
Property Records against Lessee's Property to evidence the lien.
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, and performing any work, which Lessor
elects to perform under this Lease Agreement. 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.
V. COVENANTS BY LESSOR
Lessor hereby agrees as follows:
P-EACEFT TL ENTOYME,NT. Upon 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.
Notwithstanding the forgoing, the parties understand that the Leased Premises constitute
street right-of-way. In that regard, Lessor shall not be liable to Lessee in the event a court of
competent jurisdiction enjoins Lessee from using the Leased Premises under this Lease
Agreement. In such case Lessee's sole remedy will be termination of the Lease Agreement.
Page 6
VI. EMMLEMFMS
Except as otherwise provided in this Lease Agreement, the Improvements constructed
upon the Leased Premises by Lessee, except for the sidewalk, shall remain the property of
Lessee during the Lease Term,or any extension thereof, subject to the following conditions,
terms and provisions: No Improvments may be removed from the Leased Premises,
without the written approval of Lessor. The Porch shall be removed from the Leased
Premises at Lessee's sole cost at the end of the Lease Term, or any extension thereof or
upon termination of this Lease Agreement.
VII. STTRROGATION OE TAORMAGE
Any person, corporation or institution that lends money to Lessee for construction
of the Improvements and retains a security interest Improvements shall, upon default of
Lessee's obligations to said mortgagee, have the right to enter upon the Leased Premises
and operate or maintain the 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, or any
extension thereof. 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, and does not
include the sidewalk or other public improvements constructed by Lessee.
VIII. ASSTGNMF.NT OF T.FASF.
Lessee expressly covenants that it will not assign this Lease Agreement in whole or in
part without the written consent of Lessor, which consent will not be unreasonably
withheld.
IX. 1NST JRANC'F
A. R FO LMFD INST TR ANC E: Lessee shall maintain continuously in effect at all
times during the Lease Term or any extension thereof, at Lessee's sole expense, the
following minimum insurance coverages:
1. Comprehensive Commercial (Public) General Liability covering the Lessee and its
company, its employees, agents, tenants, customers, invitees and independent
contractors. Coverage shall be in an amount not less than $1,000,000 per
occurrence and provide coverage for premises/operations, products/completed
operations and contractual liability.'
2. All risk property insurance on a replacement cost basis covering loss or damage to
the Improvements. Under no circumstances shall the Lessor be liable for any
damages to fixtures, merchandise or other personal property of the Lessee or its
tenants,including the Improvements.
Page 7
B. COVFR AGE RF.CN]TRFMF.NTS: 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 additional named insureds 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 parry 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 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.
X. CANCELLATION BY LF,SSCIR
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.
XI. CANCELLATION By LESSEE
Lessee may cancel this Lease Agreement, in whole or part, and terminate all or any of
its obligations hereunder at any time, by thirty (30) days written notice, upon or after the
Page 8
happening of any one of the following events: (1) issuance by any court of competent juris-
diction of a permanent injunction in preventing or restraining its use of the Leased Premises
or any part thereof for authorized purposes; or (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.
Upon the happening of any of the events listed in the preceding paragraph, such that
the Leased Premises,then the Lessee may cancel this Lease Agreement as aforesaid.
M MTSCET.T.AN 01IS PROVISIONS
A. ENTIRF ACTRREMENT. This Lease Agreement constitutes the entire
understanding between the parties and as of its Effective Date supersedes ali 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. RDMINCT EFFECT_. All covenants, stipulations and agreements herein shall
extend to, bind and inure to the benefit of the legal representatives, successors and assigns
of the respective parties hereto.
C. SF.VFR ARTI,TTY. 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. NOI CE. 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:
Linda Ratliff
Director of Economic Development
City of Denton
101 South Locust, Suite 500
Denton,Texas 76201
Fax No. 940.349.8518
2. If to Lessee, addressed to:
John Eric Schmitz
P.O.Box 729
Argyle,Texas 76226
Fax No. 940-382-9932
Page 9
I
E. HEADINGS. The headings used in this Lease Agreement are intended for
convenience of reference only and do not define or limit the scope or meaning of any
provision of this Agreement.
F. GOVERNING LAW W ANTS VENT TR. 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
BY:
MICHAEL A.CONDUFF,CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY:
zi,BY: ~
ERI CHMITZ
Page 10
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 the ff day of , 2005 by
John Eric Schmitz.
CHRISTINE A:DICK NOTARY PUBLIC, STATE OF TEXAS
Notary Publk
State of Texas
Comm.UP.3.2-2009
Page 11
y ~
Attachment A
ALL that certain lot, parcel, or tract of land situated in the W. NEILL SURVEY, ABSTRACT NUMBER 971, City of
Denton, Denton County,Texas, and being the West one-half of Lot 1, Block 2 of the Original Town of Denton,
Texas, and being more particularly described as follows:
BEGINNING at a building corner found at the intersection of the South line of an asphalt road under apparent
public use posed as Hickory Street and the East line of an asphalt road under apparent public posted as Cedar
Street, for the Northwest corner of the herein described tract;
THENCE North 89 degrees 55 minutes 28 seconds East with the South line of Said Hickory Street a distance of
30.01 feet to a building corner found for the Northeast corner of the herein described tract;
THENCE South 00 degrees 02 minutes 33 seconds East with the West line of the East one-half of said Lot 1 a
distance of 120.18 feet to a building corner found for Southeast corner of the herein described tract;
THENCE South 89 degrees 47 minutes 34 seconds West with the North line of an asphalt road under apparent
public use posed as Walnut Street a distance of 30.09 feet to a building corner found for the Southwest corner of
the herein described tract;
THENCE NORTH with the East line of said Cedar Street a distance of 120.25 feet to the POINT OF BEGINNING
and enclosing 0.08 acres of land, more or less.
Attachment B
HICKORY STREET
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LEGEND
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Proposed Lease Area
1 ,I? (Approximately 1,234 sq. ft.)
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Attachment C
On or before 30 days after the Effective Date, Lessee shall deliver to Lessor a survey and
metes and bounds description of the Leased Premises which will be attached hereto as
Attachment"C".
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AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Planning and Development
ACM: Howard Martin, 349-8232
SUBJECT- V05-0022 (Klement Laundry, Spring Brook PlanningGronp)
Consider approving an exaction variance of Section 35.203.B of the Denton Development
Code concerning sidewalks. The approximately 035 acres of property is generally located
at the northeast corner of McKinney Street and Wood Street intersection. The Planning
and Zoning Commission recommends approval (6-0).
BACKGROUND
Spring Brook Planning Group applied for a variance of Section 35.203.B of the Denton
Development Code and the Transportation Criteria Manual concerning sidewalks along
Main Street Mixed Use Collector. The applicant is requesting a variance to reduce the
width of the new sidewalk along Wood Street from eight feet to five feet.
The Denton Development Code (DDC) requires sidewalks as follows: "All developments
shall, within a dedicated right of way or easement, provide sidewalks and/or
Pedestrian/Bicycle facilities designed and located in accordance with the Transportation
Criteria Manual and street classification along both sides of all streets within the
development. " (35.203.B) Additionally the DDC further supports Pedestrian/Bicycle
Facilities in Section 35.203.A3.
The Criteria Manual requires the following Geometric Standard:
70' MIN
C' 4TN. ROW C,' MIN.
PARKWAY PARBKINGC LRA RING PAR WAY
COMBINATION PEDESTPIAN 39' (BACK EF CURB) C[IMBINATI[I 8 PEDESTRIAN
6 BICYCLE FACILITY & BICYCLE FACILITY
Figure I-1-A-15, Main Street Mixed Use Collector Section
The Commission may recommend that this exaction variance be approved by the City
Council if the following criteria is met:
Sec. 34-6.(b) Criteria for variances from development exactions. Where the
commission finds that the imposition of any development exaction pursuant to
these regulations exceeds any reasonable benefit to the property owner or is so
excessive as to constitute confiscation of the tract to be platted, it may recommend
approval of variances to waive such exaction's, so as to prevent such excess, to
I
the City Council. Waiver of development exactions shall be approved by the City
Council.
The price the applicant(s) paid for the parcel, or the cost of the proposed building
improvements is not a factor in determining reasonable costs. The question is, are the costs
associated with the public improvement reasonable and consistent with the type of
development proposed and the demand for services created by the development?
Applicant presented the variance request to the Planning and Zoning Commission along
with two other variances and a Plat Vacation for the project. The Planning and Zoning
Commission approved the Plat Vacation (6-0).
RECOMMENDATION
Planning and Zoning Commission recommends approval to the City Council regarding
an exaction variance of Section 35.20.3.B of the Denton Development Code concerning
sidewalks (6-0).
ATTACHMENTS
1. Location Maps
2. Applicant Letter
3. Planning and Zoning Commission Minutes
Respectfully submitted:
f '�
Kelly Carpenter, AICP
Planning and Development Director
Prepared by:
David Speicher
Development Review Administrator
2
ATTACHMENT I
Location Maps
3
ATTACHMENT 2
Applicant Letter
WOOK
W;Spru
September 7, 2005
Wood Street sidewalk variance(exaction variance)_.- The request is to reduce the width
of new sidewalk along Wood Street from 8'(required)to 5'. The 8'width is a function of the
road classification. Sidewalks along collectors are 8'wide because they are intended to be
shared by both pedestrians and bicyclists. The classification of Wood Street as a collector,
simply because the two corner lots are required to take access to the street fails to
consider how the street actually functions. Simply stated, it functions as a local residential
street. Currently, there are no sidewalks on the east side of Wood Street between
McKinney and Davis, with the exception of the recently constructed 5' wide section
mentioned above. If a 5' wide section is sufficient for a city project, it should also be
sufficient for a private developer.
In summary, I realize that it appears that were requesting special consideration for this site,
but the Development Code is not setup for infill development. Each site must be analyzed
on its own merits and the impact the existing regulations have on the potential
development of the site. Until the code is revised, some common sense needs to prevail if
quality infill development is to take place.
Thank you in advance for your time and efforts. If you have any questions please do not
hesitate to contact me.
Larry eichhart, ASLA, AJCP
Spring Brook Planning Group
4
ATTACHMENT 3 CondenseItrM
Page 85 Page 87
1 COMMISSIONER STRANGE: we'll now move onto 1 Staff recommendation is approval to the request based on
2 Item E,the rezoning of approximately 0.17 acres of land, 2 the following findings: The proposed zoning is necessary
3 a portion of Lot 16R,Block 1,College View Addition from 3 for reasonable use of the property,the proposed zoning
4 a Neighbhorhood Residential NR-4 zoning district to a 4 and the use is compatible with the surrounding
5 Neighbhorhood Residential Mixed Use zoning district. Ms. 5 neighborhood. The proposed zoning change is compatible
6 Chewle. 6 with the City of Denton plan and Denton Development Code.
7 MS.CHEWLE: Good evening,Commissioners. 7 If you have any questions,I'll take them now.
8 The applicant for this project is Springbrook Planning 8 COMMISSIONER STRANGE: Mr.Roy.
9 Group,Grapevine,Texas. The applicant is requesting to 9 COMMISSIONER ROY: You indicate there are
10 rezone the northern portion of Lot--of Lot 16R of the 10 two properties within the 200 foot limit,do you have an
11 College View Addition which is approximately 0.17 acres 11 approximate percentage that you can share with us?
12 from a Neighborhood Residential 4 zoning district to a 12 MS,CHEWLE: Yes,it's .95.
13 Neighborhood Residential Mixed Use zoning district. The 13 COMMISSIONER ROY: .95?
14 applicant wishes to build a laundry on the subject 14 MS.CHEWLE: Right.
15 property. 15 COMMISSIONER ROY: Thank you.
16 Public notification information was 16 COMMISSIONER STRANGE: Any other questions
17 provided in your backup. As of this writing staff has 17 of staff?
18 received two responses in opposition to the request within l8 MS.CHEWLE: or maybe 9.5.
19 the 200 feet subject--of the subject property. 19 MR.REICHHART: 9.5.
20 The subject property is platted but 20 MS.CHEWLE: It doesn't look like.95.
21 currently vacant, A plat vacation is on our Agenda today. 21 COMMISSIONER STRANGE: All right. Okay.We
22 If the plat vacation is approved an amending or a replat 22 will--no other questions of staff,we will open the
23 shall be required in the future. The north and the south 23 public hearing. Is the applicant here and do they wish to
24 uses --the north and the south uses are Neighborhood 24 speak?
25 Residential NR-4 which consists of single family houses. 25 MR,REICHHART: Yes,I am here. I do have
Page 86 Page 88
1 The properties to the east and the west are 1 a presentation but I don't know how--any more
2 zoned as Neighborhood Residential NR-4 and NRMU,which has 2 information you would get--I'm sorry. My name is Larry
3 single family and commercial uses. This is--this is the 3 Reichhart,Springbrook Planning Group,Grapevine,Texas
4 northern--this is one--one lot, 16R,but this portion 4 76051. We are looking to rezone the northern--what was
5 of the lot is zoned NR-4 and the--and once it's rezoned 5 at one time the northern 50 foot of this property. That
6 to NRMV,this is how--what it's going to look like. 6 constitutes of the lot that we're looking at right now,a
7 The proposed use is compatible with the 7 little less than 50 percent of the total lot.
8 existing neighborhood and the intent of the Development 8 I found it interesting that the Northstar
9 Code. Access to the subject site is from--excuse me, 9 bank folks said how difficult it was to develop,you know
10 from McKinney and Wood Street. McKinney is classified as 10 a lot that was a little under an acre. Try to do one
11 a primary major arterial and Wood Street is classified as 11 that's about a third of an acre, It is extremely
12 a local street. 12 difficult as you'll see in our other applications. So we
13 Public utilities are available to serve the 13 are respectfully requesting that the northern 50 foot be
14 site. The comparison--the comparison between the 14 rezoned to NRMU, we do think it is compatible. It is
15 permitted NR-4 and NRMU zoning districts are provided in 15 necessary for any development to take place on this
16 your backups. Laundry facility is an allowed use in an 16 property. And I'd be happy to answer any questions that
17 NRMO zoning district. In the--NRMt7 zoning districts 17 you have.
18 provide some commercial uses but mostly with limitations. 18 COMMISSIONER STRANGE: Any questions of the
19 The subject property has two zoning 19 applicant? Mr.Roy.
20 district classifications,NR-4 and NRMV. The NRMU 20 COMMISSIONER ROY: There was a basic
21 district only allows single family uses whereas NRMU 21 question that we brought up with staff earlier about
22 zoning district does not allow any single family use. 22 acting on this particular issue. I noticed that we've got
23 The portion of the property zoned NRMU 23 several other issues to discuss on this property.
24 District does not have a reasonable use of the land 24 MR.REICHHART: Regardless of those other
25 without the rezoning of the subject property to the north. 25 issues,we would like to get this property rezoned. I
PLANNING AND ZONING MINUTES OCTOBER 12, 2005 Page 85 - Page 88
CondenseltTM
Page 89 Page 91
1 mean,for anything to be developed on this property,at-- 1
2 this rear portion needs to be rezoned regardless of what 2
3 happens with the other cases. 3
4 COMMISSIONER ROY: Thank you. 4
5 COMMISSIONER STRANGE: Any other questions 5
6 of the applicant? Thank you,Mr.Reichhart. Is there 6
7 anyone else here who wishes to speak in favor of this 7
8 item? Is there anyone who wishes to speak in opposition 8
9 to this item? Seeing none,we will close the public 9
10 hearing. Do we have a motion? 10
11 COMMISSIONER HOLT: so moved--move 11
12 approval. 12
13 COMMISSIONER sTRANGE: we have a motion 13
14 from Mrs.Holt. Do we have a second? 14
15 COMMISSIONER THIBODEAUX: Second. 15
16 COMMISSIONER STRANGE: Second by Dr. 16
17 Thibodeaux. Any discussion? Please,vote. Motion passes 17
18 6-0. 18
19 19
20 20
21 21
22 22
23 23
24 24
25 25
Page 90 Page 92
1 1
2 2
3 3
4 4
5 5
6 6
7 7
8 8
9 9
10 10
11 11
12 12
13 13
14 14
15 15
16 16
17 17
18 18
19 19
20 20
21 21
22 22
23 23
24 24
25 25
PLANNING AND ZONING MINUTES OCTOBER 12, 2005 Page 89 - Page 92
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Planning and Development
ACM: Howard Martin, 349-8232
SUBJECT V05-0023 (Spring Brook Planning Group)
Consider a variance of Section 35.20.2.L.2 of the Denton Development Code concerning
perimeter streets along McKinney Street. The approximately 035 acres of property is
generally located at the northeast corner of McKinney Street and Wood Street intersection.
The Planning and Zoning Commission recommends approval (6-0).
BACKGROUND
Spring Brook Planning Group applied for a variance of Section 35.20.2.L.2 of the Denton
Development Code and the Transportation Criteria Manual concerning perimeter street
dedication along Primary Arterial. The applicant is requesting a variance to reduce the
ROW dedication along McKinney Street from 34.12 feet to 22.86 feet.
The subject site is approximately 035 acres
and is generally located at the northeast , ; F `
corner of McKinney Street and Wood Street f
intersection. The applicant wishes to build a t
1
Laundry on the subject property. The ' "Y
applicant has also requested for a plat ) ,
vacation, if the plat vacation is approved it
will revert to the plat approved in 1925.
The Development Code requires new
f
perimeter streets as follows. "If an arterial ; � � •�
or collector street is proposed by the °
mobility plan on, near or within the
ornrgBBC
boundary of the development or the
development creates the need for a new Plat approved in 1925
perimeter street, the development shall
provide the portion of the perimeter street including right of way dedication for which it
reasonably creates the need, but in no case shall that portion of the street provided be less
than a pavement width of twenty-five (25) feet plus required bicycle lane in the case of an
arterial. Minimum right of way dedication for new perimeter streets shall be
sufficient to provide the required amount of pavement, the required parkway width for the
street classification as shown in the Transportation Criteria Manual, and an additional five
1
feet to provide for any sloping needed between the pavement and the property line of the
development. All perimeter streets shall be provided with curb and gutter along the side
abutting the development. If the perimeter street is ultimately proposed to serve as a
divided arterial street and the development is required to install half of the arterial street,
then curb and gutter shall be provided on both sides of the perimeter street so as to provide
the curb for the future median of the arterial street."
The Criteria Manual requires the following Geometric Standard:
135' PEW
I10' BE T❑ 3C
C/L C/L 10'
30' MEDIAN MIN
SIDEWALK SIDEWALK
40,
(LANE WIDTHS) (BACK [IF CURB)
Figure I-1-A-23, Primary Arterial Section
The Commission may recommend that this exaction variance be approved by the City
Council if the following criteria is met:
Sec. 34-6.(b) Criteria for variances from development exactions. Where the
commission finds that the imposition of any development exaction pursuant to
these regulations exceeds any reasonable benefit to the property owner or is so
excessive as to constitute confiscation of the tract to be platted, it may recommend
approval of variances to waive such exaction's, so as to prevent such excess, to
the City Council. Waiver of development exactions shall be approved by the City
Council.
The price the applicant(s) paid for the parcel, or the cost of the proposed building
improvements is not a factor in determining reasonable costs. The question is, are the costs
associated with the public improvement reasonable and consistent with the type of
development proposed and the demand for services created by the development?
Applicant presented the variance request to the Planning and Zoning Commission along
with two other variances and a Plat Vacation for the project. The Planning and Zoning
Commission approved the Plat Vacation (6-0).
2
RECOMMENDATION
Planning and Zoning Commission recommends approval to the City Council regarding
a variance of Section 35.20.2.L.2 of the Denton Development Code concerning perimeter
streets along McKinney Street. (6-0).
ATTACHMENTS
1. Location Maps
2. Amending Final Plat/Exhibit C
3. Applicant Letter/Exhibit D
4. Planning and Zoning Commission Minutes
Respectfully submitted:
Kelly Carpenter, AICP
Planning and Development Director
Prepared by:
David Speicher
Development Review Administrator
3
ATTACHMENT I
Location Maps
3
ATTACHMENT 2
Amending Final Plat
EXHIBIT C
1/2'IRF 1/2" IRF
IRF/CAP 111F/CAP
Lot 17, int 4
1_ .
'IRS r S 39'35'25"E 142:96' J /CAP
S t�C1'C35 i� W
Lb 50.00
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V,44-e 864,P.qe-977
' a'P.U,E._. Lot 3
i t F/ ��, TflTA 11,493 ACRE sLO:I< �
North Wood Street _.
z8.0' Aspt,clt (5,0' ROV ' 35. �; LOT. 16R�,: BLOCi{1 �. 1 r%c��
:-t 0) Lot
3 PUE. 20 u. 0 � y
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5 2844 2&2° � a Al,
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;e 24SZ3'
DEDICA71C11t _
(, t. ; il.145-Acre
N 89`15'S5'' 143.0 3 IRS/CAP
McKirine Street
".0 Asp 7¢tt.(105 RO Viv)
5
ATTACHMENT 3
Applicant Letter
1 ►ri g 6k
P group
September 7, 2005
McKinney Street ROW (exaction variance § 35.20.2(A.6.)1: Per IDRC comments
dated 10102/03, (McKinney is classified as a Primary Arterial requiring a minimum half-
section dedication of 67.5 ft. from the centerline of McKinney (a 135" total ROW). TNs
requirement results in a 34.12' dedication from the subject property (Exlhib'it C), or
approximately 23%of the entire site. This section of IMcKinney is controlled by the City
of (Denton. As such, the ultrmate design, alignment and configuration of the ultimate
road lis also controlled by the City. A typical road section for a IPrirnary Arterial (Figure I-
1-A-23, IPr'irmary Arterial Section -Transportation Design Criteria (Manual) lincludes two
40"wide read sections, a 24' wide median, two 10"wide planting strips and two 5' wide
sidewallks for a total of 134'within the requlired 135" ROW. (Please note that the criteria
manual identifies a 30'wide median, but according to a conversation with Bud Vokoun,
that measurement is incorrect) If that section is centered over the existing centerlline of
McKinney the impact along McKinney will be devastating to the majority of residents
and businesses along IMcKinney as lilllustrated below.
Fy
y &
i
6
It is unfikly that this configuration will occurs due to the financial costs of aquidng that
much property. In all likelihood two things will probably happen. (First, the road section
will be modified to reduce the limpact to properties. The median would probably be
reduced from 24'to 14" or possibly 12', and the two 10' pllanting areas would be reduce
to Seach or be eliminated. That would reduce the (ROW by at least 20'. Secondly, the
road would probably be off-set, similar to what's currently being proposed on IMayhill.
Instead of following the existing centerline and impacting both sides of the street, an
analysis of the corridor would be done to determine what side of the street would be
better (and less expensive) to utilize. In all likelihood, the south side of IMclKlinney (at
least in this area) would probably be targeted because it's mostly dingle-famlilly houses
which would cost less to acquire.
We are requesting that the 34.12' ROW dedication be reduced to 22.86' (a reduction of
11.26'). This amount was calculated from the proposed site Ipllan (Exhibit ID). The
proposed building (3,360 sq. ft.) is the smallest building that my client has ever
considered for a laundry facilllity and funcfionallly cannot Ibe reduced. The building
cannot be shifted to the north because the 20' setback(along the north property line) lis
required per code. We considered moving the building south (towards McKinney) and
provide parking behind the building. However, that concept was not pursued because of
potential safety tissues. Safety is a major concern to any business owner, but especially
for a laundry facillity. Glientele typically have cash on them for the coin operated
facilities, and are at a disadvantage, or venerable, when loading and unloading vehicles
(carrying an arm full of clothes). Therefore, it lis extremely limportant that all areas of the
site be visible from the adjacent streets and not tucked away from view. Fina[ly, based
on other laundry operations my client owns and operates, the amount of parking cannot
be reduced. Putting all those factors together results tin a 11.26' intrusion into the
recently dedicated (ROW.
�By reducing the dedication by 11.26', the impact to the site is reduced to 15%, which lis
still a sizaNe impact, but lit does provide the required 20' setback adjacent to a singlle-
family residential use (the property to the north).
If an 11.26' reduction tin ROW is granted, 3 potential scenarios exist if and when
�McKinney is reconstructed. They are:
1. If the road is built in its current a[igniment(following the current centerline), addition
�ROW would have to be acquired only if the current 134' section lis utflized. If the
me6an and planting areas are reduced by 21' to 22', enough ROW would have
been acquired to facilitate the improvements.
2. The alignment is shifted to the south -the city would have additional (ROW along the
frontage of this property.
3. The alignment lis shifted to the north —additional ROW would have to Ibe acquired
from the subject property. However, additional ROW would be required with the
existing 34'of ROW that was dedicated. Either way, if the alignment is shifted to the
north, the city would probably end up condemning the entire property, regardless of
how much ROW is dedicated.
In summary, a 11.26' reduction, lessens the limpact to the site and has little to no effect
on the future redevelopment of(McKinney into a 6 lane primary arterial.
7
In summary, I realize that it appears that were requesting special consideration for this site,
but the(Development Code is not set up for infilll development. Each site must be analyzed
on its own merits and the impact the existing regulations have on the potential development
of the site. Until the code is revised, some common sense needs to prevail if quality Iinfill
development is to take place.
Thank you in advance for your time and efforts. If you have any questions please do not
hesitate to contact me.
/472
arry Re. hart, ASl_A, A___.
Spring Brook Planning Group
s
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ATTACHMENT 4 tM
CondenseIt
Page 85 Page 87
1 COMMISSIONER STRANGE: we'll now move onto 1 Staff recommendation is approval to the request based on
2 Item E,the rezoning of approximately 0.17 acres of land, 2 the following findings: The proposed zoning is necessary
3 a portion of Lot 16R,Block 1,College View Addition from 3 for reasonable use of the property,the proposed zoning
4 a Neighbhorhood Residential NR-4 zoning district to a 4 and the use is compatible with the surrounding
5 Neighbhorhood Residential Mixed Use zoning district. Ms. 5 neighborhood. The proposed zoning change is compatible
6 Chewle. 6 with the City of Denton plan and Denton Development Code.
7 MS.CHEWLE: Good evening,Commissioners. 7 If you have any questions,I'll take them now.
8 The applicant for this project is Springbrook Planning 8 COMMISSIONER STRANGE: Mr.Roy.
9 Group,Grapevine,Texas. The applicant is requesting to 9 COMMISSIONER ROY: You indicate there are
10 rezone the northern portion of Lot--of Lot 16R of the 10 two properties within the 200 foot limit,do you have an
11 College View Addition which is approximately 0.17 acres 11 approximate percentage that you can share with us?
12 from a Neighborhood Residential 4 zoning district to a 12 MS,CHEWLE: Yes,it's .95.
13 Neighborhood Residential Mixed Use zoning district. The 13 COMMISSIONER ROY: .95?
14 applicant wishes to build a laundry on the subject 14 MS.CHEWLE: Right.
15 property. 15 COMMISSIONER ROY: Thank you.
16 Public notification information was 16 COMMISSIONER STRANGE: Any other questions
17 provided in your backup. As of this writing staff has 17 of staff?
18 received two responses in opposition to the request within l8 MS.CHEWLE: or maybe 9.5.
19 the 200 feet subject--of the subject property. 19 MR.REICHHART: 9.5.
20 The subject property is platted but 20 MS.CHEWLE: It doesn't look like.95.
21 currently vacant, A plat vacation is on our Agenda today. 21 COMMISSIONER STRANGE: All right. Okay.We
22 If the plat vacation is approved an amending or a replat 22 will--no other questions of staff,we will open the
23 shall be required in the future. The north and the south 23 public hearing. Is the applicant here and do they wish to
24 uses --the north and the south uses are Neighborhood 24 speak?
25 Residential NR-4 which consists of single family houses. 25 MR,REICHHART: Yes,I am here. I do have
Page 86 Page 88
1 The properties to the east and the west are 1 a presentation but I don't know how--any more
2 zoned as Neighborhood Residential NR-4 and NRMU,which has 2 information you would get--I'm sorry. My name is Larry
3 single family and commercial uses. This is--this is the 3 Reichhart,Springbrook Planning Group,Grapevine,Texas
4 northern--this is one--one lot, 16R,but this portion 4 76051. We are looking to rezone the northern--what was
5 of the lot is zoned NR-4 and the--and once it's rezoned 5 at one time the northern 50 foot of this property. That
6 to NRMV,this is how--what it's going to look like. 6 constitutes of the lot that we're looking at right now,a
7 The proposed use is compatible with the 7 little less than 50 percent of the total lot.
8 existing neighborhood and the intent of the Development 8 I found it interesting that the Northstar
9 Code. Access to the subject site is from--excuse me, 9 bank folks said how difficult it was to develop,you know
10 from McKinney and Wood Street. McKinney is classified as 10 a lot that was a little under an acre. Try to do one
11 a primary major arterial and Wood Street is classified as 11 that's about a third of an acre, It is extremely
12 a local street. 12 difficult as you'll see in our other applications. So we
13 Public utilities are available to serve the 13 are respectfully requesting that the northern 50 foot be
14 site. The comparison--the comparison between the 14 rezoned to NRMU, we do think it is compatible. It is
15 permitted NR-4 and NRMU zoning districts are provided in 15 necessary for any development to take place on this
16 your backups. Laundry facility is an allowed use in an 16 property. And I'd be happy to answer any questions that
17 NRMO zoning district. In the--NRMt7 zoning districts 17 you have.
18 provide some commercial uses but mostly with limitations. 18 COMMISSIONER STRANGE: Any questions of the
19 The subject property has two zoning 19 applicant? Mr.Roy.
20 district classifications,NR-4 and NRMV. The NRMU 20 COMMISSIONER ROY: There was a basic
21 district only allows single family uses whereas NRMU 21 question that we brought up with staff earlier about
22 zoning district does not allow any single family use. 22 acting on this particular issue. I noticed that we've got
23 The portion of the property zoned NRMU 23 several other issues to discuss on this property.
24 District does not have a reasonable use of the land 24 MR.REICHHART: Regardless of those other
25 without the rezoning of the subject property to the north. 25 issues,we would like to get this property rezoned. I
PLANNING AND ZONING MINUTES OCTOBER 12, 2005 Page 85 - Page 88
CondenseltTM
Page 89 Page 91
1 mean,for anything to be developed on this property,at-- 1
2 this rear portion needs to be rezoned regardless of what 2
3 happens with the other cases. 3
4 COMMISSIONER ROY: Thank you. 4
5 COMMISSIONER STRANGE: Any other questions 5
6 of the applicant? Thank you,Mr.Reichhart. Is there 6
7 anyone else here who wishes to speak in favor of this 7
8 item? Is there anyone who wishes to speak in opposition 8
9 to this item? Seeing none,we will close the public 9
10 hearing. Do we have a motion? 10
11 COMMISSIONER HOLT: so moved--move 11
12 approval. 12
13 COMMISSIONER sTRANGE: we have a motion 13
14 from Mrs.Holt. Do we have a second? 14
15 COMMISSIONER THIBODEAUX: Second. 15
16 COMMISSIONER STRANGE: Second by Dr. 16
17 Thibodeaux. Any discussion? Please,vote. Motion passes 17
18 6-0. 18
19 19
20 20
21 21
22 22
23 23
24 24
25 25
Page 90 Page 92
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PLANNING AND ZONING MINUTES OCTOBER 12, 2005 Page 89 - Page 92
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Planning and Development
ACM: Howard Martin, 349-8232
SUBJECT V05-0024 (Spring Brook Planning Group)
Consider a variance of Section 35.20.2.L.2 of the Denton Development Code concerning
perimeter streets along Wood Street. The approximately 035 acres of property is generally
located at the northeast corner of McKinney Street and Wood Street intersection. The
Planning and Zoning Commission recommends approval (6-0).
BACKGROUND
Spring Brook Planning Group applied for a variance of Section 35.20.2.L.2 of the Denton
Development Code and the Transportation Criteria Manual concerning perimeter street
dedication along Main Street Mixed Use Collector. The applicant is requesting a variance
to reduce the ROW dedication along Wood 11.49 feet to 8.9 feet.
The subject site is approximately 035 acres and is generally located at the northeast corner
of McKinney Street and Wood Street intersection. The applicant wishes to build a
Laundry on the subject property. The applicant has also requested for a plat vacation, if the
plat vacation is approved it will revert to the plat approved in 1925.
The Development Code requires new y r
perimeter streets as follows. "If an arterial
or collector street is proposed by the
mobility plan on, near or within the t .
boundary of the development or the
development creates the need for a new
perimeter street, the development shall '
provide the portion of the perimeter street ���
including right of way dedication for which
it reasonably creates the need, but in no case ' 1
,
shall that portion of the street provided be
less than a pavement width of twenty-five � s °
(25) feet plus required bicycle lane in the E, o' $ . 'R
case of an arterial. Minimum right of way
dedication for new perimeter streets shall be Plat approved in 1925
sufficient to provide the required amount of
pavement, the required parkway width for the street classification as shown in the
Transportation Criteria Manual, and an additional five feet to provide for any sloping
needed between the pavement and the property line of the development. All perimeter
streets shall be provided with curb and gutter along the side abutting the development. If
the perimeter street is ultimately proposed to serve as a divided arterial street and the
development is required to install half of the arterial street, then curb and gutter shall be
provided on both sides of the perimeter street so as to provide the curb for the future
median of the arterial street."
1
The Criteria Manual requires the following Geometric Standard:
B' SIDEWALK
BACK OF CURB 6' MIN. PARKWAY
8' PARKING
8' PARKING
BACK ❑F CURB 6' MIN. PARKWAY
8' SIDEWALK
ROW
Figure 1-1-A-16, Main Street Mixed Use Collector Plan Views
The Commission may recommend that this exaction variance be approved by the City
Council if the following criteria is met:
Sec. 34-6.(b) Criteria for variances from development exactions. Where the
commission finds that the imposition of any development exaction pursuant to these
regulations exceeds any reasonable benefit to the property owner or is so excessive
as to constitute confiscation of the tract to be platted, it may recommend approval of
variances to waive such exaction's, so as to prevent such excess, to the City Council.
Waiver of development exactions shall be approved by the City Council.
The price the applicant(s) paid for the parcel, or the cost of the proposed building
improvements is not a factor in determining reasonable costs. The question is, are the costs
associated with the public improvement reasonable and consistent with the type of
development proposed and the demand for services created by the development?
RECOMMENDATION
Planning and Zoning Commission recommends approval to the City Council regarding
a variance of Section 35.20.2.L.2 of the Denton Development Code concerning perimeter
streets along Wood Street(6-0).
ATTACHMENTS
1. Location Maps
2. Amending Final Plat/Exhibit C
3. Applicant Letter/Exhibit D
4. Planning and Zoning Commission Minutes
Respectfully submitted:
Kelly Carpenter, AICP
Planning and Development Director
Prepared by:
David Speicher
Development Review Administrator
2
ATTACHMENT I
Location Maps
3
ATTACHMENT 2
Amending Final Plat
EXHIBIT C
1/2'IRF 1/2" IRF
IRF/CAP 111F/CAP
Lot 17, int 4
1_ .
'IRS r S 39'35'25"E 142:96' J /CAP
S t�C1'C35 i� W
Lb 50.00
F>� Lk -' to Jockey Dde Q.4dol
V,44-e 864,P.qe-977
' a'P.U,E._. Lot 3
i t F/ ��, TflTA 11,493 ACRE sLO:I< �
North Wood Street _.
z8.0' Aspt,clt (5,0' ROV ' 35. �; LOT. 16R�,: BLOCi{1 �. 1 r%c��
:-t 0) Lot
3 PUE. 20 u. 0 � y
�.1 RF y - _Z177—
5 2844 2&2° � a Al,
�, "E
tL' ;
=K
r GAT' gat L10t 1
` R.C'1.4Y. 8'P'.7AE� ..;; ' .....
e 24SZ3'
DEDICA71C11t _
(, t. ; il.145-Acre
N 89`15'S5'' 143.0 3 IRS/CAP
McKirine Street
".0 Asp 7¢tt.(105 RO Viv)
5
ATTACHMENT 3
Applicant Letter
ok
.0.-I"g grgup
September 7, 2005
Woad Street ROW (exaction variance-§ 35.20.2(A.4.)): Per DRC comments dated
10/02/03,Wood Street meets the standards for an existing collector street and requires
a minimum half-section dedication of 35'from the centerline of Wood (a 70'total (ROW).
In combination with the (McKinney Street ROW requirements, a total of 30.3% of the
site would be dedicated as ROW. Although Woad Street does meet the majority of
standards for a collector street it truly does not function as a coillector. (Besides the two
commercial properties on the corners, the remaining properties to the north are single-
family residences. Additionally, the application of the definition does not take infilll
development into consideration. This is the same problem that the Ibank on the corners
of Carroll, Westgate, Anne & Sunset had as will any commercial development on a
corner near an existing neighborhood. When the site is developed, code requires that
access be from the lesser classified read,which then triggers that road into becoming a
collector, by definition (Catch 22?). It is unlikely that Wood Street will ever be
redeveioped by the city to the standards of a collector. Wood Street is currently a 50'
wide ROW and as mentioned above, mostly single-family. The main reason I believe
that Wood Street will not be redesigned is again, the cast (bath financially and
politically)of acquiring the additional ROW needed (approximately 10'on both sides of
the street). Additionally, if the city had any intentions of redeveiopling Wood Street as a
collector, the sidewalk return that was recently built along Wood St. (part of the
McKinney Street sidewalk project) would have been 8'wide (as required per cede) not
the 5" width that was built.
Although no ROW dedication wound allow the most flexibility for designing the site,
reducing the required 11.49' to 8.9' (see (Exhibit ID) wound allow for more efficient
parking on site and provide roam for a decorative screen fence between the parking and
the ROW.
In summary, I realize that it appears that were requesting special consideration for this site,
but the(Development Cade is not set up for infilll development. Each site must be analyzed
on its own merits and the limpact the existing regulations have on the potential development
of the site. Until the cede is revised, some common sense needs to prevail if quaVlity linfill
development is to take place.
Thank you in advance for your time and efforts. If you have any questions please do not
hesitate to contact me.
arry Re' hart, ASIA, A
Spring Brook Pianning Group
6
Exhibit
Lot I
,•1
I 'to
E
3
3
A :,
J TO
- -
5a i=T
LL
E -•
' .rah
a VvIg
a �.
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o
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ee��
,w®
m
�4 4'As pku Il
SrM®�
I
sip' WOOD STRM
TX R
7
ATTACHMENT 4 CondenseIt"m
Page 85 Page 87
1 COMMISSIONER STRANGE: we'll now move onto 1 Staff recommendation is approval to the request based on
2 Item E,the rezoning of approximately 0.17 acres of land, 2 the following findings: The proposed zoning is necessary
3 a portion of Lot 16R,Block 1,College View Addition from 3 for reasonable use of the property,the proposed zoning
4 a Neighbhorhood Residential NR-4 zoning district to a 4 and the use is compatible with the surrounding
5 Neighbhorhood Residential Mixed Use zoning district. Ms. 5 neighborhood. The proposed zoning change is compatible
6 Chewle. 6 with the City of Denton plan and Denton Development Code.
7 MS.CHEWLE: Good evening,Commissioners. 7 If you have any questions,I'll take them now.
8 The applicant for this project is Springbrook Planning 8 COMMISSIONER STRANGE: Mr.Roy.
9 Group,Grapevine,Texas. The applicant is requesting to 9 COMMISSIONER ROY: You indicate there are
10 rezone the northern portion of Lot--of Lot 16R of the 10 two properties within the 200 foot limit,do you have an
1 I College View Addition which is approximately 0.17 acres 11 approximate percentage that you can share with us?
12 from a Neighborhood Residential 4 zoning district to a 12 MS.CHEWLE: Yes,it's .95.
13 Neighborhood Residential Mixed Use zoning district, The 13 COMMISSIONER ROY: .95?
14 applicant wishes to build a laundry on the subject 14 MS.CHEWLE: Right.
15 property. 15 COMMISSIONER ROY: Thank you.
16 Public notification information was 16 COMMISSIONER STRANGE: Any other questions
17 provided in your backup. As of this writing staff has 17 of staff?
18 received two responses in opposition to the request within 18 Ms.cHEwLE: or maybe 9.5.
19 the 200 feet subject--of the subject property. 19 MR.REICHHART: 9.5.
20 The subject property is platted but 20 MS.CHEWLE: It doesn't look like.95.
21 currently vacant. A plat vacation is on our Agenda today. 21 COMMISSIONER STRANGE: All right. Okay.We
22 If the plat vacation is approved an amending or a replat 22 will--no other questions of staff,we will open the
23 shall be required in the future. The north and the south 23 public hearing, Is the applicant here and do they wish to
24 uses --the north and the south uses are Neighborhood 24 speak?
25 Residential NR-4 which consists of single family houses. 25 MR,REICHHART: Yes,I am here. I do have
Page 86 Page 88
1 The properties to the east and the West are 1 a presentation but I don't know how--any more
2 zoned as Neighborhood Residential NR-4 and NRMU,which has 2 information you would get--I'm sorry. My name is Larry
3 single family and commercial uses. This is--this is the 3 Reichhart,Springbrook Planning Group,Grapevine,Texas
4 northern--this is one one lot, 16R,but this portion 4 76051. We are looking to rezone the northern--what was
5 of the lot is zoned NR-4 and the--and once it's rezoned 5 at one time the northern 50 foot of this property. That
6 to NRMLI,this is how--what it's going to look like. 6 constitutes of the lot that we're looking at right now,a
7 The proposed use is compatible with the 7 little less than 50 percent of the total lot.
8 existing neighborhood and the intent of the Development 8 I found it interesting that the Northstar
9 Code. Access to the subject site is from--excuse me, 9 bank folks said how difficult it was to develop,you know
10 from McKinney and Wood Street. McKinney is classified as 10 a lot that was a little under an acre. Try to do one
11 a primary major arterial and Wood Street is classified as 11 that's about a third of an acre. It is extremely
12 a local street. 12 difficult as you'll see in our other applications. So we
13 Public utilities are available to serve the 13 are respectfully requesting that the northern 50 foot be
14 site. The comparison--the comparison between the 14 rezoned to NRMU. we do think it is compatible. It is
15 permitted NR-4 and NRMU zoning districts are provided in 15 necessary for any development to take place on this
16 your backups. Laundry facility is an allowed use in an 16 property. And I'd be happy to answer any questions that
17 NRMU zoning district. In the--NRMu zoning districts 17 you have.
18 provide some commercial uses but mostly with limitations. 18 COMMISSIONER STRANGE: Any questions of the
19 The subject property has two zoning 19 applicant? Mr.Roy.
20 district classifications,NR-4 and NRMu. The NRMU 20 COMMISSIONER ROY: There was a basic
21 district only allows single family uses whereas NRMU 21 question that we brought up with staff earlier about
22 zoning district does not allow any single family use. 22 acting on this particular issue. I noticed that we've got
23 The portion of the property zoned NRMU 23 several other issues to discuss on this property.
24 District does not have a reasonable use of the land 24 MR,REICHHART: Regardless of those other
25 without the rezoning of the subject property to the north. 25 issues,we would like to get this property rezoned. I
PLANNING AND ZONING MINUTES OCTOBER 12, 2005 Page 85 - Page 88
CondenseItTM
Page 89 Page 91
1 mean,for anything to be developed on this property,at-- 1
2 this rear portion needs to be rezoned regardless of what 2
3 happens with the other cases. 3
4 COMMISSIONER ROY: Thank you. 4
5 COMMISSIONER STRANGE: Any other questions 5
6 of the applicant? Thank you,Mr.Reichhart. Is there 6
7 anyone else here who wishes to speak in favor of this 7
8 item? Is there anyone who wishes to speak in opposition 8
9 to this item? Seeing none,we will close the public 9
10 hearing. Do we have a motion? 10
11 COMMISSIONER HOLT: So moved--move 11
12 approval. 12
13 coMMISSIoNER STRANGE: we have a motion 13
14 from Mrs.Holt. Do we have a second? 14
15 COMMISSIONER THIBODEAUX: second. 15
16 COMMISSIONER STRANGE: Second by Dr. 16
17 Thibodeaux. Any discussion? Please,vote. Motion passes 17
18 6-0. 18
19 19
20 20
21 21
22 22
23 23
24 24
25 25
Page 90 Page 92
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PLANNING AND ZONING MINUTES OCTOBER 12, 2005 Page 89 - Page 92
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Fiscal Operations
ACM: Jon Fortune
SUBJECT
Consider approval of a resolution casting votes for membership to the Board of Directors of
the Denton Central Appraisal District; and declaring an effective date.
BACKGROUND
On September 7, 2005, the Denton Central Appraisal District (DCAD) requested
nominations to their Board of Directors, as the term for all the current members expires
December 31, 2005. The current DCAD Board Members include Charles Stafford (Denton),
Rick Woolfolk (Denton), Lee Baker (Flower Mound), Steve Mossman (Lewisville), and Ben
Harmon (Lewisville). On October 7, 2003, the City nominated Rick Woolfolk and Charles
Stafford. Mr. Stafford and Mr. Woolfolk were elected. On July 16, 2005, Steve Mossman
was made a voting member of the Board, due to the resignation of Richard Smith.
The number of votes a taxing unit has is determined by their proportional share of the total
levy in the district from the prior tax year. There are a total of 5,000 votes throughout the
district. One thousand votes are the maximum number needed to elect a local
representative/nominee to the five-member Board of Directors. This year, the City has 163
votes, and DISD has 692 votes.
On October 4, 2005, Council nominated Rick Woolfolk and Charles Stafford to continue to
serve on the DCAD Board of Directors. They were also nominated by DISD. On October 21,
2005, DCAD sent a memo (attached) to the City listing the candidates nominated by the
taxing jurisdictions. In a concerted effort, DISD has requested that the City cast all of their
votes for Rick Woolfolk. DISD will strategically cast their votes at a later date in an effort to
get both candidates elected. Votes must be reported to DCAD by December 15, 2005.
SCHEDULE
Applies only to every other year:
Prior to Oct. 1 - DCAD notifies taxing entities of the number of votes they are entitled
to cast for appropriating board members.
Prior to Oct. 15 - Nominations for DCAD Board of Directors are submitted to DCAD by
each jurisdiction (via resolution).
Agenda Information Sheet
November 15, 2005
Page 2
Prior to Oct. 30 - DCAD compiles comprehensive list of nominees and forwards list to
each taxing unit in ballot forms.
Prior to Dec. 15th - Taxing units choose by written resolution a candidate(s). Name(s) of
candidate(s) are submitted to DCAD along with the number of votes
for each candidate.
Prior to Dec. 31st - DCAD tabulates votes and forwards results to taxing units. The five
(5) candidates with the most votes become the Board of Directors as of
January 1.
Eligibility Guidelines:
• The selection process is set forth in Section 6.03 of the Property Tax Code.
• An appraisal district director must reside in the appraisal district for at least two (2) years
immediately preceding the date he or she takes office. Most residents are eligible to
serve as a director.
• An employee of a taxing unit served by the appraisal district is not eligible to serve as a
director. However, if the employee is an elected official, he or she is eligible to serve.
• A statute relevant to the Board selection process prohibits nepotism and conflict of
interest for appraisal district directors and chief appraisers. In summary, the law states
that:
......."a person may not serve as director of closely related to anyone in the appraisal
district or if related to anyone who represents owners in the district, or if the person has
an interest in a business that contracts with the district or a taxing unit. A chief appraiser
may not employ someone closely related to a member of the board of directors".
• EXPERIENCE—In considering individuals to serve as directors, taxing units should look
for expertise in such areas as accounting, finance, management, personnel administration,
contracts, computers, real estate or taxation. Historical involvement in local government
activities also indicates that someone should make an excellent Board member.
• FREQUENCY OF MEETINGS — The applicable statutes require the board of directors to
meet not less often than once each calendar quarter. The DCAD Board meets more often
than is required by law.
FISCAL INFORMATION
There is no fiscal impact to the City of Denton.
Agenda Information Sheet
November 15, 2005
Page 3
EXHIBITS
Memo from DCAD
Resolution
Respectfully submitted:
Diana G. Ortiz
Chief Financial Officer
DENTON CENTRAL APPRAiEAL DiSTRICT
3911 Morse Street, P.O.Box 2816
Denton,TX 76202-2816
www.dentonead.com
o ��► 5
MEMO
TO: axing Jurisdictions
FROM: Joe Rogers
DATE: October 21,2005
SUBJECT: -Mndidates to oard'of "" Centrai.A ppraaDisn6t--_.
Candidates to the Denton Central Appraisal District Board of Directors are listed below.The list is
in alphabetical order by last name.
Each voting unit must cast its vote by written resolution and submit it to the Chief Appraiser by
December 15th. The unit may cast all Its`votes for one candidate or may distribute the votes
among any number of candidates. When a voting unit casts its votes, it must cast the votes for a'
person that was nominated and is named on the ballot. There is no provision for write-in
candidates. The Tax Code does not permit the Chief Appraiser to count votes cast for someone
not listed on the official ballot. The five nominees receiving the most votes will become the Board
of Directors.
The candidates nominated by the taxing jurisdictions are:
Lee A. Baker Lewisville ISD, City of LewisvHle
2. . Pat Carr Town of Trophy Club
3. Pearl Ford Town of Trophy Club
4. Shirley Heisler City of Krum
5. Doug Killough Lewisville ISD,City of Lewisville
6. Jeff Low Aubrey ISD
7. Steve Mossman Lewisville ISD, City of Lewisville,Denton County
8 Robert Redder Town of Trophy Club
9. afford Denton ISD, Cltybf Denton
10. Rick Wooifolk Denton ISD, City of 6enlon
Since some of you may not be familiar with the process of selecting the Board, please do not
hesitate to co ct Kethy Williams at(940)349-3974 for clarification and/or information.
1
Joe Roge
Chief Appraiser
Phone: 940-349-3800 Metro: 972-434-2602 Fax: 940-349-3801
DENTON CENTRAL,APPRAISAL DISTRICT
2005 DISTRIBUTION OF VOTES
2004 0/60F TOTAL NUMBER
ICTIONS TAX LEVY LEVIES OF VOTES
SCHOOL DISTRICTS:
SOl ARGYLE ISD $11,628,671.44 1.441% 72
S02 AUBREY ISD $5,234,948.:34` .,' 0.649%' 32
505 DENTON ISD $111,690,985.68 13.8370/. 692
S07 KRUM ISD $8,110,622:80 1.005°lo'_ 50
S09 . LAKE DALLAS LSD $18,352,939.72 2.274% 114
S09 LEWiSVILLE ISD $301,632,632,53 37.367% 1866
S10 LITTLE ELM ISD $16,689,505.80 2.068% iO3
Sii NORTHWEST ISD $98,062,250.77 12.148°/0 607
IS12 PILOT POINT ISD $6,712,756.56 0.832°/0 42
S13 PONDER ISD $10,014,567:13 1..241'/0 62
X14 $AVER ISD w $9 7 b3 1.2196 61
SCHOOL DISTRICTS TOTALS $597,899,450.08 74.070% 3701 `
G01 DENTON COUNTY $91,696,81,7.12 11.360°/9 568
CITIES
C26 CITY OF ARGYLE $1,024,7$4.97 0.127% 6
COl CITY OF AUBREY $4266,314.59 0.053% 3
C31 TOWN OF BARTONVILLE $269,016;14 0.033% 2
AN21 TOWN OF CLARK $69,964,13 0.0090/o 1
CO3 CITY OF THE COLONY $12,448,889.30 1.542% 77
C04 TOWN OFCORINTH $6,721,510.25 0.833% 42
C27 TOWN OF COPPER CANYON $202071,84 0.025°/0 1
C05 CITY OF DENTON $26,353,489.67 3.265% 163
C30 , CITY OF DOUBLE OAK $530,275.15 0,066°/0 3
67 CITY OF FLOWER MOUND $22,$85,144.91 2.835% 142
C22 TOWN OF HACKBERRY $64,911.67 0.008°/0 1
C19 TOWN OF HICKORY CREEK $824,349.40 .0.102% 5
C08 CITY OF HIGHLAND VILLAGE. $6,765,768.40 0.838% 42
C09 CITY OF JUSTIN $607,039.50 0.075% 4
C18 CITY OF KRUGERVILLE $147,145.08 0.018% ;
CIO CITY OF KRUM -$470,312,14 0.058% 3
Cl l CITY OF LAKE DALLAS $1,683,$19.1$, 0.209'0 10
C2$ TOWN OF LAKEWOOD VILLAGE $105,23 0 013%, 1
CITY 41x LEWISVII I46
C13
C23 CITY OF MARSHALL CREEK $43,941.59 ' 0.005% 1
C33 CITY OF NORTHLAKE $224,144.30 0.028% 1
C24 CITY OF OAK POINT $1,024,267.71 0.127% 6
C14 CITY OF PILOT POINT $759,331.1$ 0494% 5
CIS CITY OF PONDER $208,.42 0,02604 1
C17 CITY OF ROANOKE $2,617,$51 .26 0.324% 16
C16 CITY OF SANGER $1,718,167.24 0.213% 11
C34 : `TOWN OF SHADY SHORES $464,759.92 0.058% 3
C28 CITY OF TROPHY CLUB $2,517,96213 0.312% 16
CITIES TOTALS $11.7,614,354.46 14.570°/0 730
GRAND TOTALS $807,210,621.66 100.0000/0 5000
XATHYWt3HEET12005ALL0C.XLS
SAOur Documents\Resolutions1051DCA,D Casting Votes.doc
RESOLUTION NO.
A RESOLUTION CASTING VOTES FOR MEMBERSHIP TO THE BOARD OF
DIRECTORS OF THE DENTON CENTRAL APPRAISAL DISTRICT; AND DECLARING
AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES:
SECTION 1. The City Council of the City of Denton, Texas, hereby casts all 163 votes
for Rick Woolfolk for membership to the Board of Directors of the Denton Central Appraisal
District for the County of Denton, Texas.
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, CITY ATTORNEY
BY:
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Fiscal Operations
ACM: Jon Fortune ff
SUBJECT
Consider approval of a Resolution nominating members to the Appraisal Review Board of the
Denton Central Appraisal District; and declaring an effective date.
BACKGROUND
The Appraisal Review Board (ARB) is a body specifically charged with the responsibility of
reviewing protested appraisal records. They meet primarily between May and July and as needed
thereafter. Members of the ARB serve two-year staggered terms. Approximately half the
member's terms expire each year. Terms begin January 1. Nominations to this Board are
provided by the taxing jurisdictions and appointed by the Denton Central Appraisal District
(DCAD) Board of Directors by a majority vote. City Council may submit as many nominations
as they desire. Attached is a brief summary of qualifications for appointment to the ARB and a
questionnaire. Nominees must complete and return the questionnaire to the DCAD by November
15, 2005. The Board of Directors is scheduled to make their selection during their December
meeting.
A list of the current members is also attached. The five members whose terms will expire in
December 2005 are as follows:
Bill James (Corinth) Jack Weir(Denton)
Howard Creamer(Little Elm) Willaim Sinclair(Shady Shores)
Patrick Carr(Trophy Club)
All five are eligible for reappointment and have expressed a desire to serve another term.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
On November 16, 2004, Council nominated George Gibson and David Rowley as members to
the Appraisal Review Board of the Denton Central Appraisal District.
Agenda Information Sheet
November 15, 2005
Page 2
FISCAL INFORMATION
There is no fiscal impact to the City.
EXHIBITS
Appraisal Review Board Summary of Qualifications
2005 Appraisal Review Board Members List
Resolution
Respectfully submitted:
Diana G. Ortiz
Chief Financial Officer
APPRAISAL REVIEW BOARD
Qualifications
To serve on the Appraisal Review Board (ARB), you must have lived in the appraisal
district for at least two years before taking office. You don't need any special
qualifications. The Comptroller's office will provide a course for training ARB
members. All ARB members must complete the course to participate in ARB hearings.
Persons Ineligible
1. Those who have served all or part of three previous terms on the ARB.
2. Current or former members of the board of directors, officers, or employees of
the appraisal district.
3. Those who serve or have served as a member of the governing body or officer
of a taxing unit for which the appraisal district appraises property, until the e
anniversary of the date the person ceased to be a member or officer. (Our
attorney has interpreted an officer to be a member of a Planning and Zoning
Board, a member of a Zoning Board of Adjustments, an election official or
any officer that has decision-making authority for any entity that the Appraisal
District serves.)
4. Those who have ever appeared before the ARB for compensation or if a
relative appears, or their work product is used before the ARB for
compensation.
5. Employees of the Comptroller's Office or a taxing unit.
6. Those who contract with the appraisal district or with a taxing unit that
participates in the appraisal district. Also, if the person or a business entity in
which the person has a substantial interest contracts with the appraisal district
or a taxing unit that participates in the appraisal district.
7. Those with Delinquent Property Taxes.
Appointment
The Board of Directors will appoint ARB members by a majority vote and record their
decision in a resolution. Terms begin January 1. Members serve two-year staggered
terms; approximately half the member's terms expire each year.
ARB Compensation
The ARB receives a $75.00 minimum for a half day and a maximum pay of$150.00 per
day.
ARB Meetings
Beginning in January, the ARB will meet on the third Wednesday of each month.
(Except in May, June and July) Meetings are held at the offices of Denton CAD.
ARB reappraisal hearings will start on a daily basis, as needed, from late May until the
appraisal roll is approved usually in late July. Meetings will normally be from 9:00 A.M.
to 5:00 P.M. Currently the ARB meets one night a week in May, June, and July.
Appraisal Review Board Questionnaire
The Board of Directors of the Denton Central Appraisal District is considering you as a possible
member of the Appraisal Review Board. The Board of Directors will choose members for a two-
year term. The selection will be made at the next Board meeting. Would you please answer the
following questions and return to the District as soon as possible.
Name
Address
Address
Phone
Nominating Jurisdiction
1. Would you be willing to serve?
(Beginning in January, the ARB will meet on the third Wednesday of each month.
(Except in May, June, and July) ARB reappraisal hearings will start on a daily basis
from late May until late July from 9:00 A.M.to 5:00 P.M.
2. Have you ever been an officer or employee of the appraisal district?
3. Have you ever served on the appraisal district's board of directors?
4. Have you ever been a member of the governing body or an officer of a taxing unit for
which the appraisal district appraises property? If so, has it been the 4tn
anniversary of the date you ceased to be a member or officer?
5. Have you ever appeared before the ARB for compensation?
6. How long have you resided in Denton County?
7. Occupation
8. Do you have any prior experiences serving on an appraisal review board or any board
that has to do with property value?
9. Could you make a decision based on evidence rather than feelings for the taxpayer?
10. The property tax code requires that all property be valued at 100%of market value.
Could you keep this in mind throughout the proceedings?
11. Would you be willing to work nights and weekends if necessary?
The Board of Directors will notify you of their decision.
Board of Directors
Denton Central Appraisal District
Denton Central Appraisal District
3911 Morse Street, P O Box 2816
Denton, Texas 76202-2816
(940) 349-3800
2005 DCAD APPRAISAL REVIEW BOARD
Original Term—January 2001 Term Expires 12/31/2006
JOHN SOLBERG
2244 Stonegate
Denton, TX 76205
940-387-3089
Original Term—April 2001 Term Expires 12/31/2006
JAMES M. DEAR
5122—FM 2931
Aubrey, TX 76227
940-365-9596
Original Term—January 2002 Term Expires 12/31/2005
BILL JAMES
3601 Derby Run
Corinth, TX 76210
940-321-1117
Original Term—January 2002 Term Expires 12/31/2005
JACK WEIR
1212 Vista Verde
Denton, TX 76210
940-484-8302
Original Term—January 2003 Term Expires 12/31/2006
PATRICIA STEELE
3507 Buckingham
Corinth, TX 76210
940-498-9406
Original Term—January 2003 Term Expires 12/31/2006
SHIRLEY 14AISLER
1200 Cowling Rd.
Sanger, TX 76266
940-458-3678
Original Term—January 2003 Term Expires 12/31/2005
HOWARD CREAMER
P. O. Box 289
Little Elm, TX 75068
972-292-2212
Original Term—January 2003 Term Expires 12/31/2005
WILLIAM SINCLAIR
No 52. Hidden Valley Rd.
Shady Shores, TX 76208
940-321-3686
Original Term—January 2003 Term Expires 12/31/2005
PATRICK CARR, JR.
1116 Trophy Club Dr.
Trophy Club,TX 76262
817-491-1153
Original Term—January 2003 Term Expires 12/31/2006
HURL SCRUGGS, JR.
712 Knollridge Dr.
Lewisville,TX 75077
972-221-4323
Original Term—January 2003 Term Expires 12/31/2006
BETTY MCCRARY
1474 College Parkway
Lewisville, TX 75077
972-221-1965
Original Term—January 2003 Term Expires 12/31/2006
FRED M.WILLIAMS
2704 Devonshire Dr.
Carrollton, TX 75007
972-245-5060
Original Term—January 2002 Term Expires 12/31/2006
LOUIS HALL
717 E. Roewe St.
Pilot Point, TX 76258
940-686-0062
Original Term—January 2005 Term Expires 12/31/2006
WILLIAM E. HOSKINS
4305 Essex Ct.
Flower Mound, TX 75028
972-539-7574
Original Term—January 2005 Term Expires 12/31/2006
WAYNE GILLUM
504 South Kirby
Pilot Point, TX 76258
940-686-2708
Original Term—January 2005 Term Expires 12/31/2006
DONALD L. MILLER
6710 Oliver Creek Road
Justin, TX 76247
9410-648-3387
S:10ur Documents\Resolutions1051Appraisal Review Board 2005.doc
RESOLUTION NO.
A RESOLUTION NOMINATING MEMBERS TO THE APPRAISAL REVIEW BOARD OF
THE DENTON CENTRAL APPRAISAL DISTRICT; AND DECLARING AN EFFECTIVE
DATE.
WHEREAS, the term of office for various Appraisal Review Board members of the
Denton Central Appraisal District will expire on December 31, 2005; and
WHEREAS, the City of Denton, Texas wishes to nominate members to said Board;
NOW, THEREFORE
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES:
SECTION 1. The City of Denton, Texas, hereby nominates
and as members to the Appraisal Review Board of the Denton Central
Appraisal District.
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. SNYD CITY TTORNEY
BY:
AGENDA INFORMATION SHEET
AGENDA DATE: November 15, 2005
DEPARTMENT: Legal Department
CM/DCMIACM: Ed Snyder, City Attorney
SUBJECT: CONSIDER AN ORDINANCE OF THE CITY OF DENTON, TEXAS, DENYING
THE REQUEST OF JNC PARTNERS DENTON, LLC DATED NOVEMBER 1, 2005 FOR
INCLUSION IN A THREE-YEAR ANNEXATION PLAN RELATED TO ANNEXATION
CASE NO. A05-0002 AND DECLINING ITS REQUEST FOR ARBITRATION; AND
PROVIDING AN EFFECTIVE DATE.
BACKGROUND. On October 4, 2005 the City received a petition from JNC Partners Denton,
LLC ("JNC") to be included in a three-year annexation plan under Subchapter C of Chapter 43
of the Texas Local Government Code. On October 18, 2005 pursuant to Ordinance No. 2005-
323 the City Council denied the petition. On November 1, 2005 JNC filed a new petition
renewing its request to be included in a three-year annexation plan and requesting arbitration.
This ordinance is a response to that new petition.
OPTIONS: Approve the ordinance as proposed or approve an ordinance granting the petition.
RECOMMENDATION: Staff recommends approval of the ordinance as proposed for the
reasons stated in the proposed ordinance.
Respectfully s itted,
Ed Snyder
City Attorney
SAO-1 Doe mt$\Miscellaneous'055110805AISJNCW—Petitimdac
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS,DENYING THE REQUEST OF JNC
PARTNERS DENTON, LLC. DATED NOVEMBER 1, 2005 FOR INCLUSION IN A THREE-
YEAR ANNEXATION PLAN RELATED TO ANNEXATION CASE NO.A05-0002;DECLINING
ITS REQUEST FOR ARBITRATION; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS,the City proposes to annex approximately 5,800 acres of land(the"Annexation
Area"), in Denton Annexation Case No. A05-0002; and
WHEREAS, JNC Partners Denton, LLC ("JNC") filed a written petition dated October 4,
2005,pertaining to approximately 1,900 acres of land within the Annexation Area owned by JNC
(the"JNC Property'),requesting that the JNC Property be included in a three-year annexation plan
under Subchapter C of Chapter 43 of the Texas Local Government Code(the"JNC Petition"); and
WHEREAS, on October 18, 2005, pursuant to Ordinance No. 2005-323 (the "Prior
Ordinance"), the City Council denied the JNC Petition; and
WHEREAS, all of the terms,conditions, and findings contained in the Prior Ordinance are
incorporated herein by reference; and
WHEREAS,on November 1,2005,JNC delivered to the City Council a new petition,a copy
of which is attached hereto and made a part hereof by reference as Exhibit"A"(the"New Petition"),
requesting reconsideration of the City Council's decision in the Prior Ordinance and requesting
arbitration if the City Council does not reverse its decision;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
true and correct and are incorporated herein by reference.
SECTION 2. The City Council hereby makes the following additional findings:
a. Items 1 through 8 on pages 2 and 3 of the New Petition were proposed prior to December
31, 2002, and were either completed or withdrawn prior to that date.
b. Items I through 8 on pages 2 and 3 of the New Petition relate to properties within
Denton's Extraterritorial Jurisdiction("ETJ'),but that are located a considerable distance
from the Annexation Area.
c. Items 4 and 5 on page 2 of the New Petition were withdrawn by the City and the
annexations were not completed.
d. Item 7 on page 2 of the New Petition was not an involuntary annexation,as the property
Page 1
owner changed it to a voluntary annexation prior to the initiation of the annexation.
e. Item 9 on page 3 of the New Petition is incorrect, as the City did not propose or initiate
an involuntary annexation along Corbin Road.
f. The"Ash Grove Cement''proposed annexation referenced in Item 10 on page 2 of the
New Petition was withdrawn by the City Council on November 1, 2005, and was not
completed.
SECTION 3. The City Council hereby denies the New Petition. The New Petition fails to
identify involuntary annexations showing that the City of Denton proposes to circumvent the
requirements of Section 43.052 of the Texas Local Government Code,by separately annexing two or
more areas described in Subsection(i) of that section.
SECTION 4. The City Council hereby declines to enter into arbitration as requested in the
New Petition, as JNC fails to make a prima facie showing that the proposed annexation falls within
the scope of Subsection 43.052(1)of the Texas Local Government Code.
SECTION 5. This ordinance shall take effect immediately from and after 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. S ITY TTORNEY
BY:
Page 2
Exhibit A
1717 Main Street,Suite 2800
HUGHES , WCE LLP Dallas,Texas 75201
ATTORNEYS AND COUNSELORS 214.939.5500
214.939.5849(fax)
November 1,2005 Misty.Ventura @HughesLuoe.com
Misty Ventura
214.939.5452
VIA HAND DELIVERY
City of Denton
c/o City of Denton City Council
(Mayor Euline Brock,Perry McNeill, Charlye Heggins,
Pete Kamp,Jack Thomson, Bob Montgomery, and Joe Mulroy)
215 E. McKinney
Denton,Texas 76201
Re: Proposed annexation of approximately 5,800 acres (the"Annexation
Area") located within the extraterritorial jurisdiction ("ETJ") of the
City of Denton(the "City") pursuant to the City's proposed North
Denton Annexation, A05-0002,including approximately 1,900 acres
owned by JNC Partners Denton, LLC (the"JNC Property")
Dear Mayor and Council Members:
Hughes & Luce, LLP, represents JNC Partners Denton, LLC, the owner of the
JNC Property. This letter addresses issues created by the City's plans to annex the JNC
Property, and is with reservation of any and all rights and remedies my client has
regarding that proposed annexation.
The purpose of this letter is two-fold. First, in light of the evidence presented
below, we would request that the City reconsider its denial of our request that the
Annexation Area be included in the City s three-year annexation plan. Second, we
hereby request arbitration of this dispute pursuant to Texas Local Government Code
§43.052(1) and Hughes v. City of Rockwall, 153 S.W.3d 709 (Tex. App.—Dallas 2005)
(attached).
The City Has Failed to Take Action to Include the Annexation Area In Its Three-Year
Annexation Plan.
On September 2, 2005,by notice sent to property owners in the Annexation Area,
the City proposed to annex the Annexation Area under Section 43.052(h)(1) of the Texas
Local Government Code (the "(h)(1) exception"). On October 5, 2005, and pursuant to
Texas Local Government Code § 43.052(i), JNC Partners Denton, LLC, petitioned the
015815.00010:934537.02
HUGHES ,WCE LLP
ATTORNEYS AND COUNSELORS
City of Denton
November 1, 2005
Page 2
City to include the Annexation Area in the City's three-year annexation plan. On
October 18, 2005,the City denied the request by approving Ordinance No. 2005-323 and
thereby failed to take action to include the Annexation Area in its three-year annexation
plan.
Denton Has Proposed to Use The (h)(1) Exception At Least Eleven Times Since
September 1 1999.
The City has proposed, since September 1, 1999, to separately annex the
following eleven areas using the (h)(1) exception:
1. On or about January 9, 2001, the City proposed to involuntarily annex
approximately 668 acres of the "Ryan Road/Country Club Road" area
under the (h)(1) exception.
2. On or about February 20, 2001, the City proposed to involuntarily annex
approximately 534.acres of the "US 377/1-35W" area under the (h)(1)
exception.
3. On or about April 3, 2001, the City proposed to involuntarily annex the
"Blagg Road" area under the (h)(1) exception.
4. On or about July 24, 2001, the City proposed to involuntarily annex the
"Masch Branch Road" area under the (h)(1) exception.
5. On or about July 24, 2001, the City proposed to involuntarily annex the
"AGF Ranch" area under the (h)(1) exception.
6. On or about July 24, 2001, the City proposed to involuntarily annex the
"Robson Ranch North" area under the (h)(1) exception.
7. On or about April 17, 2001, the City proposed to involuntarily annex a
portion of the "Hunter Ranch" property under the (h)(1) exception.
8. On or about August 14, 2001, the City proposed to involuntarily annex
approximately 104 acres owned by the TRIO Operating Company under the
(h)(1) exception.
015815.00010:934537.02
HUGHES,WCE LLP
ATTORNEYS AND COUNSELORS
City of Denton
November 1, 2005
Page 3
9. On or about October 1, 2003, the City proposed to involuntarily annex the
"Corbin Road" area under the (h)(1) exception.
10. On or about August 24, 2004, the City proposed to involuntarily annex the
"AshGrove Cement" area under the (h)(1) exception.
11. On or about October 4, 2005, the City proposed to involuntarily annex the
JNC Property and other neighboring tracts under the (h)(1) exception.
The City's serial use of the (h)(1) exception violates § 43.052 of the Texas Local
Government Code.
Denton's Stated Poli Of ReactionAU Involunt@a Annexation Is Not In Accordance
With Generally Accepted Municipal Planning Principles and Practices.
As noted in our previous letter, the City's "annexation plan" is really no plan at
all. Instead, it is the City's stated policy to assess "on a case-by-case basis the
annexation of areas in the extraterritorial jurisdiction (ETJ) when significant
developments are proposed, occurring, or likely to occur in the near future." City of
Denton Ord. No. 94-150. The City has further stated that"annexation should be used as
a tool to manage undesirable growth." Memorandum from Dave Hill to the Mayor and
City Council. Members, July 20, 2001. Rather than preparing a true three-year
annexation plan to manage growth within its ETJ, the City waits for development to be
proposed,then institutes involuntary annexation proceedings against the property.
This is not sound planning. Such a process does nothing to produce rational,
effective municipal boundaries. Instead, it results in rag tag, gerrymandered
boundaries that snake from development to development, omitting vast areas of land
in-between. Reactionary annexation also circumvents the will of the Legislature that
owners of areas to be annexed be given sufficient time to anticipate and plan for the
annexation. Reactionary annexation results in unwise management of municipal
growth, gerrymandered municipal boundaries, and unfair treatment of landowners
within the City's ETJ.
The Annexation Plan Should Be Amended.
The Local Government Code provides a safeguard against the approach the City
has taken. Section 43.052(1) provides that a municipality may not circumvent the
015815.00010:434537.02
HUGHES ,WCE LLP
ATTORNEYS AND COUNSELORS
City of Denton
November 1,2005
Page 4
requirements of Section 43-052 by proposing to separately annex two or more areas
under the (h)(1) exception if no reason exists under generally accepted municipal
planning principles and practices for separately annexing the areas. In other words, the
(h)(1) exception cannot be used merely to circumvent the statutorily required three-year
annexation plan.
Not only has the City proposed to separately annex at least eleven properties
using the (h)(1) exception, the City's stated annexation policy is to annex in reaction to
proposed development within the City's ETJ. Such a reactionary scheme is not in
accordance with generally accepted municipal planning principles and practices; as
such,the City's actions violate Section 43.052 of the Local Government Code.
In Iight of this evidence, JNC Partners Denton, LLC,-" requests that the City
reconsider its decision and include the INC Property in the City's formal, three-year
annexation plan as required under Chapter 43 of the Local Government Code. INC
Partners Denton, LLC, respectfully requests that the City respond to this request no
later than November 15,2005.
NC Partners Denton LLC Requests Arbitration of This Dispute.
JNC Partners Denton, LLC, requested that the Annexation Area be included in
the City's three-year annexation plan. The City failed to take the necessary action to
include the Annexation Area in the City's plan. Texas Local Government Code §
43.052(1) gives JNC Partners Denton, LLC, the right to request and receive arbitration of
this dispute. Hughes v. City of Rockwall, 153 S.W.3d 709 (Tex. App.—Dallas 2005)
(attached).
JNC Partners Denton, LLC, hereby requests arbitration as provided by Texas
Local Government Code § 43.052(i). Please provide a list of arbitrators that are
acceptable to the City no later than November 15, 2005, the time period described in
Texas Local Government Code § 43.0564(b,) so that we may reach an agreement, if
possible, as to the arbitrator who will determine this dispute. Should we be unable to
reach an agreement regarding the arbitrator by November 15,2005, as required by Texas
Local Government Code §43.0564(b), we ask that the City immediately request a list of
seven neutral arbitrations from the American Arbitration Association or the Federal
Mediation and Conciliation Service as the statute provides. We also ask that we be
copied on any communications between the City and the American Arbitration
015815.00010:934537.02
HUGHES i WCE LLP
ATTORNEYS AND COUNSELORS
City of Denton
November 1, 2005
Page 5
Association or the City and the Federal Mediation and Conciliation Service regarding
the list of arbitrators.
Respectfplly, V.
lb,Misty V ntura
cc: City of Denton City Secretary
Attorney General Greg Abbott
Daxlia Hobbs,Citizens Against Forced Annexation
Enclosure
015815.00010:934537.02