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October 15, 2013 Agenda
AGENDA CITY OF DENTON CITY COUNCIL October 15, 2013 After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, October 15, 2013 at 3:30 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: WORK SESSION 1. Citizen Comments on Consent Agenda Items This section of the agenda allows citizens to speak on Consent Agenda Items only. Each speaker will be given a total of three (3) minutes to address any items he /she wishes that are listed on the Consent Agenda. A Request to Speak Card should be completed and returned to the City Secretary before Council considers this item. 2. Requests for clarification of agenda items listed on the agenda for October 15, 2013. 3. Receive a report, hold a discussion, and give staff direction on the criteria to the Tree Trusts mitigation option in Subchapter 35.13.7.A of the Denton Development Code (DDC), and a recommendation of amendments to Subchapter 35.13.7.A.7.f specifically related to tree mitigation standards for Tree Trusts. 4. Receive a report, hold a discussion and initiate the selection process to appoint members for the Tree Fund Advisory Committee. 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. 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, or as otherwise allowed by law. CLOSED MEETING 1. Closed Meeting: A. Deliberations Regarding Certain Public Power Utilities: Competitive Matters — Under Texas Government Code Section 551.086; Consultation with Attorneys — Under Texas Government Code Section 551.071. 1. Receive a report and a presentation from Denton Municipal Electric staff regarding certain public power competitive and financial matters related to issuing a new Request for Proposals for Local Solar Energy Installations - 2013 by the City soliciting proposals for a solar - generated energy facility or facilities for the City of Denton, Texas; discuss, deliberate and provide staff with direction regarding such matters. Consultation with the City's attorneys regarding legal advice regarding such matters where a public discussion of this legal matter would conflict with the duty of the City's Attorneys to the Public Utilities Board under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. City of Denton City Council Agenda October 15, 2013 Page 2 B. Deliberations regarding Real Property — Under Texas Government Code Section 551.072; Consultation with Attorneys — Under Texas Government Code Section 551.071. 1. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located in the A.N.B. Tompkins Survey, Abstract Number 1246, Denton County, Texas (located generally in the 2400 block of South Bonnie Brae Street) in the City of Denton, Denton County, Texas; and consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the tracts referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and Denton 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. C. Consultation with Attorney — Under Texas Government Code Section 551.071. 1. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Gas Well Ordinance regulation of gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional limitations, statutory limitations upon municipal regulatory authority, statutory preemption and /or impacts of federal and state law and regulations as it concerns municipal regulatory authority and matters relating to enforcement of the ordinance. 2. Consult with City's attorneys regarding legal issues and legal challenges arising out of municipal ordinances regulating the operation and location of credit access businesses, including Denton ordinance 2013 -073 and possible amendments thereto, as well as the status and strategic considerations associated with litigation pending in the 16th District Court of Denton County, Texas styled ACE Cash Express v. City of Denton, cause no. 2013 - 10564 -16. 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. GOVT. 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. Regular Meeting of the City of Denton City Council 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: City of Denton City Council Agenda October 15, 2013 Page 3 REGULAR MEETING 1. PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag "Honor the Texas Flag — I pledge allegiance to thee, Texas, one state under God, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations /Awards 1. National Procurement Institute Achievement in Excellence in Procurement Award for 2013 2. ReUse Day Proclamation 3. Presentation regarding ReUse initiatives 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: 1) Kenneth Stout regarding street impact fees for street maintenance. 4. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consent Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda Items A — GG). 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 — GG below will be approved with one motion. If items are pulled for separate discussion, they may be considered as the first items following approval of the Consent Agenda. A. Consider adoption of an ordinance approving a First Amendment to a Lease Agreement between the City of Denton, Texas and Master Recycling of Texas, Inc. to be executed by the City Manager relating to a certain 3.5 acre tract of land situated in the Gideon Walker Survey, Abstract Number 1330, and a certain 1.924 acre tract of land situated in the G. Walker Survey, Abstract Number 1330, in the City of Denton, Denton County, Texas; and providing an effective date. B. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Air Fair, Inc. for the payment and use of hotel tax revenue; and providing an effective date. ($10,240) The Hotel Occupancy Tax Committee recommends approval (3 -0). City of Denton City Council Agenda October 15, 2013 Page 4 C. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitors Bureau) for the payment and use of hotel tax revenue; and providing an effective date. ($783,100) The Hotel Occupancy Tax Committee recommends approval (3 -0). D. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Black Chamber of Commerce for the payment and use of hotel tax revenue; and providing an effective date. ($16,580) The Hotel Occupancy Tax Committee recommends approval (3 -0). E. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. for the payment and use of hotel tax revenue; and providing an effective date. ($23,010) The Hotel Occupancy Tax Committee recommends approval (3 -0). F. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton Dog Days, Inc. for the payment and use of hotel tax revenue; and providing an effective date. ($14,590) The Hotel Occupancy Tax Committee recommends approval (3 -0). G. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Festival Foundation for the payment and use of hotel tax revenue; and providing an effective date. ($82,820) The Hotel Occupancy Tax Committee recommends approval (3 -0). H. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Greater Denton Arts Council for the payment and use of hotel tax revenue; and providing an effective date. ($117,780) The Hotel Occupancy Tax Committee recommends approval (3 -0). L Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Holiday Festival Association, Inc. for the payment and use of hotel tax revenue; and providing an effective date. ($7,640) The Hotel Occupancy Tax Committee recommends approval (3 -0). J. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Central Business District Association, Inc., d /b /a Denton Main Street Association for the payment and use of hotel tax revenue; and providing an effective date. ($23,010) The Hotel Occupancy Tax Committee recommends approval (3 -0). K. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Music Theatre of Denton for the payment and use of hotel tax revenue; and providing an effective date. ($5,000) The Hotel Occupancy Tax Committee recommends approval (3 -0). City of Denton City Council Agenda October 15, 2013 Page 5 L. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the North Texas State Fair Association for the payment and use of hotel tax revenue; and providing an effective date. ($73,620) The Hotel Occupancy Tax Committee recommends approval (3 -0). M. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Susan G. Komen for the Cure Advocacy Alliance (North Teas Affiliate) for the payment and use of hotel tax revenue; and providing an effective date. ($10,000) The Hotel Occupancy Tax Committee recommends approval (3 -0). N. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Tejas Storytelling Association, Inc. for the payment and use of hotel tax revenue; and providing an effective date. ($50,610) The Hotel Occupancy Tax Committee recommends approval (3 -0). O. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Texas Filmmakers' Corporation for the payment and use of hotel tax revenue; and providing an effective date. ($7,500) The Hotel Occupancy Tax Committee recommends approval (3 -0). P. Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton County, Texas (Denton County Office of History and Culture) for the payment and use of hotel tax revenue; and providing an effective date. ($108,570) The Hotel Occupancy Tax Committee recommends approval (3 -0). Q. Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement (PSA) with Freese and Nichols, Inc. and the City of Denton for engineering and support services related to the Five (5) Year Capital Improvement Plan for transmission and substation projects for Denton Municipal Electric; and providing an effective date (File 5372 —in an amount not - to- exceed $12,150,000). The Public Utilities Board recommends approval (7 -0). R. Consider adoption of an ordinance abandoning and vacating an Electric Utility Easement (The "Easement "), granted by Denton County National Bank to the City of Denton, Texas, pursuant to that certain Easement dated April 22, 1976, and recorded in Volume 783, Page 343, Real Property Records, Denton County, Texas said Easement encumbering lands located in the Wm. Neil Survey, Abstract No. 970, Denton County, Texas and generally located at 325 West Hickory Street, and declaring an effective date. The Public Utilities Board will consider this item on October 14, 2013. S. Consider adoption of an ordinance abandoning and vacating a Temporary Drainage Easement (The "Easement "), granted by Allegiance Hillview, LP. to the City of Denton, Texas, pursuant to that certain Easement, dated August 20, 2007, and recorded as Instrument No. 2007 - 104852, Real Property Records, Denton County, Texas, said Easement encumbering lands located in the Buffalo Bayou, Brazos and Colorado Railroad Company Survey, Abstract No. 192, Denton City of Denton City Council Agenda October 15, 2013 Page 6 County, Texas and generally located at the 2600 block of Scripture Street and declaring an effective date. The Public Utilities Board will consider this item on October 14, 2013. T. Consider adoption of an ordinance abandoning and vacating an Electric Utility Easement (The "Easement "), granted by Singing Oaks Apts. 41 to the City of Denton, Texas, pursuant to that certain easement, dated June 4, 1971, and recorded in Volume 624, Page 12, Real Properties Records, Denton County, Texas, said Easement encumbering lands located in the M. Yoachum Survey, Abstract No, 1442, Denton County, Texas, and generally located at 307 North Loop 288, and declaring an effective date. The Public Utilities Board will consider this item on October 14, 2013. U. Consider adoption of an ordinance abandoning and vacating a Sanitary Sewer Easement (the "Easement "), granted by Henry S. Miller Company, Trustee to the City of Denton, Texas, pursuant to that certain easement, dated December 18, 1973, and recorded in the Volume 695, Page 350, Real Property Records, Denton County, Texas, said Easement encumbering lands located in the Gideon Walker Survey, Abstract No. 1330 and the Moreau Forrest Survey, Abstract No. 417, Denton County, Texas and generally located at the 5600 block of East McKinney Street, repealing City of Denton Ordinance No. 99 -226 related to the purported partial release of the easement, and declaring an effective date. The Public Utilities Board will consider this item on October 14, 2013. V. Consider adoption of an ordinance abandoning and vacating (1) that certain Public Utility Easement, granted to the City of Denton, Texas by Rex C. Cauble, pursuant to that certain Easement dated December 5, 1972, and recorded in Volume 735, Page 515, Real Property Records, Denton County, Texas, insofar and only insofar as such easement covers and encumbers .443 acre tract of land, as described on Exhibit "B ", attached hereto and made a part hereof (The "Exhibit B Abandonment Area "), and (2) that certain Public Utility Easement, granted to the City of Denton, Texas by Rex C. Cauble, pursuant to that certain easement, dated December 5, 1972, and recorded in Volume 735, Page 517, Real Property Records, Denton County, Texas, insofar and only insofar as such easement covers and encumbers 0334 acre of land, as described in Exhibit "A ", attached hereto and made a part hereof (the "Exhibit A Abandonment Area ") (The easements described above are collectively referred to herein as the "Easements) (The Exhibit A Abandonment Area and the Exhibit B Abandonment Area are collectively referred to herein as the "Abandonment Area "), said easements encumbering certain lands located in the A. White Survey, Abstract No. 1406 and N. Wade Survey, Abstract No. 1407, Denton County, Texas, as more particularly described in the Easements, and generally located approximately 1600' northwest of the intersection of North Elm Street and Loop 288, and declaring an effective date. The Public Utilities Board will consider this item on October 14, 2013. W. Consider adoption of an ordinance of the City Council of the City of Denton, Texas, approving guidelines for operation of the City of Denton Home Improvement Program and eligibility criteria; authorizing expenditures in excess of $50,000 for projects meeting program guidelines and criteria; and providing for an effective date. City of Denton City Council Agenda October 15, 2013 Page 7 X. Consider a request for an exception to the Noise Ordinance for the purpose of performing music and announcements during the 25th Annual Holiday Lighting Festival to be held at the Denton Downtown Square. The Festival will begin at 5 p.m. and end at 9:30 p.m. on Friday, December 6, 2013. The request is for a variance in decibels, from 70 to 75 decibels for amplified sound. Staff recommends approving the request. Y. Consider adoption of an ordinance approving an agreement between the City of Denton, Texas, and the Denton Chamber of Commerce regarding an Economic Development Partnership; and providing an effective date ($227,467). Z. Consider adoption of an ordinance of the City of Denton, Texas, authorizing the City Manager, or his designee, to execute a Purchase Agreement (herein so called), as attached to the ordinance and made a part thereof as Exhibit "A ", by and between the City of Denton (the "City "), and Harlan Properties, Inc. (the "Seller ") contemplating the sale by Seller and purchase by City of (1) fee simple to a 4.69 acre tract; (I1) a utility and slope easement encumbering 0.56 acre; and (III) a utility and drainage easement encumbering 0.02 acre, said tracts located generally in the 2400 block of South Bonnie Brae Street, in the A. Tompkins Survey, Abstract Number 1246, in the City of Denton, Denton County, Texas (the "Property Interests ") for the purchase price of Two Hundred Thousand Dollars and No Cents ($200,000.00); authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the Purchase Agreement; authorizing the expenditure of funds therefor; and providing and effective date. (Bonnie Brae Street Widening and Improvements — Parcel 25) AA. Consider a request for an exception to the Noise Ordinance for the purpose of the Industrial Street International Pop Festival (AKA Geezer Palooza), a music festival to benefit Serve Denton. The event will be held at 103 - 115 Industrial Street, on Sunday, October 20, 2013, from noon to 9 p.m. The exception is specifically requested to increase sound levels from 70 to 75 decibels and for amplified sound on Sunday. Staff recommends approval of request. BB. Consider a request for an exception to the Noise Ordinance for the purpose of amplified music for the 2nd Annual WakePoolooza to be held on Avenue A, between Mulberry and Hickory, on Saturday, October 19, 2013, beginning at 3 p.m. and concluding at 10 p.m. This request is for increased amplified sound from the allowable 70 decibels to 75. Staff recommends approval of the request for amplified sound up to 75 decibels. CC. Consider a request for an exception to the Noise Ordinance for the purpose of having music played during the Denton Plaza Party located at 508 S. Elm Street on two Saturdays, November 9 and November 16, 2013, from noon to 10 p.m. This request is for an extension in decibels from 70 to 75. Staff recommends approving 75 decibels to 10 p.m. City of Denton City Council Agenda October 15, 2013 Page 8 DD. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a temporary access permit (the "Permit "), by and between the City of Denton, Texas and EagleRidge Operating, LLC, a Texas limited liability company ( "EagleRidge "), granting a license to EagleRidge to temporarily access certain City owned lands located in the James Edmonson Survey, Abstract Number 401 and the James L. Harris Survey, Abstract Number 555, located generally 1,800 feet southwest of the intersection of South Bonnie Brae and Vintage Boulevard, City of Denton, Denton County, Texas, in connection with the overland transport of water for gas well operations; and providing an effective date. EE. Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Cooperative Purchasing Program Agreement with the University of North Texas Murphy Center for Entrepreneurship under Section 791.001 of the State of Texas Government Code, to authorize City of Denton contracts for the purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 5382 — Interlocal Agreement with the University of North Texas Murphy Center for Entrepreneurship in the amount of $26,400). FF. Consider approval of a resolution for a change in Atmos Energy Corporation, Mid -Tex Division's ( "Atmos ") rates as a result of settlement between Atmos and the Atmos Texas Municipalities ( "ATM ") under the rate review mechanism; and providing an effective date. GG. Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the constriction of the Southwest Elevated Storage Tank for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (Bid 5350— awarded to Landmark Strictures I, L.P. in an amount not to exceed $5,074,000). HH. Consider approval of the minutes of: September 10, 2013 September 17, 2013 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. Consider adoption of an ordinance authorizing the City Manager, or his designee, as Denton's authorized representative, to accept on behalf of the City of Denton an offer from the Texas Department of Transportation (TxDOT) relating to a grant supplement for preparation of a Master Plan for Airport Development at the Denton Enterprise Airport; confirming agreement to pay additional project cost in the amount of $114,241; and, providing an effective date. The Airport Advisory Board recommends approval (4 -0). B. Consider adoption of an ordinance of the City of Denton authorizing the City Manager, or his designee, to execute on behalf of the City of Denton an acceptance of an offer from the Texas Department of Transportation relating to a grant for the Routine Airport Maintenance Program; authorizing the City Manager City of Denton City Council Agenda October 15, 2013 Page 9 to expend funds provided for in the grant program; and, declaring an effective date (TxDOT Project No.: AM 2014DNTO and CSJ No.: M1418DNTO). The Airport Advisory Board recommends approval (4 -0). 6. PUBLIC HEARINGS A. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, approving a Specific Use Permit to allow a Basic Utility; a DME electric substation, on approximately 5.44 acres of land within a Regional Center Commercial Downtown (RCC -D) zoning district classification and use designation, located on the north side of Pockrus Page Road, east of I -35, and directly west of the DCTA rail line, within the City of Denton, Denton County, Texas; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability clause and an effective date. (513 -0002) The Planning and Zoning Commission recommends approval (6 -0). B. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending Subchapter 35.13.7.B.2 of the Denton Development Code pertaining to landscape maintenance standards; and providing for a penalty in the maximum amount of $2000.00 for violations thereof, severability and an effective date. (D(Al2 -0001) The Planning and Zoning Commission recommends approval (6 -0). C. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification; with an overlay on approximately 10.112 acres of land. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive, in the City of Denton, Denton County, Texas; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing for a severability clause and an effective date. (Z13 -0003) The Planning and Zoning Commission made a motion of approval, however the motion failed (2 -3). D. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, approving a Specific Use Permit to allow an initial 51,200 square foot office building, with expansions proposed in the future, to include two (2) additions of approximately 16,000 square feet each, for a total of 83,200 square feet within a proposed Neighborhood Residential Mixed Use (NRM[_J) zoning district classification and use designation. The approximately 10.112 -acre property is located at the southwest corner of Teasley Lane and Pennsylvania Drive, within the City of Denton, Denton County, Texas; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing for a severability clause and an effective date. (513 -0001) The Planning and Zoning Commission recommends approval, with conditions (4 -1). 7. CITIZEN REPORTS City of Denton City Council Agenda October 15, 2013 Page 10 8. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. B. Possible Continuation of Closed Meeting under Sections 551.071 - 551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Denton, Texas, on the day of 2013 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: October 15, 2013 DEPARTMENT: Planning and Development ACM: John Cabrales Jr. SUBJECT Receive a report, hold a discussion, and give staff direction on the criteria to Tree Trusts mitigation option in Subchapter 35.13.7.A of the Denton Development Code (DDC), and a recommendation of amendments to Subchapter 35.13.7.A.7.f specifically as related to tree mitigation standards for Tree Trusts. BACKGROUND Staff has prepared an update on the Tree Trust mitigation option currently stipulated in the Denton Development Code (DDC) Section 35.13.7.A.7.f. Tree Trusts is one of four mitigation options, along with tree - planting, payment into the Tree Fund and /or Alternative Tree Preservation Plan, for Protected and /or Large Secondary tree removal. This option is one that has previously not been utilized by developers, which is why staff has brought forward a request to develop criteria to make this option available and more user- friendly to the development community. Staff and the project contractor, Michael Sultan with Davey Resource Group, propose the following recommendations for consideration regarding the Tree Trust mitigation option, including: • Identifying and registering private landowners who want to create a conservation easement on their property and potentially sell tree credits, while also identifying land that the City would be interested in acquiring to offer a tree bank for future developers to utilize. • Creation of canopy conversions from diameter breast height (dbh), on which to base a value for tree credits available for land preservation or donation, and include the environmental benefits associated with the total area of canopy coverage per acre. • Recommend ordinance revisions to Section 35.13.7.A.7.fi of the DDC to open up the requirements of this Subsection that currently only allow for Cross Timbers forests participation in Tree Trust and to include other forest types that will maximize the potential for greater forest preservation and offering value to preservation efforts of diverse forest habitats in Denton. In 2004, the City of Denton approved DDC, Section 35.13.7 - Tree Preservation and Landscape Requirements. As part of the newly adopted ordinance, a section referred to as Tree Trusts, Agenda Information Sheet October 15, 2013 Page 2 35.13.7.A.Tf, was approved as one of four options for tree removal mitigation to developers. The other three options being: payment in to the Tree Mitigation Fund or Tree Fund; replanting the number of inches required for mitigation back on the site after development; or recieve approval for an Alternative Tree Preservation Plan (ATP) through the Planning and Zoning Commission. Tree Trusts The DDC has established the following criteria for Tree Trusts. According to Section 35.13.7.A.f Tree Trusts criteria are: i. Areas of a minimum one acre that have the characteristics of Cross Timber Forests are eligible to be classified as a Tree Trust. ii. Designation of a Tree Trust and transfer of tree credits shall be approved by the Denton Review Committee (DRC) Chairman. iii. Tree Trusts shall be preserved with a permanent easement that shall limit any future land disturbing activity or constriction that would impact and /or damage the tree(s) and shall run with the land and be binding upon all successors and assigns of the current owner. Methods for the long -term conservation of said trees may include permanent conservation easements, restrictive covenants, or other such legal mechanisms. iv. Only portions of a Tree Trust not designated towards tree credit may be used for mitigation as identified on this Subsection. V. Trees that are required to be preserved in compliance with other development regulations shall not be credited towards the Tree Trust. vi. Areas that are un- developable, including but not limited to undeveloped floodplain, wetlands and riparian areas, shall not be designated as Tree Trusts. On October 16, 2012 staff met with Council to discuss hiring a contractor to formalize the processes which will allow developers to use the Tree Trusts mitigation option available in Section 35.13.7.A.7.f of the Tree Preservation and Landscape Requirements. Council subsequently approved and requested that staff provide continual updates as to the progress for developing this process. On February 5, 2013 staff met with Council to provide an update on the Tree Trust tree mitigation option. Staff discussed that a potential contractor was contacted, and staff met with Purchasing Department personnel and Legal to begin the hiring process. In May 2013, Davey Resource Group's Michael Sultan was hired to assist the City with making updates to the Tree Trust mitigation option that would greater facilitate it's use for the development community. Staff immediately began making appointments with internal City departments and external partners. The purpose of these meetings was to identify any unforeseen opportunities and take into account concerns that could arise from a variety of perspectives. Staff and Mr. Sultan met with Legal, Real Estate, Storm Water, Parks and Recreation, Economic Development, Denton developer organizations, and the Elm Fork Master Naturalists. The intention of these meetings was to discover how best to facilitate the use of Tree Trusts Agenda Information Sheet October 15, 2013 Page 3 mitigation option in the future and tie up any loose ends that could slow down the process or worse yet, render it ineffectual. On June 14, 2013 staff provided Council with an Informal Staff Report (ISR) stating that Mr. Sultan was hired to develop a process and checklists making Tree Trusts more user- friendly. The ISR stated that the contract's scope of work had 5 phases for completion; project initiation and interviews, analysis and research, summary of reports and recommendations, creation of an accounting system, and review and presentations. Currently, the project is at the end of phase 3; reports and recommendations. The final two phases will proceed based on the direction Council provides staff and Mr. Sultan. RECOMMENDATION Staff recommends moving forward with identifying and registering private landowners who want to create a conservation easements, creation of canopy conversions, and ordinance revisions to Section 35.13.7.A.7.fi of the DDC OPTIONS 1. Approve the Tree Trust criteria as presented. 2. Make amendments to the Tree Trust criteria 3. Recommend no actions at this time. FXUTRITC Report from consultant, Mike Sultan with Davey Resource Group. Respectfully submitted: I Brian Locldey, AICP, CPM Planning and Development, Director Prepared by: Angie Kralik Urban Forester 1 1 1 1 G��1Illlty 1111 111111 IIII 111111 11111111 ul uuuuuu uuuuuu � � � uuuuuu " °IIII October 2013 iME/ The City of Denton, Texas Tree Trust Research and Analysis October 2013 Prepared for The City of Denton, Texas Angela Kralik Urban Forester 223 N. Elm Street Denton, TX 76201 (940) 349 -8337 Prepared by Davey Resource Group A Division of The Davey Tree Expert Company 7627 Morro Rd. Atascadero, California 93422 Phone: 805- 461 -7500 Toll Free: 800 - 966 -2021 Fax: 805 - 461 -8501 www.davey.com /drg �14�Wle of Contents ExeoudveGummary -----------. |ntnoduodon---------------- Phase One: GtakehoNer|ntenviewo --- Internal Stakeholders .......................... External GtakhoNem.......................... PhaoeTwo:ReoeanchandAnalyois --- PeerCkeo -------------- Land Conservancies and Land Trusts Tree Valuation Methods ..................... |nitia|Reoommendadono --------- rhe City ofoemon, Tree rmst Research and Analysis October 201.3 1 2 3 3 4 5 5 5 G 7 J IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII MMEM51 The City of Denton recently partnered with the Davey Resource Group (DRG) to conduct research and deliver recommendations for possible revisions to Denton's development code provision, Tree Trust, an alternative tree mitigation option. The project was driven by a need to identify and understand why the development community has not utilized the option to create tree trusts since this provision was first offered in 2003. With this understanding, Denton's primary objective is to revise the Tree Trust provision, to define the process of converting land into a tree trust and to establish the best format for determining the value of the trees on the property designated for preservation. The first phase of the project included two parts: a background review of the Denton Development Code, Section 35.13.7.A7 — Tree Preservation and Landscape Requirements, as well as a series of stakeholder interviews. DRG began by analyzing the components of the City's tree mitigation regulations and the specific language that describes Tree Trusts. Many initial questions were raised regarding general incentives for preserving land, the processes involved in preserving land, the issue of banking and / or selling tree credits, and determining the appropriate method of valuating trees located on the land being considered for preservation. DRG then conducted interviews with both internal and external stakeholders. Internal stakeholders provided valuable input regarding the history of Tree Trusts, the past success of different forms of land preservation, legal considerations of preserving land and the banking and sale of tree credits, varying levels of environmental sensitivity, and tax implications. External stakeholders shared their concerns about the design of Tree Trusts, and the complex process that often can accompany creating a conservation easement. The following list of Stakeholders represents those who participated in the interviews: Planning and Development Department Real Estate Department Legal Department Stormwater Department Parks and Recreation Department Economic Development Department Development Community Roundtable For the second phase of the project, DRG focused on the experiences of other cities and potential land trust partners, and the different incentives that could support land preservation. DRG compared Denton to other peer cities, not as much based on the size or population of the city but more by what provisions in their development code resemble Denton's Tree Trust option and other forward thinking components. The Cities of Dallas, Fort Worth, and San Antonio represent three municipalities with unique development code metrics regarding trees and development. Those metrics include measures for preserving land and protecting existing tree canopy. Through this process, City of Denton and Davey Resource Group have identified opportunities to expand the scope and the effectiveness of Denton's Tree Trust. With an eye towards aligning the preservation of tree canopy with other city initiatives, DRG will present recommendations to Denton's City Council for how to revise the City's Tree Trust. TEie City of Denton, Tree Trust Research and Analysis October 201. 3 J IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII iiillll iintirod a c iiiii oin City of Denton is the 25th largest city in Texas by population, with just over 120,000 residents. With almost 90,000 square miles, Denton ranks 16th among Texas cities by land area. Land is becoming increasingly important as Denton continues to experience rapid growth and development. Over the last twelve years, Denton's population has increased by approximately forty five percent. Recognizing growth trends in other North Texas cities, in 2003, City of Denton took proactive measures to preserve land and the southern extent of the Cross Timbers ecosystem and forest. By designing the Tree Trust option within the Landscaping and Tree Preservation regulations of Denton's development code, the City created an opportunity for the development community to offset the effects of land development and tree removal by permanently preserving land with characteristics of cross timbers forest. Denton was a pioneer in considering the preservation of wooded property as a method of tree mitigation. At that time, only City of Dallas had joined City of Denton in demonstrating the creativity to incentivize the preservation of trees and land as an alternative to traditional tree mitigation options. Denton continues to be a leader in further developing urban and community forestry goals and objectives. Most importantly, Denton has recognized the importance of tree canopy. This idea has been supported by the landscaping credit created for new developments that incorporate tree and canopy preservation, and through the financial investment made by the City to map Denton's existing tree canopy cover. These ideas and initiatives have placed Denton in the top tier of Texas cities making a commitment to protecting their community forest resource. With an astute urban forester and the support of the City's department directors and elected officials, Denton has positioned itself to continue being a leader among Texas cities that recognize the important contributions trees provide at a community level. By partnering with Davey Resource Group, Denton has taken a proactive approach to reviewing and analyzing a very specific but critical section of the development code that ultimately speaks to many of the broader reaching goals and objectives of the City. There are obvious connections to other matters regarding trees, but the essence of Denton's Tree Trust can be found in the desire to increase park land and to protect environmentally sensitive areas. Individual trees and a healthy urban forest play important roles in the quality of life and the sustainability of every community. Research demonstrates that healthy urban trees can improve the local environment and diminish the impact resulting from urbanization and industry (Center for Urban Forest Research). Trees improve air quality, reduce energy, slow and reduce stormwater runoff, and provide critical habitat for wildlife and promote a connection to nature for residents and visitors alike. In addition to these direct improvements, healthy urban trees provide health and educational benefits to students. Attention Deficit Disorder (ADD) symptoms in children are relieved after spending time in nature; the greener the setting, the more the relief (Faber, 2001). Trees support a more livable community, fostering psychological health and providing residents with a greater sense of place (Ulrich, 1986; Kaplan, 1989). Community trees, both public and private, soften the urban hardscape by providing a green sanctuary, making City of Denton a more enjoyable place to live, recreate, study, and learn. Denton strives for excellence in advancing environmental stewardship and sustainability. Concepts of sustainability are woven throughout the City's development code and environmental programs. It is Davey Resource Group's intent to assist City of Denton by building on past successes and in further developing Tree Trust options. More specifically, DRG will support Denton City Council in considering the best method for estimating the value of trees, and to streamline the process for developer and land owners interested in preserving land through Denton's Tree Trust. TEie City of Denton, Tree Trust Research and Analysis October 201. 3 J IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII IS r, Davey Resource Group conducted numerous stakeholder interviews to gain insight into how different city departments impact trees and how they view the Tree Trust options, as well as how the development community understands Tree Trusts. This part of the project provided a great opportunity for City of Denton employees, developer and real estate investors, and DRG to share experiences and information regarding trees, development issues, and environmental initiatives. Working with Denton's urban forester and other members of the Planning Department, DRG created a list of city departments that were vital in deconstructing the many aspects of the Tree Trust— creating conservation easements or other vehicles for preserving land, questions about the ability to bank and / or sell tree credits, and the current method and possible future alternatives for valuating trees. These interview and meetings were incredibly helpful both to Denton and to DRG. They allowed great dialogue about what Denton really hopes to accomplish with the Tree Trust. Legal Department. It was important to address any legal questions early in the process, to ensure that Denton and DRG were pursuing viable options to revise the Tree Trust language. What came out of this discussion helped define how the City should view tree banks and the sale of tree credits, both from standpoint of private developer or landowner and from the City. Private developers and landowners have the ability to create tree banks and to sell tree credits, based on the final methods of tree valuation by the City. City of Denton has the ability to create tree banks and to sell tree credits, only when the city has purchased land utilizing monies from the general fund. Land purchased by the City utilizing tree mitigation fund monies is not eligible for the resale of tree credits. Real Estate Department. Denton's Real Estate Department was most helpful in providing a historical reference of at least one conservation easement already existing in Denton. Important points during this discussion included utilization of the land and tax implications. Additionally, the Real Estate Department helped coordinate a meeting with a local land developer interested in exploring how he might entertain the use of a Tree Trust. This also provided us with a sample scenario of how we might expand and improve the current Tree Trust options. Parks and Recreation Department. Parks and Recreation management described some of the benefits and concerns related to one park site with an existing conservation easement, and ideas for opportunities to align city park goals and objectives with future Tree Trust opportunities. They presented broad ideas to consider that included `connecting the dots' and extending the veloweb and creating value for a certain area of tree canopy. Economic Development Department. This interview centered primarily on the ability for land developer and private landowners to realize tax incentives for creating conservation easements. We discussed Chapter 380 of the Denton Development Code and Denton's tax abatement policy. Additionally, we reviewed an example of a small acreage property in the center of the City where land had been protected, as an alternative to large tracts of land typically thought of when encouraging land preservation associated with offsetting large scale tree removal. There may be equal or greater value in preserving small tracts of land in higher density urban areas. Stormwater Department. DRG's interview with the Stormwater Department focused on issues related to the environment and the ecosystem services provided by Denton's trees. This interview allowed DRG TEie City of Denton, Tree Trust Research and Analysis October 207. 3 J IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII to dig deeper into some of the intricacies of the Tree Trust issue, including overall tree canopy cover versus tree canopy cover as it relates to environmentally sensitive areas (ESAs), riparian buffers, and floodplain and developed floodplain. 40% of City's 19% of canopy cover is within ESAs and riparian buffer One of greatest contributions and ecosystem benefits provided by trees is the interception of rain water and the abatement of stormwater runoff Need some sort of conversion from diameter at breast height (dbh — the standard measure of tree size) to canopy 111111' ° ° ° °� iiiiii ° °� iiiiii 111111 " " "� ° IIIIII IIIIII 111111 iiiiii ° °� Inviting members of Denton's development community to the table was a key component in identifying ways to revise and promote the use of City's Tree Trust. DRG was fortunate to have an opportunity to interview local land developers and builders regarding their understanding of Denton's Tree Trust and how it can benefit and be applied to their projects. There was an enthusiastic willingness to participate in the process, and it was evident that they appreciated the City seeking their input. This group identified three broad questions for the City to consider: 1. Would the City assist landowners with the cost to inventory trees on property they could register as a tree bank? 2. Would the City reconsider how they view flood plain versus floodway, and expand areas eligible for credit? 3. What is zoning for percentage of canopy that is not located in the floodplain? TEie City of Denton, Tree Trust Research and Analysis October 201. 3 J IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII IIII, III " "'1" wo .............. lll�Reseaiirdh aind AiinaIIIysiiis Through a review of peer cities in Texas and other regions of the United States and Texas land conservancy and land trust organizations, DRG was able to organize and frame the information that helped provide the basis for our initial recommendations. 111111 °° II° 'lull IIIIIP ° °° DRG began by reviewing ordinances and programs from other regions within the United States representing urban forestry initiatives that historically have been supported at a higher level. What we found were excellent programs, but they did not resemble Denton's urban forest characteristics, nor do they share the same environmental challenges or level of at -large awareness or acceptance of the ecosystem services provided by a community's trees. For that reason, we narrowed our focus to ordinances from other progressive cities in Texas where they have incorporated either land and tree preservation incentives similar to Denton's Tree Trust or where they have emphasized tree canopy cover as an important metric regarding development and trees. Dallas, Texas. In 2001, City of Dallas passed an amendment to their tree ordinance, providing an incentive to preserving land and trees. The provision allowed land developers to earn credit towards their tree mitigation requirements by preserving land that also contained protected trees, as defined by the City's tree ordinance. The concept was based on a matrix of the amount of land preserved in comparison to the overall size of the development, and the total number and size of the protected trees within the land identified for preservation. The preserved land could be either on -site or off -site. The land could be preserved either as a conservation easement or as a donation to the City. There are very few instances where developers have utilized this tree mitigation option, but it has been somewhat successful in promoting the preservation of land and trees. Fort Worth, Texas. In 2006, Fort Worth was the first city in Texas to create a tree preservation ordinance that was based on the amount of tree canopy on the site. It was, and still, is regarded as innovative in that it abandoned diameter at breast height (dbh) or caliper inches as the standard unit of measure for trees on development sites. The ordinance focused on the amount of existing canopy, limiting the percent canopy reduction allowed and requiring new trees to be planted that would be expected to re- establish a certain percentage of overall canopy on the site within a certain period of time. The ordinance included estimates of mature tree canopy sizes based on the type of tree — small, medium, or large. San Antonio, Texas. Similar to Fort Worth, San Antonio amended their tree ordinance in 2010 to include tree canopy cover requirements. IIIIII�iiiii� i liiiil irid 1111 iii Land conservancies and land trusts are organizations established to manage lands that have been protected through various land conservation efforts. Most often, this pertains to land protected by a formal conservation easement. DRG researched several Texas land conservancies and land trusts. Additionally, we interviewed The Texas Land Conservancy in Austin, Texas to gain more insight into how land conservancies operate and what type of experience they had in interpreting tax benefits associated with land preservation. It was apparent that most land conservancies agree to manage large tracts of land in less urbanized areas. That is not absolute, but that is most common. Additionally, fees often are associated to cover the costs of regular site visits to monitor the conditions on -site and potentially to allow TEie City of Denton, Tree Trust Research and Analysis October 201.3 J IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII for some basic management, depending on any allowed uses or other agreements that are a part of the land protection. The broader goals of most land conservancies are to help preserve natural areas, protect native plant and animal habitats, and reduce the fragmentation of land. In researching the potential tax benefits, federal and state law does allow for some tax benefit when land has been encumbered by a conservation easement or other protected status, but the exact benefits available are vague and potentially costly to evaluate. There are local tax benefits available as well, however many of these are available only for a limited number of years and not in perpetuity. Va1111 ° tiii a�ri 111 vletIII One of the most significant elements missing from the Tree Trust was the absence of a clear method for valuating the trees on the land being protected. To understand the basis for determining tree mitigation costs, you have to explore early tree mitigation regulations. Most, if not all, ordinances were designed to function as tree replacement ordinances. For this reason, tree mitigation fees were based on the estimated replacement value of a tree of comparable size, or a combination of replacement trees to meet the same total number of caliper inches as the tree that was removed. To accomplish this some ordinances carried a fixed dollar amount per caliper inch, and some ordinances included unique formulas It is difficult to find consistency or relevance among these dated methods. While there are several newer methods for valuating trees, arborists and urban forestry professionals agree that the majority of the benefits received from trees are tied directly to the tree canopy. Below is a comparison of different tree values derived from the same tree population, on a site currently under development. The developer is considering creating a conservation easement, and the tree values below were calculated for the trees that would be protected. $182,301 Tree Canopy Conversion. This method applies the same landscape credits available in Denton's development code for preserving existing tree canopy on a development site. Landscape Appraisal Value. Landscape Appraisal Value is a well- regarded method in the landscape industry for determining and assigning a value for landscape trees. There is a guide available that explains in detail how to properly valuate trees. This guide was published by the Council of Tree and Landscape Appraisers. National Tree Benefit Calculator. Modeled after i -Tree Streets, the National Tree Benefit calculator estimates the annual ecosystem services provided by a tree, of certain size and species. To create a more meaningful value, we are taking the annual National Tree Benefit Calculator value and multiplying that by twenty, to represent a grow -out model. i -Tree Vue. This method is based on interpreting 30m resolution aerial photographs to isolate tree canopy and determine the annual ecosystem services of the entire tree canopy within the study area. For this project, we estimated the overall tree canopy cover for the city, and we divided it by the total number of acres for the city. We multiplied the average per acre tree canopy value by twenty, to represent a grow -out model. TEie City of Denton, Tree Trust Research and Analysis October 207.3 J IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Illlf� t.ecoiimiimeiinda,tiiiii oiins After compiling all of the data and completing the first two phases of this project, Davey Resource Group is pleased to provide the following recommendations for consideration by Denton's City Council. 1. Streamlined process for dedicating or protecting land: a. Identify and register private landowners who want to create a conservation easement on their property and potentially sell tree credits b. Identify land that the City would be interested in acquiring, either through purchase or through donation, and allow a fee simple donation of the land as a `tree trust' outside of a conservation easement, and that might also provide a tree bank for future developers to utilize or from which the City can also sell tree credits (if the City purchased the land) 2. Utilize one of the following methods to determine a value for tree credits available for land preservation or donation a. Tree Canopy Conversion b. Landscape Appraisal Value c. National Tree Benefit Calculator d. i -Tree Vue 3. Identify potential ordinance revisions that could contribute to greater success of Tree Trust and related initiatives (e.g. ability to accept or allow land adjacent to ESAs and riparian buffers, and giving consideration to the value of preserving a more diverse forest type than just cross timbers). TEie City of Denton, Tree Trust Research and Analysis October 201. 3 Wou'II<stl,G,sk)11� 4. AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Planning and Development ACM: John Cabrales, Jr. SUBJECT Receive a report, hold a discussion and establish the criteria for the selection process to appoint members for the Tree Fund Advisory Committee. PROPOC A T , Staff has developed criteria for Council's consideration in the appointment of a Tree Fund Advisory Committee (TFAC). The TFAC will be responsible for developing criteria for expenditures of Tree Fund money, provide recommendations of potential land acquisitions within the City limits and ideas for increasing canopy coverage. In the event land is to be purchased, the criteria will then be used by City Staff to make recommendations to the City Council for land acquisition by the City. Land acquisitions purchased through the Tree Fund program will benefit Denton citizens through the preservation of land for low- impact recreation use, reduction of storm water runoff, watershed and water quality protection, air quality improvements and wildlife habitat corridor protection. BACKGROUND Deposits are made into the Tree Fund by applicants that choose the option to make payment into the Tree Fund when removing trees that require mitigation on properties being developed. The tree fund payment is calculated as $125 per mitigated inch per Subchapter 35.13.7.A of the Tree Preservation and Landscape Requirements. Subchapter 35.13.7.A.e states, "The City shall administer the Tree Fund. Tree Funds shall be used to purchase, plant and maintain trees on public property, to preserve wooded property that remains in a naturalistic state in perpetuity, to perform and maintain a city -wide tree inventory and to educate citizens and developers on the benefits and value of trees." In order to determine expenditures of Tree Fund monies, staff proposes an ad hoc City Council appointed committee to develop a process and criteria for making recommendations on the expenditures of Tree Funds. Staff recommends that seven citizens be chosen and that none of the citizens currently serve on more than two City boards, commissions or advisory groups. Given the time needed to develop the criteria, staff wants to avoid scheduling conflicts with existing Boards and Commission and serving on multiple Boards and Commissions may prove to be a Agenda Information Sheet October 15, 2013 Page 2 challenge. Of the seven - member committee, staff requests that three members meet one of the following requirements: I. One member have a background in natural resources (i.e. such as education and training as an arborist, forester, horticulturist, botanist, landscape architect, or some form of environmental science); and 2. One member have a planning/land -use background; and 3. One member of the development community or someone with a development background. As noted in the Denton Development Code, the focus of the Tree Fund Advisory Committee (TFAC) is to develop programs for the purchase, plant and maintain trees on public property, to preserve wooded property that remains in a naturalistic state in perpetuity, to perform and maintain a city -wide tree inventory and to educate citizens and developers on the benefits and value of trees." In the event tree fund money will be spent to purchase property, the TFAC will create a matrix, which will be used by staff when selecting potential properties for purchase. Staff recommends that the committee be in place by January of 2014 and will report back progress as necessary. Ultimately, the TFAC will develop the criteria for spending Tree Fund monies. It is important that the individuals chosen be committed to the interests of the City. They should also be flexible and able to work with others from differing backgrounds. Committee members should be willing to take additional educational courses that will facilitate the development process of the Tree Fund criteria. Staff will provide the forum for the meetings and any scientific expertise required. OPTIONS 1. Approval of the selection process for TFAC membership 2. Make amendments to the TFAC selection process 3. Recommend no actions at this time. Respectfully submitted: Brian Locldey, AICP, CPM Planning and Development, Director Prepared by: Angie Kralik Urban Forester AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Solid Waste ACM: Jon Fortune it- SUBJECT Consider adoption of an ordinance approving a First Amendment to a Lease Agreement between the City of Denton, Texas and Master Recycling of Texas, Inc. to be executed by the City Manager relating to a certain 3.5 Acre Tract of land situated in the Gideon Walker Survey, Abstract Number 1330, and a certain 1.924 Acre Tract of land situated in the G. Walker Survey, Abstract Number 1330, in the City of Denton, Denton County, Texas; and providing an effective date. BACKGROUND A lease agreement with Master Recycling of Texas, Inc. (Master Recycling) and the City of Denton, for a tract of land on the Solid Waste Department property adjacent to the Landfill was approved by City Council on June 4, 2013. Master Recycling will be producing ethanol fuel from containerized and bulk liquids containing sugars. Master Recycling's original lease agreement provided them the option to lease two additional buildings, which they wish to exercise at this time. The rental rates for these buildings were established in the original lease agreement. The annual rate for Bldg. 101 is $4.75 per square foot per year and the annual rate for Bldg. 102 is $3.95 per square foot per year for the first five years, with a PPI escalator to be used to adjust the rate after that period. The proposed lease would be for an initial term of twenty years from the effective date of this amended lease. The lease may be extended for two additional ten year terms. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) PUB recommended approval of the transfer of Tetra Point's lease through the development of a new lease on March 25, 2013. Agenda Information Sheet October 15, 2013 Page 2 FISCAL INFORMATION The revenue will be deposited into the Solid Waste Fund. The annual lease revenue will be $83,659. EXHIBITS 1. Ordinance 2. First Amendment of the Lease Agreement Respectfully submitted, Vance Kemler, General Manager Solid Waste sAlegal \our documents \ordinances \13 \master recycling 1st amendment.docx ORDINANCE NO. AN ORDINANCE APPROVING A FIRST AMENDMENT TO A LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND MASTER RECYCLING OF TEXAS, INC. TO BE EXECUTED BY THE CITY MANAGER AND RELATING TO A CERTAIN 3.5 ACRE TRACT OF LAND SITUATED IN THE GIDEON WALKER SURVEY, ABSTRACT NUMBER 1330, AND A CERTAIN 1.924 ACRE TRACT OF LAND SITUATED IN THE G. WALKER SURVEY, ABSTRACT NUMBER 1330, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on June 4, 2013, the City Council of the City of Denton, Texas, approved Ordinance No. 2013 -143, which authorized execution of a Lease Agreement by and between the City of Denton, Texas, (Lessor) and Master Recycling of Texas, Inc., a Corporation (Lessee); and WHEREAS, Lessor and Lessee agreed to an Option in said Lease Agreement allowing Lessee to lease two additional buildings, and associated acreage, for the purpose of expansion of Lessee's processing centers; and WHEREAS, Lessee has exercised the Option for the lease of additional buildings and acreage, and the parties desire to alter the terms of the original lease; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to execute a First Amendment with Master Recycling of Texas, Inc., in substantially the form attached and incorporated herein by reference. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 1 cs sAlegaMur documen ts\contracts\ 13 \master recycling lease-sw-first amendment.doe STATE OF TEXAS COUNTY OF DENTON § FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND MASTER RECYCLING OF TEXAS, INC. This First Amendment to Lease Agreement (hereafter the "Lease Agreement") is made and entered into as of the Effective Date, as set forth below., by and between THE CITY OF DENTON, TEXAS (hereinafter sometimes referred to as "LESSOR" and/or "the City"), and MASTER RECYCLING OF TEXAS, INC. ("LESSEE"). WHEREAS, Lessor and Lessee entered a Lease Agreement on June 4, 2013 setting forth terms and conditions whereby Lessee would lease certain premises from Lessor for the purpose of construction and operation of a processing and ethanol production plant to receive containers and bulk liquids containing sugar conversion of those materials into an ethanol fuel, as well as other operations associated with containerized liquid drink products, which may include, but not be limited to, the packaging and repackaging of liquid drink products to return them to a marketable condition or for use in the production of ethanol; and WHEREAS, Lessor and Lessee agreed t Lessee to lease two additional buildings, and Mayhill Road, and known as Buildings 101 and expansion of Lessee's processing centers; and ) an Option in said Lease Agreement allowing associated acreage, generally located at 1001 102, Exhibits "C" and "D", for the purpose of WHEREAS, Lessee has exercised the Option for the lease of the additional buildings and acreage; and WHEREAS, Lessor and Lessee desire to alter the term of the original Lease Agreement in light of the exercise of the option; NOW, THEREFORE, Lessor and Lessee, intending to be legally bound, do hereby AGREE as follows to this First Amendment to that certain above referenced Lease and further agree that unless herein amended, the terms of the Original Lease of June 4, 2013 remain in full force and effect: ARTICLE 2 LEASE TERM 2.1.1 Primary Term. The Primary Term of this Lease Agreement shall be for a term of twenty (20) years from and after the Effective Date of this Lease Agreement Amendment, unless sooner terminated as provided for herein. a sAlegal\our docurnentskontracts\1 3\rnaster recycling lease-sw-first amendment.doc 2.1.2 Renewal Terms. I Provided that LESSEE is not in default, and provided that this Lease Agreement is otherwise in full force and effect, this Lease Agreement may be extended for two (2) additional terms of ten (10) years each. The decision to extend the Lease Agreement must be a mutual decision made by both LESSOR and LESSEE. Negotiations to extend this Lease Agreement are to begin at least one (I) year before the end of the Primary Term or the First Renewal Term (as the case may be) of this Lease Agreement, provided that the Lease Agreement is not in default at the time negotiations for extension are entered into. ARTICLE 3 RENTALS 3.1.1 Rentals. As to the leased property located at 1301 South Mayhill Road and depicted in Exhibits "A" and "B", the rental for these Lease Premises shall be SIXTEEN and ONE-HALF CENTS ($.165) per square foot, per year for the first five (5) years of the Lease Term. For purposes of this Lease Agreement the "Certificate of Occupancy Date" is the date upon which LESSOR issues the building temporary occupancy permit. The first monthly rental payment is due from LESSEE on June 1, 2013, to LESSOR, payable at the offices of LESSOR as set forth in Article 6.2 hereinbelow, on or before the first day of the first month, payable in advance, with equal payments of rental to be made on the first day of each month thereafter throughout the term of the Lease; provided however, that the rental rate will be 50% of the lease rate for the real property described in this Lease, from the Effective Date of the Original Lease (June 4, 2013) to whichever of the following two dates first occurs: the date of issuance of the final Certificate of Occupancy for an on-site building, or February 28, 2013. As to the leased property located at 1001 Mayhill Road, Buildings 101 and 102 and associated acreage, and depicted in Exhibits "C" and "D", the rental for these Lease Premises shall be as set forth in Article 2, Section 2.3. The first monthly rental payment is due from LESSEE on November 1, 2013, to LESSOR, payable at the offices of LESSOR as set forth in Article 6.2 hereinbelow, on or before the first day of the first month, payable in advance, with equal payments of rental to be made on the first day of each month thereafter throughout the term of the Lease; provided however, that the rental rate will be 50% of the lease rate for the real property described in this Lease, from the Effective Date of the Amendment to whichever of the following two dates first occurs: the date of issuance of the final Certificate of Occupancy for an on-site building, or January 31, 2014. LESSOR and LESSEE agree that the rental amount is also subject however, to the terms of Rental Adjustment (indexing) that is reserved in this Article 3.1. The rental rate set forth hereinabove is for purposes of the Lease and shall be defined as the "Initial Base Rental Payment." Such Initial Base Rental Payment will be the rental due under the Lease for years one (1) through five (5) of the initial twenty (20) year term of th6 Lease (the "Primary Term"). Prior to the commencement of the first (1 st) day of the sixth (6th) year of the Primary Term, and prior to the commencement of each additional five (5) year period thereafter throughout the entire We sAegakour dcicurnentslcontracts\13\rnaster recycling lease-sw-first arnendment.doc term of the Lease, including any renewal terms (a "Renewal Term"), the rental to be paid by LESSEE to LESSOR under the Lease shall be subject to adj'Ustment based upon adjustments in the consumer price index, as hereinafter defined. The initial base rental payment shall be adjusted upward, downward, or unchanged prior to the commencement of the sixth (6th) year of the Lease to conform to that certain United States Bureau of Labor Statistics "Producer Price Index" now known as Series ID# PCU531210531210602. That product is named: Real estate brokerage, nonresidential property leases including land leases. Its base date is December, 2009. The starting date, for purposes of this Rental Adjustment is June 1, 2013. The adjustment at the beginning of year six (6) of the Lease will be accomplished by multiplying the initial base rental payment by a fraction, the numerator of which shall be such index as of the most recent date published prior to the date of adjustment and the denominator of which shall be the most recently published index as of the Commencement Date, The adjustment for each subsequent five (5) year period will be calculated in a similar manner except that rather than using the initial base rental payment as the base rentals from which adjustments will be made, the rental figure for the then current year will be substituted for such initial base rental payment. In no five (5) year period may the rental be increased or decreased more than twenty-five percent (25%) of the rental applicable during the five (5) year period immediately preceding the five (5) year period for which an adjustment is to be made. If the index above referred to shall be discontinued, the parties hereto shall attempt to agree upon a substitute index or formula. In the event of dispute between the parties as to the amount of any adjustment, the rates shall be established through the dispute resolution procedures. IN WITNESS WHEREOF, this Lease Agreement Amendment has been executed by the duly authorized City Manager of LESSOR; and by the duly authorized officer of LESSEE, in multiple counterparts, each of which, for all purposes, shall be deemed an original and all of which shall evidence but one agreement. _4 EXECUTED this day from and after the P_' —day of June, 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY as 2013; but to be effective, ratified and confirmed, "LESSOR" THE CITY OF DENTON, TEXAS A Texas Municipal Corporation X so WIE GEORGE C. CAMPBELL, City Manager 4, sAlegal\our doc unientkontracts\ I 3\rn aster recycling lease-sw-first amendment.doc APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: IN WITNESS WHEREOF, this Lease Agreement has been executed by LESSEE in the presence of the undersigned witnesses, in multiple copies, each of which, for all purposes, shall be deemed an original and all of which shall evidence but one agreement. WITNESS: By: ATTEST: CORPORATE SECRETARY: By: APPROVED AS TO LEGAL FORM: By: LEGAL COUNSEL "LESSEE" MASTER RECYCLING OF 'I INC. A Texas Limited Liability Corporation By: V01z" Title: Date:. KK -4- 41 a Coleman. & Assoc. LWId SLIINC 'Ing IJ). B()x 68(), Dciaon,T cxa.+ 76202 phont, (910)565- 82t a FI,Ix (,) RONJON Lease Area 1.924 acres ofland FIELD NOTES to all of that certain tract of land situated in the G Walker Survey Abstract Number 1330, City of Denton, Denton County Texas and being a part of the called 4.62 acre tract described in the deed ftorn Derviiiss, LLC to the City of Denton recorded in Document Number 2013-84330 of the Real Property Records of Denton County, 1'exas and also being a part of" the called 84.819:3 acre tract described in the decd to tile City of Denton recorded in Volunic 243 1, Page 843 of the said Real Property Records; tl e subject parcel being more panicularly described by bearings based on the 'rexas Coordinate Systern of 1983, North ( I "ontral Zone-4202 as follows: BEGINNING at an "X" in concrete found at the Northwest comer of the tract being described herein at [tic Northwest corner of the said 4.62 acre tract oil the dedicated East right-of-way line of Mayhill Road as shown by the plat of R(-)NJ(-)N Group Business Park recorded in Cabinet Q, Page 350 of the Plat Record,,, of Denton (.'ounty,Texas "I'l-JENCE South 89 Degrees 33 Minutes 47 Seconds with the North line of the 4.62 acre tract a distance of 413,21 feet to a 112 inch iron rod found at the Northeast corner thereof; THENCE Southerly across the 84,8193 acre tract along the top edge of a graded area the following three Calls: I , South 43 Degrees 59 Minutes 21 Seconds East a distance of 34.47 feet to a 1/2 inch iron rod set with a yellow plastic cap stamped ' "COLEMAN RJILS 41701" (herein after referred to as 1/21RS); 2 South 04 Degrees 41 Minutes 13 Seconds East a distance of 133,48 feet to a 1 /21RS, 3 South 34 Degrees 19 Minutes 19 Seconds 'Nest a distance of 68.23 feet to a 1/21RS on the West line of" the, 84.8193 acre tract and the East line of the 4.62 acre tract; THENCE Westerly across the 4.62 acre tract tile along tile Southern edge of the graded area the folloWing three calls: I, South 70 Dogrecs 55 Minutes 40 Seconds West a distance ot'56,12 feet to a I 21RS: 2. North 89 Degree,,, 20 Minutes 28 Seconds West a distance of''Z9.61 feet In a I '21RS; 3. North 06 Degrees 19 Minutes 12 Seconds West a distance of 54,65 feet to a 1,;21RS oil the South line of Lot I -R, Block A. RONJON 6roup Business Park as shown by the plat: THENCE North 89 Degrees 22 Minutes 47 Seconds West with the South line of tile said I.ot I -R a distance of 273.35 feet to a P2 inch iron rod found at the southwest comer thereof and a reentrant comer of then 4.62 acre tract on the dedicated East right -of -way line of'Mayfull Road: THENCE North 01 Degrees 00 Minutes 57 Seconds East with the West line of the 4.62 acre tract saille being the West line of [,or I -R and with the said East right -of -way line a distance of 171,87 feet to the PLACE OF BEGINNING and enclosing 1.924 ayes of land. C! 11V 4 Page I of 2 z -W) 0 -K 0 ,�u "i � M .0 ull , r006 10 0 w 0 I U.1 9 Clf 00 V) CY • • ZO re. zo-m ,Lg'[L[ 3 uL g,O (A LAJ Z o z LAJ FM z 04 C4 v 0 W) w VA z 0 Ljj 0 V) 20 0 Z Z U D Lj LJ < CO V) S 04'41'13" i E CN z -019 u1i V) o 0 161. z 0 41 2 u I U.1 9 Clf 00 V) CY • • ZO re. zo-m ,Lg'[L[ 3 uL g,O 0 R 0 1 z z 71 D M a. CL uj V) w z 0 1 U, -, I I to I o u 0 con 0 y. eatr wo 0,U mx 0 C4 L'i 0 CL (A LAJ Z o z FM z z� z VA z 0 Ljj 0 V) 20 0 Z Z U D Lj LJ < CO C7 CN z u1i V) o 0 z 0 04 2 u ,Z -0 o LO I 0 Z to 0 .t x UJ 0 Cp 1,3 04 0 0 Y C�) 0 0 C� C. C� 1 4 o ol C,4 I eel It nd.9 tF - MO N C9 0 R 0 1 z z 71 D M a. CL uj V) w z 0 1 U, -, I I to I o u 0 con 0 y. eatr wo 0,U mx 0 C4 L'i 0 CL (A LAJ Z o FM z z� z w z 0 Ljj 0 V) 20 0 Z Z U D Lj LJ < C7 C, z u1i V) o 0 z 0 2 u AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance � —A ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Air Fair, Inc. for the payment and use of hotel tax revenue; and providing an effective date. ($10,240 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $10,240 for FY 20131-2014 and has been included in the Annual Program of Services. Respectfully submitted: C�111k- Chuck Springer, 349 -8260 Director of Finance \ \codad \departments\ legal \our documents \ordinances \13 \hot funds pyWair fair ordinance.doe ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON AIR FAIR, 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 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Air Fair, Inc. 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY am APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Pow MARK A. BURROUGHS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON AIR FAIR, INC. (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Air Fair, Inc., a legal entity incorporated under the laws of the State of Texas (the "AIR FAIR "): 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 %); 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, AIR FAIR is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with AIR FAIR, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and AIR FAIR agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by AIR FAIR under this Agreement, CITY agrees to pay to AIR FAIR a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to AIR FAIR 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: (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. Denton Air Fair, Inc PY2014 - Page 1 (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 period 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 quarter" 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 30 , 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 AIR FAIR an amount of money in each contract year equal to the lesser amount of. Fifty -Three One Hundredths percent (0.53 %) of the annual base payment amount, or the fixed contract amount of Ten Thousand Two Hundred and Forty Dollars ($10,240). This amount will be divided into two payments equal to 50% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The final payment will represent 50% of the fixed contract amount or the unpaid remainder of 0.53% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce AIR FAIR's current budget at any time during the contract period. Each payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to AIR FAIR of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each payment shall be paid upon receipt of the required reports and after the 25th of January 2014 and after the 25th of April 2014. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of AIR FAIR. Denton Air Fair, Inc PY2014 - Page 2 (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 AIR FAIR's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to AIR FAIR of the agreed payments of hotel tax funds specified above, AIR FAIR 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 authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the AIR FAIR may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in AIR FAIR's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the AIR FAIR for which hotel tax funds may be used shall not exceed that portion of the AIR FAIR's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. III. RECORD KEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) AIR FAIR shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of AIR FAIR in which the hotel tax funds shall be used by AIR FAIR. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to AIR FAIR any hotel tax revenues as set forth in Section I of this contract during any program year Denton Air Fair, Inc PY2014 - Page 3 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. (b) AIR FAIR acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in AIR FAIR with respect to the hotel tax funds paid by CITY to AIR FAIR under this Agreement. AIR FAIR 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. (c) Upon the application or consent of AIR FAIR, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of AIR FAIR, without approval of the City Council by ordinance. 3.2 Separate Accounts. AIR FAIR shall maintain any hotel tax funds paid to AIR FAIR 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. AIR FAIR shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by AIR FAIR. 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, AIR FAIR shall make such financial records available for inspection and review by the party making the request. AIR FAIR understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T 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 quarter thereafter, until all funds have been expended and reported to CITY, AIR FAIR 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., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. AIR FAIR 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. AIR FAIR shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of AIR FAIR's Board of Directors, as well as any other meeting of any constituency of AIR FAIR, at which this Agreement or any matter subject to this Agreement shall be considered. Denton Air Fair, Inc PY2014 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2014, and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse AIR FAIR for any contractual obligations of AIR FAIR undertaken by AIR FAIR in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse AIR FAIR, or to assume the performance of any contractual obligations of AIR FAIR, for or under any contract entered into by AIR FAIR as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), AIR FAIR 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, and 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; 4) a final accounting of all expenditures and tax funds on the day of termination. AIR FAIR will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by AIR FAIR 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 AIR FAIR; Denton Air Fair, Inc PY2014 - Page 5 (b) The insolvency of AIR FAIR, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by AIR FAIR for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or AIR FAIR 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 AIR FAIR 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 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 ¶ ¶4.3 or 4.4, AIR FAIR 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 AIR FAIR with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that AIR FAIR enters into any arrangement, contractual or otherwise, with such other entity, person or organization, AIR FAIR 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. AIR FAIR 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. AIR FAIR shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and AIR FAIR shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. AIR FAIR shall not be considered a partner or joint venturer with CITY, nor shall AIR FAIR be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. AIR FAIR 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION Denton Air Fair, Inc PY2014 - Page 6 WITH THE PERFORMANCE BY AIR FAIR 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 AIR FAIR, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. AIR FAIR 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: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 AIR FAIR Amanda Addington Denton Air Fair, Inc. 3201 Montecito Rd Denton, Texas 76205 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 AIR FAIR 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 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 Denton Air Fair, Inc PY2014 - Page 7 Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. AIR FAIR shall, at a minimum, provide insurance as follows: 1. $5,000,000 Commercial General Liability, or $5,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000 1$500,000 1$100,000) OR an Occupational Accident Insurance program if approved by the City's Risk Manager, and 3. $500,000 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 CITY. EXECUTED this day of 52013. ATTEST: an JENNIFER WALTERS, CITY SECRETARY THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEGAL FORM: CITY ATTORNEY 0 Denton Air Fair, Inc PY2014 - Page 8 ATTEST: LI-M Secretary APPROVED AS TO LEGAL FORM: Denton Air Fair, Inc PY2014 - Page 9 Denton Air Fair, hic. DAF 2014 Exhibit A ADVERTISING Radio $ 5,500 Printed Matter 3,040 Internet 1,700 $ 10,240 TOTAL $ 10,240 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance � —A ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitors Bureau) providing for the payment and use of hotel tax revenue; and providing an effective date. ($783,100 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $783,100 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: Chuck Springer, 349 -8260 Finance Director \ \codad \departments \legal \our documents \ordinances \13 \hot funds pyWchamber ordinance.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE (CONVENTION AND VISITORS BUREAU) FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitors Bureau) 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY i APPROVED AS TO LEGAL FORM: AT BN MARK A. BURROUGHS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE (CONVENTION & VISITORS BUREAU) (PY 2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Chamber of Commerce (Convention & Visitor Bureau), a non - profit corporation incorporated under the laws of the State of Texas (the `BUREAU "): 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 %); 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, BUREAU is well equipped to perform those activities through its Denton Convention and Visitor's Bureau; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with BUREAU, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and BUREAU agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by BUREAU under this Agreement, CITY agrees to pay to BUREAU a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to BUREAU 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: (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. CVB PY2014 HOT Fund Contract -- Page 1 (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 quarter" shall refer to any quarter of the calendar year in which this AVeement is in force. Contract quarters will end on March 31St, June 30th, September 30 , and December 31" 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 BUREAU an amount of money in each contract year equal to the lesser amount of Forty and Eighty -Six Hundredths percent (40.86 %) of the annual base payment amount, or the fixed contract amount of Seven Hundred Eighty -Three Thousand One Hundred Dollars ($783,100). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 40.86% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce BUREAU's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to BUREAU of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of BUREAU. CVB PY2014 HOT Fund Contract -- Page 2 (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 BUREAU's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to BUREAU of the agreed payments of hotel tax funds specified above, BUREAU 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 authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by BUREAU may be spent for day -to -day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in BUREAU's budget (Exhibit "A ") and each are directly attributable to work on programs, which promote tourism and the hotel and convention industry, and if each 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) BUREAU 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). BUREAU shall not utilize hotel tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in ¶ ¶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 or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) BUREAU shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of BUREAU funded by hotel tax revenue. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to BUREAU any hotel tax revenues as set forth in Section I of this contract during any program year of this CVB PY2014 HOT Fund Contract -- Page 3 Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) BUREAU acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in BUREAU with respect to the hotel tax funds paid by CITY to BUREAU under this Agreement. BUREAU 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. (c) Upon the application or consent of BUREAU, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of BUREAU, without approval of the City Council by ordinance. 3.2 Separate Accounts. BUREAU shall maintain any hotel tax funds paid to BUREAU by CITY in a separate checking account or with segregated fund accounting, such that any reasonable person can review the revenue source of any given expenditure. 3.3 Financial Records. BUREAU shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by BUREAU. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, BUREAU shall make such financial records available for inspection and review by the party making the request. BUREAU 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 the hotel tax funds, and within thirty days after the end of every contract quarter, BUREAU shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures made or copies of the invoice or receipts with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). BUREAU shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. BUREAU 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. BUREAU shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of BUREAU's Board of Directors, as well as any other meeting of any constituency of BUREAU at which this Agreement or any matter subject to this Agreement shall be considered. CVB PY2014 HOT Fund Contract -- Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2014 and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse BUREAU for any contractual obligations of BUREAU undertaken by BUREAU in satisfactory performance of those activities specified in ¶T2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse BUREAU or to assume the performance of any contractual obligations of BUREAU for or under any contract entered into by BUREAU as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), BUREAU 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 and 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; 4) a final accounting of all expenditures and tax funds on the day of termination. BUREAU will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by BUREAU 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 BUREAU; CVB PY2014 HOT Fund Contract -- Page 5 (b) The insolvency of BUREAU, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by BUREAU for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or BUREAU 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 BUREAU 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 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 ¶ ¶4.3 or 4.4, BUREAU 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 BUREAU with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that BUREAU enters into any arrangement, contractual or otherwise, with such other entity, person or organization, BUREAU 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. BUREAU 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. BUREAU shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and BUREAU shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. BUREAU shall not be considered a partner or joint venturer with CITY, nor shall BUREAU be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. BUREAU 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION CVB PY2014 HOT Fund Contract -- Page 6 WITH THE PERFORMANCE BY BUREAU 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 BUREAU, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. BUREAU 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: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 RT TRFAT T Denton Chamber of Commerce Denton Convention & Visitor Bureau Kim Phillips P.O. Box 1719 Denton, TX 76202 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 BUREAU 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 CVB PY2014 HOT Fund Contract -- Page 7 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. BUREAU shall, at a minimum, 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 ($100,000 /$500,000/$100,000), 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served, and 4. $500,000 Business Automobile Liability on any owned, non -owned or hired vehicles. 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 CITY. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY , 2013. THE CITY OF DENTON, TEXAS By: GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LE By/ BURGESS, CITY ATTORNEY DENTON CHAMBER OF COMMERCE By: President CVB PY2014 HOT Fund Contract -- Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: CVB PY2014 HOT Fund Contract -- Page 9 Exhibit A Denton Chamber of Commerce Convention and Visitor Bureau PY 2014 Budget ADVERTISING - OVERALL $ 441,375 Print, Internet, PR and Trade Shows $ 121,000 Event Magazine and Distribution $ 105,000 Salaries and Benefits $ 142,720 Travel, Training and Memberships $ 16,000 Office Equipment, Supplies & Rent $ 56,655 ADVERTISING - COMMUNICATIONS & SOCIAL MEDIA $ 165,800 Website $ 12,000 Marketing and Communications $ 44,000 Memberships and Professional Development $ 4,800 Salary and Benefits $ 105,000 ADVERTISING - CONVENTION & GROUP SALES & SERVICING $ 175,925 Print Advertising and Internet $ 11,000 Sales and Marketing Missions $ 9,000 Trade Shows and Conferences $ 17,000 Research $ - Site Visits and Fam Tours $ 2,500 Servicing $ 2,500 Bid Fees $ 4,000 Travel and Training $ 6,575 Membership and Professional Development $ 3,350 Salary and Benefits $ 120,000 TOTAL BUDGET $ 783,100 Corr se i'0 geu..A AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Black Chamber of Commerce providing for the payment and use of hotel tax revenue; and providing an effective date. ($16,580 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $16,580 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance \ \codad \departments \legal \our documents\ ordinances \13 \hot funds py I4 \black chamber ordinance.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON BLACK CHAMBER OF COMMERCE FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Black Chamber of Commerce 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON BLACK CHAMBER OF COMMERCE (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Black Chamber of Commerce, a legal entity existing under the laws of the State of Texas (the "CHAMBER "): 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 %); 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, CHAMBER is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with CHAMBER, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and CHAMBER agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CHAMBER under this Agreement, CITY agrees to pay to CHAMBER a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to CHAMBER, 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: (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. Black Chamber HOT Funding - Page 1 (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 quarter" shall refer to any quarter of the calendar year in which this A reement is in force. Contract quarters will end on March 31St, June 30th, September 30 , 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 CHAMBER an amount of money in each contract year equal to the lesser amount of Eighty Six One Hundredths percent (.86 %) of the annual base payment amount, or the fixed contract amount of Sixteen Thousand Five Hundred and Eighty Dollars ($16,580). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of .86% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce CHAMBER's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to CHAMBER of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of CHAMBER. Black Chamber HOT Funding - Page 2 (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 CHAMBER's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to CHAMBER of the agreed payments of hotel tax funds specified above, CHAMBER 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 authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the CHAMBER may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in CHAMBER's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the CHAMBER for which hotel tax funds may be used shall not exceed that portion of the CHAMBER's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) CHAMBER shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of CHAMBER funded by hotel tax revenues. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to CHAMBER 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. Black Chamber HOT Funding - Page 3 (b) CHAMBER acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in CHAMBER with respect to the hotel tax funds paid by CITY to CHAMBER under this Agreement. CHAMBER 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. (c) Upon the application or consent of CHAMBER, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of CHAMBER, without approval of the City Council by ordinance. 3.2 Separate Accounts. CHAMBER shall maintain any hotel tax funds paid to CHAMBER 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. CHAMBER shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by CHAMBER. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, CHAMBER shall make such financial records available for inspection and review by the party making the request. CHAMBER understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, CHAMBER 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). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. CHAMBER 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. CHAMBER shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of CHAMBER's Board of Directors, as well as any other meeting of any constituency of CHAMBER, 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, 2014 and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. Only those expenditures authorized by Chapter Black Chamber HOT Funding - Page 4 351 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse CHAMBER for any contractual obligations of CHAMBER undertaken by CHAMBER in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse CHAMBER or to assume the performance of any contractual obligations of CHAMBER for or under any contract entered into by CHAMBER as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), CHAMBER 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 and 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 the City; 3) within 5 business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. CHAMBER will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by CHAMBER 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 CHAMBER; (b) The insolvency of CHAMBER, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by CHAMBER for the benefit of creditors; Black Chamber HOT Funding - Page 5 (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or CHAMBER 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 CHAMBER 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 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 ¶ ¶4.3 or 4.4, CHAMBER 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 CHAMBER with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that CHAMBER enters into any arrangement, contractual or otherwise, with such other entity, person or organization, CHAMBER 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. CHAMBER 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. CHAMBER shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and CHAMBER shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. CHAMBER shall not be considered a partner or joint venturer with CITY, nor shall CHAMBER be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. CHAMBER 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CHAMBER 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 Black Chamber HOT Funding - Page 6 OR INTENTIONAL ACTS OF CHAMBER, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. CHAMBER 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: CITY CHAMBER City Manager Denton Black Chamber of Commerce City of Denton John Baines 215 E. McKinney P.O. Box 51026 Denton, TX 76201 Denton, Texas 76206 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 CHAMBER 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. Black Chamber HOT Funding - Page 7 5.12 Insurance. CHAMBER shall, at a minimum, 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 ($100,000 1$500,000 1$100,000), and 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. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: L1112 2013. THE CITY OF DENTON, TEXAS wo GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO By: ATTORNEY DENTON BLACK CHAMBER OF COMMERCE Chairman/Director APPROVED AS TO LEGAL FORM: By: Secretary Black Chamber HOT Funding Page 8 Exhibit A Denton Black Chamber of Commerce Denton Blues Festival 2014 ADVERTISING Internet $ 1,500 Radio 3,500 Billboards 5,880 Print Advertising 2,700 $ 13,580 ART Musicians $ 3,000 TOTAL $ 16,580 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance aL ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. providing for the payment and use of hotel tax revenue; and providing an effective date. ($23,010 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW(Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $23,010 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: C�111k- Chuck Springer, 349 -8260 Director of Finance \ \codad \departments \legal \our documents \ordinances \13 \hot funds pyl4 \dct ord.doe ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON COMMUNITY THEATRE, 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 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY :• MARK A. BURROUGHS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COMMUNITY THEATRE, INC. (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Community Theatre, Inc., a legal entity incorporated under the laws of the State of Texas (the "THEATRE "): 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 %); 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, THEATRE is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with THEATRE, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and THEATRE agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by THEATRE under this Agreement, CITY agrees to pay to THEATRE a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to THEATRE 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: (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. DCT HOT Funding PY2014 - Page 1 (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 quarter" 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 30 , 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 THEATRE an amount of money in each contract year equal to the lesser amount of: One and Twenty One Hundredths percent (1.20 %) of the annual base payment amount, or the fixed contract amount of Twenty -Three Thousand Ten Dollars ($23,010). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 1..20% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce THEATRE's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to THEATRE of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of THEATRE. DCT HOT Funding PY2014 - Page 2 (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 THEATRE's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to THEATRE of the agreed payments of hotel tax funds specified above, THEATRE 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 authorized by TEX. TAX CODE §351.101(a) (3). Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the THEATRE may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in THEATRE's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the THEATRE for which hotel tax funds may be used shall not exceed that portion of the THEATRE's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) THEATRE shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of THEATRE in which the hotel tax funds shall be used by THEATRE. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to THEATRE any hotel tax revenues as set forth in Section I of this contract DCT HOT Funding PY2014 - Page 3 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. (b) THEATRE acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in THEATRE with respect to the hotel tax funds paid by CITY to THEATRE under this Agreement. THEATRE 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. (c) Upon the application or consent of THEATRE, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of THEATRE, without approval of the City Council by ordinance. 3.2 Separate Accounts. THEATRE shall maintain any hotel tax funds paid to THEATRE 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. THEATRE shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by THEATRE. 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, THEATRE shall make such financial records available for inspection and review by the party making the request. THEATRE understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, THEATRE 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., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. THEATRE 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. THEATRE shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of THEATRE's Board of Directors, as well as any other meeting of any constituency of THEATRE, at which this Agreement or any matter subject to this Agreement shall be considered. DCT HOT Funding PY2014 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2014 and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse THEATRE for any contractual obligations of THEATRE undertaken by THEATRE in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse THEATRE, or to assume the performance of any contractual obligations of THEATRE, for or under any contract entered into by THEATRE as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), THEATRE 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, and 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; 4) a final accounting of all expenditures and tax funds on the day of termination. THEATRE will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by THEATRE 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: DCT HOT Funding PY2014 - Page 5 (a) The termination of the legal existence of THEATRE; (b) The insolvency of THEATRE, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by THEATRE for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or THEATRE 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 THEATRE 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 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 ¶ ¶4.3 or 4.4, THEATRE 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 THEATRE with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that THEATRE enters into any arrangement, contractual or otherwise, with such other entity, person or organization, THEATRE 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. THEATRE 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. THEATRE shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and THEATRE shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. THEATRE shall not be considered a partner or joint venturer with CITY, nor shall THEATRE be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. THEATRE 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 DCT HOT Funding PY2014 - Page 6 OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THEATRE 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 THEATRE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. THEATRE 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: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 THEATRE Denton Community Theatre, Inc. ATTN: Mike Barrow 214 West Hickory 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 THEATRE 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. DCT HOT Funding PY2014 - Page 7 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. THEATRE 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 ($100,000 1$500,000 1$100,000), and 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. EXECUTED this ATTEST: day of 12013. THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS-TO LEGAL FORM: By: JENNIFER WALTERS, �_B�URGESS, CITY SECRETARY CITY ATTORNEY DENTON COMMUNITY THEATRE, INC. By: Chairrnan/Direeer DCT HOT Funding PY2014 - Page 8 ATTEST: APPROVED AS TO LEGAL FORM: By: By: Secretary DCT HOT Funding PY2014 - Page 9 Denton Community Theatre Annual Performance Season 2014 Exhibit A ADVERTISING Brochures and Postcards $ 9,010 Internet 14,000 TOTAL $ 23,010 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance I —A ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton Dog Days, Inc. providing for the payment and use of hotel tax revenue; and providing an effective date. ($14,590 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $14,590 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance \ \codad \departments \legal \our documents \ordinances \13\hot funds pyWdog days ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON DOG DAYS, 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 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Denton Dog Days, Inc. 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY 18-M APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY_ATTORNEY BY: AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON DOG DAYS, INC. (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Dog Days, Inc., a legal entity incorporated under the laws of the State of Texas (the "ENTITY "): 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 %); 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, ENTITY is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ENTITY, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ENTITY agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ENTITY under this Agreement, CITY agrees to pay to ENTITY a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ENTITY 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: (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. Dog Days HOT Funding PY2014 - Page 1 (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 quarter" 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 30 , 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 ENTITY an amount of money in each contract year equal to the lesser amount o£ Seventy -Six One Hundredths percent (..76 %) of the annual base payment amount, or the fixed contract amount of Fourteen Thousand and Five Hundred Ninety Dollars ($14,590). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of .76% of the base payment amount, whichever is less. If CITY'S Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY will reduce the ENTITY's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ENTITY of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of ENTITY. Dog Days HOT Funding PY2014 - Page 2 (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 ENTITY's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ENTITY of the agreed payments of hotel tax funds specified above, ENTITY 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 authorized by TEX. TAX CODE §351.101(a) (3). Funds for any calendar year which are unused by midnight December 31s' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by ENTITY may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in ENTITY's budget (Exhibit "A ") and 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) That portion of total administrative costs of ENTITY for which hotel tax funds may be used shall not exceed that portion of ENTITY's administrative costs actually incurred in conducting the activities specified in ¶2.1 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. Dog Days HOT Funding PY2014 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ENTITY shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ENTITY in which the hotel tax funds shall be used by ENTITY. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ENTITY 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. (b) ENTITY acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ENTITY with respect to the hotel tax funds paid by CITY to ENTITY under this Agreement. ENTITY 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. (c) Upon the application or consent of ENTITY, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ENTITY, without approval of the City Council by ordinance. 3.2 Separate Accounts. ENTITY shall maintain any hotel tax funds paid to ENTITY 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. ENTITY shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ENTITY. 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, ENTITY shall make such financial records available for inspection and review by the party making the request. ENTITY understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, ENTITY 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., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in Dog Days HOT Funding PY2014 - Page 4 a form either determined or approved by the City Manager or designate. ENTITY 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. ENTITY shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ENTITY's Board of Directors, as well as any other meeting of any constituency of ENTITY, 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, 2014 and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ENTITY for any contractual obligations of ENTITY undertaken by ENTITY in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ENTITY, or to assume the performance of any contractual obligations of ENTITY, for or under any contract entered into by ENTITY as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ENTITY 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, and 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; 4) a final accounting of all expenditures and tax funds on the day of Dog Days HOT Funding PY2014 - Page 5 termination. ENTITY will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ENTITY 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 ENTITY; (b) The insolvency of ENTITY, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ENTITY for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ENTITY 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 ENTITY 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 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 ¶ ¶4.3 or 4.4, ENTITY 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 ENTITY with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that ENTITY enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ENTITY 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. ENTITY 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 Dog Days HOT Funding PY2014 - Page 6 CITY. ENTITY shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ENTITY shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ENTITY shall not be considered a partner or joint venturer with CITY, nor shall ENTITY be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ENTITY 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ENTITY 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 ENTITY, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ENTITY 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: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 ENTITY Denton Dog Days, Inc. ATTN: Christine Gossett PO Box 1158 Denton, TX 76202 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 ENTITY 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, Dog Days HOT Funding PY2014 - Page 7 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. ENTITY 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 ($100,000 /$500,000 /$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of , 2013. THE CITY OF DENTON, TEXAS i GEORGE C. CAMPBELL, CITY MANAGER ATTEST: APPROVED A$,_T El By: B JENNIFER WALTERS, BURGESS, CITY SECRETARY CITY ATTORNEY Dog Days HOT Funding PY2014 - Page 8 ATTEST: Secretary DENTON DOG DAYS, INC. t By: C aii'man/Director APPROVED AS TO LEGAL FORM: Dog Days HOT Funding PY2014 - Page 9 Denton Dog Days, Inc. Dog Days of Denton Celebration 2014 ADVERTISING Brochures Internet Ads Promotions (Print, Radio, Coops) Billboards Contract Labor $ 1,100 2,840 3,000 650 7,000 TOTAL $ 14,590 Exhibit A Coir ,e i'0 ,geirAa G AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Festival Foundation providing for the payment and use of hotel tax revenue; and providing an effective date. ($82,820 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $82,820 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: C�111k- Chuck Springer, 349 -8260 Director of Finance \\codad \deparnuents \legahour d0cuments \ordinances\1 3 \hot funds pyl4 \festival foundation ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Festival Foundation 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY FEW APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Festival Foundation, Inc. a legal entity incorporated under the laws of the State of Texas (the "FOUNDATION "): WHEREAS, TEX. TAX CODE §351.002 authorizes the 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, the CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7 %); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes the 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, the FOUNDATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes the CITY to delegate by contract with the FOUNDATION, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the CITY and the FOUNDATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by the FOUNDATION under this Agreement, the CITY agrees to pay to the FOUNDATION a portion of the hotel tax revenue collected by the CITY at the rates and in the manner specified herein (such payments by the CITY to the FOUNDATION 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: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by the 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 Festival Foundation HOT Funding PY2014 - Page 1 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 the CITY's fiscal year. It will include hotel tax revenue due to the 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 the 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 the 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 quarter" shall refer to any quarter of the calendar year in which this AFeement is in force. Contract quarters will end on March 3111, June 30th, September 30 , and December 31" of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, the CITY shall pay to FOUNDATION an amount of money in each contract year equal to the lesser amount of Four and Thirty -Two One Hundredths percent (4.32 %) of the annual base payment amount, or the fixed contract amount of Eighty -Two Thousand Eight Hundred Twenty Dollars ($82,820). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless the CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 4.32% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the FOUNDATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by the CITY to the FOUNDATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. The CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. Festival Foundation HOT Funding PY2014 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits the CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of the FOUNDATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of the CITY. (c) CITY may withhold further allocations if CITY determines that FOUNDATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by the CITY to the FOUNDATION of the agreed payments of hotel tax funds specified above, the FOUNDATION 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 the promotion of tourism through the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major arts forms, as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited, to signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the FOUNDATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in FOUNDATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the FOUNDATION for which hotel tax funds may be used shall not exceed that portion of the FOUNDATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. Festival Foundation HOT Funding PY2014 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) The FOUNDATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of the FOUNDATION funded by hotel tax revenues. In other words, the CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. The CITY shall not pay to the FOUNDATION 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. (b) The FOUNDATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in the FOUNDATION with respect to the hotel tax funds paid by the CITY to the FOUNDATION under this Agreement. The FOUNDATION 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 the CITY. (c) Upon the application or consent of FOUNDATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of FOUNDATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. The FOUNDATION shall maintain any hotel tax funds paid to the FOUNDATION by the CITY in a separate account or with segregated fund accounting, such that any reasonable person can review the source of expenditures of tax funds. 3.3 Financial Records. The FOUNDATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by the FOUNDATION. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. FOUNDATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds and within thirty days after the end of every contract quarter, FOUNDATION 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., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. The FOUNDATION shall respond promptly to any request from the Festival Foundation HOT Funding PY2014 - Page 4 City Manager of the CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. The FOUNDATION shall give the City Manager of the CITY, or his designate, reasonable advance written notice of the time and place of all meetings of FOUNDATION's Board of Directors, as well as any other meeting of any constituency of the FOUNDATION at which this Agreement or any matter the subject of this Agreement shall be considered. This provision shall not be deemed to require the FOUNDATION to give notice of any executive session of the Executive Committee of the FOUNDATION. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2014 and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), the CITY agrees to reimburse the FOUNDATION for any contractual obligations of the FOUNDATION undertaken by the FOUNDATION in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of the CITY to reimburse the FOUNDATION or to assume the performance of any contractual obligations of the FOUNDATION for or under any contract entered into by the FOUNDATION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), the FOUNDATION will provide the 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 and 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 the City; 3) within 5 business days of a request from the CITY, a listing of expenditures that have Festival Foundation HOT Funding PY2014 - Page 5 occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. The FOUNDATION will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by the FOUNDATION 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 the FOUNDATION; (b) The insolvency of the FOUNDATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the FOUNDATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either the CITY or the FOUNDATION 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 the FOUNDATION 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 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 ¶ ¶4.3 or 4.4, FOUNDATION agrees to refund any and all unused funds, or funds determined by the 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 the FOUNDATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that the FOUNDATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the FOUNDATION shall cause such other entity, 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. The FOUNDATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or Festival Foundation HOT Funding PY2014 - Page 6 employee of the CITY. The FOUNDATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the FOUNDATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The FOUNDATION shall not be considered a partner or joint venturer with the CITY, nor shall the FOUNDATION be considered nor in any manner hold itself out as an agent or official representative of the CITY. 5.3 Indemnification. THE FOUNDATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THE FOUNDATION 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 FOUNDATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. The FOUNDATION shall not assign this Agreement without first obtaining the written consent of the CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand - delivery, addressed to the respective parties as follows: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 FOUNDATION Denton Festival Foundation, Inc. Carol Short P.O. Box 2104 Denton, Texas 76202 -2104 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and the FOUNDATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties 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. Festival Foundation HOT Funding PY2014 - Page 7 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. The FOUNDATION 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 ($100,000 1$500,0001$100,000), and 3. $500,000 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. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY 2013. THE CITY OF DENTON, TEXAS IM GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEGAL FORM: By: NITA BURGESS, r� CITY ATTORNEY Festival Foundation HOT Funding PY2014 - Page 8 ATTEST: 0 Secretary DENTON FESTIVAL FOUNDATION, INC. By: Chairman/Director APPROVED AS TO LEGAL FORM: Rm Festival Foundation HOT Funding PY2014 - Page 9 Denton Festival Foundation, Inc. Denton Arts & Jazz Festival 2014 ADVERTISING Brochures Magazines Newspapers /Internet Commercials /Photography ART Musicians Site Operations $ 4,000 4,500 4,320 3,000 $ 15,820 $ 46,000 21,000 $ 67,000 TOTAL $ 82,820 Exhibit A AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance � —A ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Greater Denton Arts Council providing for the payment and use of hotel tax revenue; and providing an effective date. ($117,780 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $117,780 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: C 1 � f-w Chuck Springer, 349 -8260 Director of Finance \ \codad \departments \legal \our doCttlllents \ordinances \13 \hot funds pyWgdac ordinance.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Tex. Tax Code §351.101(a) authorizes the City of Denton, Texas 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, Tex. Tax Code §351.101(c) authorizes the City of Denton, Texas to delegate by contract with the Greater Denton Arts Council, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Greater Denton Arts Council for the payment and use of hotel tax revenue to promote tourism and the convention and hotel industry, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY lot APPROVED AS TO LEGAL FORM: I MARK A. BURROUGHS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Greater Denton Arts Council, a non - profit corporation incorporated under the laws of the State of Texas (the "GDAC "): 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 %); 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, GDAC is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with GDAC; 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and GDAC agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by GDAC under this Agreement, CITY agrees to pay to GDAC a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to GDAC 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: (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. GDAC PY2014 HOT Funds Contract - Page 1 (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 quarter" 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 30`h, 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 GDAC an amount of money in each contract year equal to the lesser amount of. Six and Fourteen One Hundredths percent (6.14 %) of the annual base payment amount, or the fixed contract amount of One Hundred Seventeen Thousand Seven Hundred Eighty Dollars ($117,780). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 6.14% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the GDAC's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to GDAC of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports, and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. GDAC PY2014 HOT Funds Contract - Page 2 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 current contract period. Any future funding is solely the responsibility of GDAC. (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 GDAC's expenditures deviate materially from their approved budget. II. USE OF HO'T'EL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to GDAC of the agreed payments of hotel tax funds specified above, GDAC 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 and by the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms. Funds for any calendar year which are unused by midnight December 31st of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by GDAC may be spent for day -to -day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in GDAC's budget (Exhibit "A ") and 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) GDAC 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). GDAC shall not utilize hotel tax funds for any expenditure, which has not been specifically documented to satisfy the purposes set forth in ¶ ¶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 GDAC PY2014 HOT Funds Contract - Page 3 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) GDAC shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of GDAC in which the hotel tax funds shall be used by GDAC. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to GDAC 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. (b) GDAC acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in GDAC with respect to the hotel tax funds paid by CITY to GDAC under this Agreement. GDAC 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. (c) Upon the application or consent of GDAC, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of GDAC, without approval of the City Council by ordinance. 3.2 Separate Accounts. GDAC shall maintain any hotel tax funds paid to GDAC 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. GDAC shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by GDAC. 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, GDAC shall make such financial records available for inspection and review by the party making the request. GDAC understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T 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, GDAC 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 GDAC PY2014 HOT Funds Contract - Page 4 financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). GDAC shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. GDAC 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. GDAC shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of GDAC's Board of Directors, as well as any other meeting of any constituency of GDAC, 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, 2014, and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse GDAC for any contractual obligations undertaken by GDAC in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse GDAC, or to assume the performance of any contractual obligations of GDAC, for or under any contract entered into by GDAC as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), GDAC 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 GDAC PY2014 HOT Funds Contract - Page 5 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; 4) a final accounting of all expenditures and tax funds on the day of termination. GDAC will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by GDAC 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 GDAC; (b) The insolvency of GDAC, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by GDAC for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or GDAC 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 GDAC 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 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 ¶ ¶4.3 or 4.4, GDAC 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 GDAC with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that GDAC enters into any arrangement, contractual or otherwise, with such other entity, person or organization, GDAC 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 GDAC PY2014 HOT Funds Contract - Page 6 maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. GDAC 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. GDAC shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and GDAC shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. GDAC shall not be considered a partner or joint venturer with CITY, nor shall GDAC be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. GDAC 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY GDAC 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 GDAC, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. GDAC 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: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 GDAC Greater Denton Arts Council ATTN: Margaret Edge Chalfant 400 East Hickory 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 GDAC 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. GDAC PY2014 HOT Funds Contract - Page 7 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. GDAC shall, at a minimum, 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 ($100,000 1$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, and 4. $500,000 Business Automobile Liability on any owned, non -owned or hired vehicles. 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 CITY. EXECUTED this day of , 2013. GDAC PY2014 HOT Funds Contract - Page 8 ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: By: Secretary THE CITY OF DENTON, TEXAS IN GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO FORM ONLY: ANITA BURGESS, CITY ATTORNEY GREATER DENTODYARTS COUNCIL ' r� By: a .Alai �L` 1LL President i APPROVED AS TO LEGAL FORM: By: i GDAC PY2014 HOT Funds Contract - Page 9 Greater Denton Arts Council Annual Programs 2014 Exhibit A ADVERTISING Direct Promotion $ 20,000 Website Management & Development Salary 10,000 $ 30,000 ART Exhibitions & Programs $ 18,000 Salary 14,000 $ 32,000 CONVENTION CENTER Salary $ 20,000 ART ADMINISTRATION Executive Director Salary $ 24,000 Administrative Assistant 8,780 Office Supplies 3,000 $ 35,780 TOTAL $ 117,780 C N1i'YseIfYu AgeII "Aa � AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Holiday Festival Association, Inc. providing for the payment and use of hotel tax revenue; and providing an effective date. ($7,640 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $7,640 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: C�111k- Chuck Springer, 349 -8260 Director of Finance \ \codad \dep art ments \legal\our documents \ordinances \I3 \hot finds pyMlioliday festival ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON HOLIDAY FESTIVAL ASSOCIATION, 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 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Holiday Festival Association, Inc. 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY ., APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Holiday Festival Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION "): 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 %); 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, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION 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: (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 Holiday Festival HOT Funding PY2014 - Page 1 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 fiscal year 2005, less: (1) attorney and auditing costs incurred during such period 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 quarter" shall refer to any quarter of the calendar year in which this A reement is in force. Contract quarters will end on March 31St, June 30th, September 30 , 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 ASSOCIATION an amount of money in each contract year equal to the lesser amount of Forty One Hundredths percent (0.40 %) of the annual base payment amount, or the fixed contract amount of Seven Thousand Six Hundred Forty Dollars ($7,640). This amount will be paid in one lump sum on or before August 1, 2014. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the ASSOCIATION's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of ASSOCIATION. Holiday Festival HOT Funding PY2014 - Page 2 (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 ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION 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 authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ASSOCIATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of the ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this Holiday Festival HOT Funding PY2014 - Page 3 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. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION 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. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION 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. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax fiznds made by ASSOCIATION. 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, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas 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 quarter thereafter, until all funds have been expended and reported to CITY, ASSOCIATION 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 fixnds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. ASSOCIATION 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. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. Holiday Festival HOT Funding PY2014 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2014, and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION, or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by ASSOCIATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION 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, and 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; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION 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: Holiday Festival HOT Funding PY2014 - Page 5 (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION 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 ASSOCIATION 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 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 ¶ ¶4.3 or 4.4, ASSOCIATION 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 ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION 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. ASSOCIATION 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. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION 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 Holiday Festival HOT Funding PY2014 - Page 6 LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION 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 ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION 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: CITY ASSOCIATION City Manager Denton Holiday Festival Association, Inc. City of Denton Frances Shelton 215 E. McKinney P.O. Box 2765 Denton, TX 76201 Denton, Texas 76202 -2765 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 ASSOCIATION 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 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. Holiday Festival HOT Funding PY2014 - Page 7 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. ASSOCIATION 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 ($100,000 /$500,000 /$100,000), and 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. EXECUTED this day of 52013. ATTEST: U81A JENNIFER WALTERS, CITY SECRETARY THE CITY OF DENTON, TEXAS 0 GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEGAL FORM: Holiday Festival HOT Funding PY2014 - Page 8 ATTEST: By: & A Secret DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. By: Chairman/Director APPROVED AS TO LEGAL FORM: By: L * Q,. " . C PA Holiday Festival HOT Funding PY2014 - Page 9 Denton Holiday Festival Association, Inc. Denton Holiday Lighting 2014 Exhibit A ADVERTISING Magazines $ 1,500 Social Media 1,000 Digital Marketing 1,000 Newspaper 4,140 TOTAL $ 7,640 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance 9� ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Central Business District Association, Inc., d /b /a Denton Main Street Association providing for the payment and use of hotel tax revenue; and providing an effective date. ($23,010 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $23,010 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance \ \codad \departments \legal \our documents \ordinances \13 \hot funds py14 \main street ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CENTRAL BUSINESS DISTRICT ASSOCIATION, INC., d /b /a DENTON MAIN STREET ASSOCIATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Central Business District Association, Inc., d /b /a Denton Main Street Association 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY ON APPROVED AS TO LEGAL FORM: 'N C MARK A. BURROUGHS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CENTRAL BUSINESS DISTRICT ASSOCIATION INC., d /b /a DENTON MAIN STREET ASSOCIATION (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Denton Central Business District Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION "): 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 %); 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, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION 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: (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 Main Street HOT Funding PY2014 - Page 1 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 quarter" 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 30 , 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 ASSOCIATION an amount of money in each contract year equal or lesser amount of. One and Twenty One Hundredths percent (1.20 %) of the annual base payment amount, or the fixed contract amount of Twenty Three Thousand Ten Dollars ($23,010). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 1.20% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the ASSOCIATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. Main Street HOT Funding PY2014 - Page 2 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 current contract period. Any future funding is solely the responsibility of ASSOCIATION. (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 ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION 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 authorized by TEX. TAX CODE §351.101(a) (3). Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by ASSOCIATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A ") and 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) That portion of total administrative costs of ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 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. Main Street HOT Funding PY2014 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ASSOCIATION 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. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION 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. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION 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. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. 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, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas 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 quarter thereafter, until all funds have been expended and reported to CITY, ASSOCIATION 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., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or Main Street HOT Funding PY2014 - Page 4 designate. ASSOCIATION 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. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, 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, 2014, and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by the ASSOCIATIION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION 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, and 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; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by the ASSOCIATION after notification of Main Street HOT Funding PY2014 - Page 5 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 ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION 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 ASSOCIATION 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 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 ¶ ¶4.3 or 4.4, ASSOCIATION 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 ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION 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. ASSOCIATION 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. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, Main Street HOT Funding PY2014 - Page 6 employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION 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 THE ASSOCIATION 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 ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION 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: CITY ASSOCIATION City Manager Denton Main Street Association City of Denton ATTN: Christine Gossett 215 E. McKinney PO Box 2017 Denton, TX 76201 Denton, Texas 76202 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 ASSOCIATION 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. Main Street HOT Funding PY2014 - Page 7 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. ASSOCIATION 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 ($100,000 1$500,000 1$100,000), and 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. EXECUTED this day of ATTEST: C JENNIFER WALTERS, CITY SECRETARY 2013. THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS- T-0-LEGAL FORM: .3 4DITA—BURGESS, CITY ATTORNEY DENTON CEN' ASSOCIATION, As C �AL BUSINESS DISTRICT INC. (Denton Main Street Main Street HOT Funding PY2014 - Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: 0 Main Street HOT Funding PY2014 - Page 9 Denton Main Street Association Historic Downtown Events & Promotions 2014 ADVERTISING Brochures Visitor Guide and Denton Live Ads Print, Online Banners, Radio & CVB Coops Social Media Memberships Billboards Internet Postage Contract Labor 750 7,250 2,600 2,300 275 750 410 175 8,500 TOTAL $ 23,010 Exhibit A AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Music Theatre of Denton providing for the payment and use of hotel tax revenue; and providing an effective date. ($5,000 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $5,000 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: C�111k- Chuck Springer, 349 -8260 Director of Finance \ \codad \departments \legal \our documents\ ordinances \13\hot funds py14 \music theatre ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND MUSIC THEATRE OF DENTON FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Music Theatre of Denton 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY R.", APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY AGREEMENT BETWEEN THE CITY OF DENTON AND MUSIC THEATRE OF DENTON (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the Music Theatre of Denton, a legal entity incorporated under the laws of the State of Texas (the "THEATRE "): 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 %); 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, THEATRE is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with THEATRE, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and THEATRE agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by THEATRE under this Agreement, CITY agrees to pay to THEATRE a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to THEATRE 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: (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. Music Theatre of Denton HOT Funding PY2014 - Page 1 (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 quarter" 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 30 , 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 THEATRE an amount of money in each contract year equal to the lesser amount of Twenty -Six One Hundredths percent (0.26 %) of the annual base payment amount, or the fixed contract amount of Five Thousand Dollars ($5,000). This amount will be paid in one lump sum after the 25th of January 2014. If CITY's Chief Financial Officer determines that hotel tax receipts to the CITY are not meeting the anticipated budget projection, CITY may reduce THEATRE's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to THEATRE of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of THEATRE. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. Music Theatre of Denton HOT Funding PY2014 - Page 2 (c) CITY may withhold further allocations if CITY determines that THEATRE's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to THEATRE of the agreed payments of hotel tax funds specified above, THEATRE 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 authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the THEATRE may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in THEATRE's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the THEATRE for which hotel tax funds may be used shall not exceed that portion of the THEATRE's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) THEATRE shall prepare and submit to the City Manager of CITY an annual budget (see Exhibit "A ") as approved by the City Council for each calendar year, for all operations of THEATRE in which the hotel tax funds shall be used by THEATRE. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to THEATRE 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. Music Theatre of Denton HOT Funding PY2014 - Page 3 (b) THEATRE acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in THEATRE with respect to the hotel tax funds paid by CITY to THEATRE under this Agreement. THEATRE 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. (c) Upon the application or consent of THEATRE, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of THEATRE, without approval of the City Council by ordinance. 3.2 Separate Accounts. THEATRE shall maintain any hotel tax funds paid to THEATRE 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. THEATRE shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by THEATRE. 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, THEATRE shall make such financial records available for inspection and review by the party making the request. THEATRE understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T 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 quarter thereafter, until all funds have been expended and reported to CITY, THEATRE 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., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. THEATRE 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. THEATRE shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of THEATRE's Board of Directors, as well as any other meeting of any constituency of THEATRE, 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, 2014, and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. Only those expenditures authorized by Chapter Music Theatre of Denton HOT Funding PY2014 - Page 4 351 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse THEATRE for any contractual obligations of THEATRE undertaken by THEATRE in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse THEATRE, or to assume the performance of any contractual obligations of THEATRE, for or under any contract entered into by THEATRE as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), THEATRE 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, and 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; 4) a final accounting of all expenditures and tax funds on the day of termination. THEATRE will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by THEATRE 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 THEATRE; (b) The insolvency of THEATRE, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by THEATRE for the benefit of creditors; Music Theatre of Denton HOT Funding PY2014 - Page 5 (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or THEATRE 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 THEATRE 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 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 ¶ ¶4.3 or 4.4, THEATRE 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 THEATRE with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that THEATRE enters into any arrangement, contractual or otherwise, with such other entity, person or organization, THEATRE 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. THEATRE 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. THEATRE shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and THEATRE shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. THEATRE shall not be considered a partner or joint venturer with CITY, nor shall THEATRE be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. THEATRE 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THEATRE 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 Music Theatre of Denton HOT Funding PY2014 - Page 6 ACTS OF THEATRE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. THEATRE 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: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 T14PATRF Music Theater of Denton David Pierce 214 West Hickory 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 THEATRE 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 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. Music Theatre of Denton HOT Funding PY2014 - Page 7 5.12 Insurance. THEATRE 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 ($100,000 1$500,000 1$100,000), and 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. EXECUTED this day of , 2013. ATTEST: BY: JENNIFER WALTERS, CITY SECRETARY ATTEST: By: Secretary THE CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER y_ --_ CITY ATTORNEY MUSIC THEATRE OF DENTON. BY: D � " K, VC6,_�- Chairman/Director APPROVED AS TO LEGAL FORM: an Music Theatre of Denton HOT Funding PY2014 - Page 8 Music Theatre of Denton 2014 Season Exhibit A ADVERTISING Theatre Programs Dallas $ 2,000 Radio 2,000 Social Media 1,000 TOTAL $ 5,000 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance 1 -4 ACM: Bryan Langley SUBJECT Ctlil 'Yse f0 ei' Aa L Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the North Texas State Fair Association providing for the payment and use of hotel tax revenue; and providing an effective date. ($73,620 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $73,620 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: C h11 � C�11 .-' Chuck Springer, 349 -8260 Director of Finance \ \cod ad\departmentsUegaRour documents\ ordinances \13 \hot funds py14 \ntsford.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS STATE FAIR ASSOCIATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the North Texas State Fair Association 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IN APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS STATE FAIR ASSOCIATION (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and the North Texas State Fair Association, a non - profit corporation incorporated under the laws of the State of Texas (the "ASSOCIATION "): 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 %); 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, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION 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: (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. North Texas State Fair PY2014 HOT Funds — Page 1 (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 quarter" 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 ASSOCIATION an amount of money in each contract year equal to the lesser amount of Three and Eighty -Four One Hundredths percent (3.84 %) of the annual base payment amount, or the fixed contract amount of Seventy -Three Thousand Six Hundred Twenty Dollars ($73,620). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 3.84% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the ASSOCIATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. North Texas State Fair PY2014 HOT Funds — Page 2 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 current contract period. Any future funding is solely the responsibility of ASSOCIATION. (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 ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION 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 authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ASSOCIATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of the ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. North Texas State Fair PY2014 HOT Funds — Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ASSOCIATION 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. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION 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. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION 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. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. 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 reasonably advance written request of the Denton City Council, the City Manager or designate, or any other person, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax fund, and within thirty days after the end of every contract quarter, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of 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., copies of front and back cleared checks or bank statements, and other relevant documentation). ASSOCIATION shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. ASSOCIATION shall North Texas State Fair PY2014 HOT Funds — Page 4 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. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, 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, 2014, and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by ASSOCIATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION 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, and the budget does not contain any expenditures that would be North Texas State Fair PY2014 HOT Funds — Page 5 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; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION 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 ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION 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 ASSOCIATION 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 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 ¶ ¶4.3 or 4.4, ASSOCIATION 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. North Texas State Fair PY2014 HOT Funds — Page 6 V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION 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. ASSOCIATION 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. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION 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 ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION 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: CITY ASSOCIATION City Manager North Texas State Fair Association City of Denton Glenn Carlton 215 E. McKinney P.O. Box 1695 North Texas State Fair PY2014 HOT Funds — Page 7 Denton, TX 76201 Denton, Texas 76202 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 ASSOCIATION 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. ASSOCIATION shall, at a minimum, 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 ($100,000 1$500,000 1$100,000), and 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. EXECUTED this day of 52013. North Texas State Fair PY2014 HOT Funds — Page 8 ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: Secretary THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS--TO'LE-GAL ANITA BURGESS, CITY ATTORNEY NORTH TEXAS STATE FAIR ASSOCIATION By: CRUjnz� President APPROVED AS TO LEGAL FORM: North Texas State Fair PY2014 HOT Funds — Page 9 Exhibit A North Texas State Fair Association, Inc. North Texas Fair and Rodeo 2014 ADVERTISING Internet $ 4,000 Radio 43,500 Newspapers /Magazines 1,120 Billboards 10,000 Television 15,000 TOTAL $ 73,620 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance � -A ACM: Bryan Langley SUBJECT Corr se i'0 geu..A Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Susan G. Komen for the Cure Advocacy Alliance (North Texas Affiliate) providing for the payment and use of hotel tax revenue; and providing an effective date. ($10,000 —Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $10,000 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: C ��� � ('� , Chuck Springer, 349 -8206 Director of Finance \ \codad \departments \legal \our documents \ordinances \13\hot funds py14 \susangkomen ord.doe ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE SUSAN G. KOMEN FOR THE CURE ADVOCACY ALLIANCE (NORTH TEXAS AFFILIATE) FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Susan G. Komen for the Cure Advocacy Alliance (North Texas Affiliate) 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE SUSAN G. KOMEN FOR THE CURE ADVOCACY ALLIANCE (NORTH TEXAS AFFILIATE) (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and Susan G. Komen for the Cure Advocacy Alliance (North Texas Affiliate), a legal entity incorporated under the laws of the State of Texas (the "ORGANIZATION "): 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 %); 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, ORGANIZATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ORGANIZATION, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ORGANIZATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CORPORATION under this Agreement, CITY agrees to pay to ORGANIZATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ORGANIZATION 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: (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 Susan G. Komen HOT Funding PY2014 - Page I 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 quarter" shall refer to any quarter of the calendar year in which this Afeement is in force. Contract quarters will end on March 31St, June 30th, September 30 , 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 ORGANIZATION an amount of money in each contract year equal to the lesser amount of Fifty -Two One Hundredths percent (0.52 %) of the annual base payment amount, or the fixed contract amount of Ten Thousand Dollars ($10,000). This amount will be divided into two payments equal to 50% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The final payment will represent 50% of the fixed contract amount or the unpaid remainder of 0.52% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce ORGANIZATION's current budget at any time during the contract period. Each payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to ORGANIZATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. Susan G. Komen HOT Funding PY2014 - Page 2 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 current contract period. Any future funding is solely the responsibility of ORGANIZATION. (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 ORGANIZATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ORGANIZATION of the agreed payments of hotel tax funds specified above, ORGANIZATION 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 authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audience outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ORGANIZATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in ORGANIZATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the ORGANIZATION for which hotel tax funds may be used shall not exceed that portion of the ORGANIZATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. Susan G. Komen HOT Funding PY2014 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ORGANIZATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ORGANIZATION in which the hotel tax funds shall be used by ORGANIZATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to ORGANIZATION 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. (b) ORGANIZATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ORGANIZATION with respect to the hotel tax funds paid by CITY to CORPORATION under this Agreement. ORGANIZATION 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. (c) Upon the application or consent of ORGANIZATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ORGANIZATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ORGANIZATION shall maintain any hotel tax funds paid to ORGANIZATION 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. ORGANIZATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ORGANIZATION. 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, ORGANIZATION shall make such financial records available for inspection and review by the party making the request. ORGANIZATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas 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 quarter thereafter, until all funds have been expended and reported to CITY, ORGANIZATION 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., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or Susan G. Komen HOT Funding PY2014 - Page 4 designate. ORGANIZATION 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. ORGANIZATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ORGANIZATION's Board of Directors, as well as any other meeting of any constituency of ORGANIZATION, 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, 2014, and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ORGANIZATION for any contractual obligations of ORGANIZATION undertaken by ORGANIZATION in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ORGANIZATION, or to assume the performance of any contractual obligations of ORGANIZATION, for or under any contract entered into by ORGANIZATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ORGANIZATION 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, and 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; 4) a final accounting of all expenditures and tax Susan G. Komen HOT Funding PY2014 - Page 5 funds on the day of termination. ORGANIZATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ORGANIZATION 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 ORGANIZATION; (b) The insolvency of ORGANIZATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ORGANIZATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ORGANIZATION 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 ORGANIZATION 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 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 ¶ ¶4.3 or 4.4, ORGANIZATION 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 ORGANIZATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ORGANIZATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ORGANIZATION 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. ORGANIZATION 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. ORGANIZATION shall have exclusive control of its operations and Susan G. Komen HOT Funding PY2014 - Page 6 performance of services hereunder, and such persons, entities, or organizations performing the same, and ORGANIZATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ORGANIZATION shall not be considered a partner or joint venturer with CITY, nor shall ORGANIZATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ORGANIZATION 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CORPORATION 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 ORGANIZATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ORGANIZATION 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: CITY ORGANIZATION City Manager Susan G. Komen for the Cure Advocacy 215 E. McKinney Alliance (North Texas Affiliate) City of Denton Glynis Anderson Denton, TX 76201 PO Box 261730 Plano, Texas 75026 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 ORGANIZATION 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 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. Susan G. Komen HOT Funding PY2014 - Page 7 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. ORGANIZATION 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 ($100,000 /$500,000 /$100,000), and 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. EXECUTED this ATTEST: day of , 2013. THE CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEGAL FORM: By: B 1� JENNIFER WALTERS, ITA BURGESS CITY SECRETARY CITY ATTORNEY Susan G. Komen HOT Funding PY2014 - Page 8 MW PN LLIP FREDERCK My Conrail :lion Expires 'Nomi *oo 26.2016 nMIFa� ATTEST: L'I'm Secretary SUSAN G. KOMEN FOR THE CURE ADVOCACY ALLILANCE APPROVED AS TO LEGAL FORM: Susan G. Komen HOT Funding PY2014 - Page 9 Exhibit A Susan G. Komen for the Cure Komen North Texas Denton Race for the Cure 2014 ADVERTISING Movie Theatre Ads $ 3,800 Postcards 2,800 Postage 2,800 Social Media 600 TOTAL $ 10,000 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Tejas Storytelling Association, Inc. providing for the payment and use of hotel tax revenue; and providing an effective date. ($50,610 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $50,610 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: C 1 � C- , Chuck Springer, 349 -8260 Director of Finance \ \codad \departments \legal \our documents \ordinances \13 \hot fiords pyMtejas ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE TEJAS STORYTELLING ASSOCIATION, 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 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and The Tejas Storytelling Association, Inc. 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY F MARK A. BURROUGHS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE TEJAS STORYTELLING ASSOCIATION, INC. (PY2014), PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and The Tejas Storytelling Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION "): 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 %); 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, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODe §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION 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: (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. Tejas HOT Funding PY2014 - Page 1 (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 quarter" 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 ASSOCIATION an amount of money in each contract year equal to the lesser amount of. Two and Sixty -Four One Hundredths percent (2.64 %) of the annual base payment amount, or the fixed contract amount of Fifty Thousand Six Hundred Ten Dollars ($50,610). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 2.64% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce ASSOCIATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of ASSOCIATION. Tejas HOT Funding PY2014 - Page 2 (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 ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION 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 vicinitys; as well as the encouragement, promotion, improvement, and application of the arts including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31 S` of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ASSOCIATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of the ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds Tejas HOT Funding PY2014 - Page 3 shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ASSOCIATION 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. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION 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. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION 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. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. 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, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty days after the end of every contract quarter, ASSOCIATION 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., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. ASSOCIATION 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. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of Tejas HOT Funding PY2014 - Page 4 ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. I iiAl l DURI MI-1 1110PRO 1107.1,11111 Wei 4.1 Term. The term of this Agreement shall commence on January 1, 2014 and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION, or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by ASSOCIATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION 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; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION 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. Tejas HOT Funding PY2014 - Page 5 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 ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION 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 ASSOCIATION 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 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 T ¶4.3 or 4.4, ASSOCIATION 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 ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION 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. ASSOCIATION 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. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. Tejas HOT Funding PY2014 - Page 6 5.3 Indemnification. ASSOCIATION 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION 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 ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION 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: CITY ASSOCIATION City Manager The Tejas Storytelling Association, Inc. City of Denton Gary Patton 215 E. McKinney P.O. Box 2806 Denton, TX 76201 Denton, Texas 76202 -2806 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 ASSOCIATION 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. Tejas HOT Funding PY2014 - Page 7 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. ASSOCIATION 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 ($100,000 1$500,000 1$100,000), and 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 CITY. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY 2013. THE CITY OF DENTON, TEXAS IM GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS ANITA BURGESS, CITY ATTORNEY THE TEJAS STORYTELLING ASSOCIATION, INC. By: -tiZ, �//1 Chairm#lDirector Tejas HOT Funding PY2014 - Page 8 ATTEST: APPROVED AS TO LEGAL FORM: By: By: Secretary Tejas HOT Funding PY2014 - Page 9 Tejas Storytelling Association Texas Storytelling Festival 2014 Exhibit A ADVERTISING Radio & TV $ 16,810 Photography 550 Print Advertising 10,000 Internet 3,000 Direct Marketing & Promotion 4,500 Contract Labor 3,750 $ 38,610 ART Performers $ 9,450 Site Operations 2,550 $ 12,000 TOTAL $ 50,610 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance � —A ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Texas Filmmakers' Corporation providing for the payment and use of hotel tax revenue; and providing an effective date. ($7,500 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2014 through midnight January 31, 2015. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $7,500 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: C h11 � C��e.�, Chuck Springer, 349 -8260 Director of Finance \\codad \departments \legal \our documents \ordinances \13 \hot funds pyl4 \texas filmmakers ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND TEXAS FILMMAKERS' CORPORATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Texas Filmmakers' Corporation 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 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By v AGREEMENT BETWEEN THE CITY OF DENTON AND TEXAS FILMMAKERS' CORPORATION (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY "), and Texas Filmmakers' Corporation, a legal entity incorporated under the laws of the State of Texas (the "CORPORATION "): 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 %); 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, CORPORATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with CORPORATION, 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; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and CORPORATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CORPORATION under this Agreement, CITY agrees to pay to CORPORATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to CORPORATION 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: (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. Texas Filmmakers HOT Funding PY2014 - Page 1 (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 quarter" shall refer to any quarter of the calendar year in which this A reement is in force. Contract quarters will end on March 31St, June 3&, September 30 , 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 CORPORATION an amount of money in each contract year equal to the lesser amount of Thirty -Nine One Hundredths percent (0.39 %) of the annual base payment amount, or the fixed contract amount of Seven Thousand and Five Hundred Dollars ($7,500). This amount will be paid in one lump sum after the 25th of January 2014. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce CORPORATION's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to CORPORATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of CORPORATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. Texas Filmmakers HOT Funding PY2014 - Page 2 (c) CITY may withhold further allocations if CITY determines that CORPORATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to CORPORATION of the agreed payments of hotel tax funds specified above, CORPORATION 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 authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audience outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the CORPORATION may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE 351.101(e), but only if specified in CORPORATION's budget (Exhibit "A ") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each 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) That portion of total administrative costs of the CORPORATION for which hotel tax funds may be used shall not exceed that portion of the CORPORATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 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 or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) CORPORATION shall adhere to the budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of CORPORATION in which the hotel tax funds shall be used by CORPORATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to CORPORATION 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. Texas Filmmakers HOT Funding PY2014 - Page 3 (b) CORPORATION acknowledges that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in CORPORATION with respect to the hotel tax funds paid by CITY to CORPORATION under this Agreement. CORPORATION 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. (c) Upon the application or consent of CORPORATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of CORPORATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. CORPORATION shall maintain any hotel tax funds paid to CORPORATION 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. CORPORATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by CORPORATION. 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, CORPORATION shall make such financial records available for inspection and review by the party making the request. CORPORATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. GOV'T 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 quarter thereafter, until all funds have been expended and reported to CITY, CORPORATION 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., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. CORPORATION 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. CORPORATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of CORPORATION's Board of Directors, as well as any other meeting of any constituency of CORPORATION, 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, 2014, and terminate at midnight on January 31, 2015. However, the program period shall commence on January 1, 2014 Texas Filmmakers HOT Funding PY2014 - Page 4 and terminate at midnight on December 31, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse CORPORATION for any contractual obligations of CORPORATION undertaken by CORPORATION in satisfactory performance of those activities specified in ¶ ¶2.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse CORPORATION, or to assume the performance of any contractual obligations of CORPORATION, for or under any contract entered into by CORPORATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), CORPORATION 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, and 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; 4) a final accounting of all expenditures and tax funds on the day of termination. CORPORATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by CORPORATION 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 CORPORATION; (b) The insolvency of CORPORATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by CORPORATION for the benefit of creditors; Texas Filmmakers HOT Funding PY2014 - Page 5 (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or CORPORATION 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 CORPORATION 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 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 ¶ ¶4.3 or 4.4, CORPORATION 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 CORPORATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that CORPORATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, CORPORATION 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. CORPORATION 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. CORPORATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and CORPORATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. CORPORATION shall not be considered a partner or joint venturer with CITY, nor shall CORPORATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. CORPORATION 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CORPORATION 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 Texas Filmmakers HOT Funding PY2014 - Page 6 NEGLIGENT OR INTENTIONAL ACTS OF CORPORATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. CORPORATION 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: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 CORPORATION Texas Filmmakers' Corporation Joshua Butler 5012 Pebble Beach Trail Denton, Texas 76208 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 CORPORATION 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 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. Texas Filmmakers HOT Funding PY2014 - Page 7 5.12 Insurance. CORPORATION 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 ($100,000 /$500,000 /$100,000), and 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. EXECUTED this day of , 2013. ATTEST: BY: JENNIFER WALTERS, CITY SECRETARY ATTEST: By: Secretary THE CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS TO LEGAL FORM: .0 CITY ATTORNEY TEXAS FILMMAKERS' AS TO LEGAL FORM: Un Texas Filmmakers HOT Funding PY2014 - Page 8 TION Texas Filmmakers Thin Line Film Fest 2014 Exhibit A ADVERTISING Face Book $ 2,500 Dallas Observer Online 1,750 Other Social Media 1,500 Google Targets 1,750 TOTAL $ 7,500 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Finance � —A ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton County, Texas (Denton County Office of History and Culture) providing for the payment and use of hotel tax revenue; and providing an effective date. ($108,570 — Hotel Occupancy Tax Committee recommends approval 3 -0) BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This reimbursement contract is for a ten month term beginning January 1, 2014 through midnight on October 31, 2014. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2013 -2014 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $108,570 for FY 2013 -2014 and has been included in the Annual Program of Services. Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance \\codad\departmentsUegakour documents \ordinances \13 \hot funds py14 \denton county ordinance.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE IN SUPPORT OF THE DENTON COUNTY OFFICE OF HISTORY AND CULTURE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Tex. Tax Code §351.101(a) authorizes the City of Denton, Texas 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 to visit preserved historic sites and museums; and WHEREAS, the County of Denton, Texas is well equipped to perform those activities by its operation of the Courthouse on the Square, the Bayless -Selby House, the African American, the Old No. 14 Fire House, the Elm Ridge Church, the Welcome Center and the Outhouse Museums; and WHEREAS, Tex. Tax Code §351.101(c) authorizes the City of Denton, Texas to delegate by contract with the County of Denton, Texas, as a governmental 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, both the City of Denton, Texas and the County of Denton, Texas have a secondary source of authority to enter into an interlocal cooperation agreement, pursuant to Chapter 791 of the Texas Government Code, as: the agreement is authorized by both governmental bodies; the agreement states the purpose, terms, rights, and duties of the contracting parties; the consideration is being paid by City of Denton, Texas out of current revenues; the compensation is fair; and the services to be performed are "museum services" authorized under §791.003(3)(F) of the Texas Government Code, which each party is authorized to perform individually; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an interlocal agreement between the City of Denton and Denton County for the payment and use of hotel tax revenue in support of the Denton County Office of History and Culture under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY I• APPROVED AS TO LEGAL FORM: Page 2 AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY, TEXAS ( DENTON COUNTY OFFICE OF HISTORY AND CULTURE) (PY2014) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and County of Denton, Texas, a governmental entity existing under the laws of the State of Texas, contracting on behalf of its Courthouse -on- the - Square, African American, Bayless - Selby House, Old No. 14 Fire house, Elm Ridge Church, Welcome Center and Outhouse Museums (collectively, the "MUSEUMS "): 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 %); 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; as well as to engage in historical restoration and preservation projects and activities and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with MUSEUMS, as a governmental 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, MUSEUMS are well equipped to perform those activities; and WHEREAS, both CITY and MUSEUMS have a secondary source of authority to enter into this Agreement as an interlocal cooperation agreement, pursuant to Chapter 791 of the Texas Government Code, as: the Agreement is authorized by both governmental bodies; the Agreement states the purpose, terms, rights, and duties of the contracting parties; the consideration is being paid by CITY out of current revenues; the compensation is fair; and the services to be performed are "museum services" authorized under §791.003(3)(F) of the Texas Government Code, which each party is authorized to perform individually; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and MUSEUMS agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by MUSEUMS under this Agreement, CITY agrees to reimburse a portion of the eligible expenditures by MUSEUMS during the 2014 calendar year, from hotel tax revenue collected by CITY during its 2013 -14 fiscal year, at the rates and in the manner specified herein (such payments by CITY to MUSEUMS sometimes herein referred to as the "agreed payments" or "hotel tax funds "). HOT Funds PY2014 Denton County Office of History and Culture Page 1 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (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 quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31S`, June 30th, and September 30t' and December 31St (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall reimburse to MUSEUMS, a portion of eligible expenditures made during calendar year 2013, in an amount equal to the lesser amount of. Five and Sixty Six One Hundredths percent (5.66 %) of the annual base payment amount, or the fixed contract amount of One Hundred Eight Thousand, Five Hundred and Seventy Dollars ($108,570). This amount will be divided into three quarterly payments equal to 33% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The third quarterly payment will represent 33% of the fixed contract amount, or the unpaid remainder of 5.66% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projections, CITY may reduce MUSEUMS' budget at any time during the contract period. Each of the three scheduled quarterly payments is subject to receipt of funds, confirmation of eligibility, and CITY's timely receipt of the required quarterly reports. HOT Funds PY2014 Denton County Office of History and Culture Page 2 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to MUSEUMS of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected during that report quarter. Quarterly payments will be made in the first three quarters of the calendar year only. (b) Each of the three quarterly payments shall be paid within twenty -one (21) days after receipt of the required quarterly reports for the first three quarters. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the corresponding reports are received and approved, and such approval shall not be unreasonably withheld. 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 current contract period. Any future funding is solely the responsibility of MUSEUMS. (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 MUSEUMS' expenditures deviate materially from its approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to MUSEUMS of the agreed payments of hotel tax funds specified above, MUSEUMS agree 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 to engage in historical restoration and preservation projects and 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 31 t of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by MUSEUMS may be spent for day -to -day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in MUSEUMS' budget (Exhibit "A ") and 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). HOT Funds PY2014 Denton County Office of History and Culture Page 3 2.3 Specific Restrictions on Use of Funds. (a) MUSEUMS agree to demonstrate strict compliance with the record keeping and apportionment limitations imposed by TEx. TAx CODE §351.101(e) and §351.108 (c) and (d). MUSEUMS shall not utilize hotel tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in ¶ 12.1 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) MUSEUMS shall adhere to the annual budget (Exhibit "A ") as approved by the City Council for each calendar year, for all operations of MUSEUMS in which the hotel tax funds shall be used by MUSEUMS. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to MUSEUMS 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. (b) MUSEUMS acknowledge that approval of the budget (Exhibit "A ") by the Denton City Council creates a fiduciary duty in MUSEUMS with respect to the hotel tax funds paid by CITY to MUSEUMS under this Agreement. MUSEUMS 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. (c) Upon the application or consent of MUSEUMS, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in 11.2(b), extend the term, or otherwise alter the performance obligations of MUSEUMS, without approval of the City Council by ordinance. 3.2 Separate Accounts. MUSEUMS shall maintain any hotel tax funds paid to MUSEUMS 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. MUSEUMS shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by MUSEUMS. 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 HOT Funds PY2014 Denton County Office of History and Culture Page 4 written request of the Denton City Council, the City Manager or designate, or any other person, MUSEUMS shall make such financial records available for inspection and review by the party making the request. MUSEUMS understand and accept that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. Within thirty days after the end of every contract quarter, MUSEUMS 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), MUSEUMS shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. MUSEUMS 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. MUSEUMS shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of MUSEUMS' Boards of Directors, as well as any other meeting of any constituency of MUSEUMS, 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, 2014, and terminate at midnight on October 31, 2014. However, the program period shall commence on January 1, 2014 and terminate at midnight on September 30, 2014. 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. (b) In the event this contract is terminated by either party pursuant to Section 4.2(a), CITY agrees to reimburse MUSEUMS for any contractual obligations of MUSEUMS undertaken by MUSEUMS in satisfactory performance of those activities specified in ¶ 12.1 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 ¶ ¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse MUSEUMS, or to assume the performance of any contractual obligations of MUSEUMS, for or under any contract entered into by MUSEUMS as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. HOT Funds PY2014 Denton County Office of History and Culture Page 5 (c) Further, upon termination pursuant to ¶4.2(a), MUSEUMS 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, and 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; 4) a final accounting of all expenditures and tax funds on the day of termination. MUSEUMS will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by MUSEUMS 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 MUSEUMS; (b) The insolvency of MUSEUMS, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by MUSEUMS for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or MUSEUMS 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 MUSEUMS 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 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 ¶ ¶4.3 or 4.4, MUSEUMS agree 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. HOT Funds PY2014 Denton County Office of History and Culture Page 6 V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by MUSEUMS with another private entity, person, or organization for the performance of those services described in 12.1 above. In the event that MUSEUMS enter into any arrangement, contractual or otherwise, with such other entity, person or organization, MUSEUMS 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. MUSEUMS 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. MUSEUMS shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and MUSEUMS shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. MUSEUMS shall not be considered a partner or joint venturer with CITY, nor shall MUSEUMS 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, MUSEUMS AGREE 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 KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY MUSEUMS 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 MUSEUM, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. MUSEUMS 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: CITY City Manager City of Denton 215 E. McKinney Denton, TX 76201 MUSEUMS Denton County Museums Peggy Riddle 110 W. Hickory St. Denton, TX 76201 HOT Funds PY2014 Denton County Office of History and Culture Page 7 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 MUSEUMS 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 Triplicate Originals. This Agreement is executed in triplicate 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. MUSEUMS shall provide insurance as follows: Statutory Workers' Compensation and Employers' Liability ($100,000 /$500,000 /$100,000). Proof of coverage shall be submitted prior to any payment by CITY. 5.13 Waiver of Immunity for Suit to Enforce. By executing and authorizing the execution of this contract, DENTON COUNTY, TEXAS expressly waives immunity from any suit brought by CITY for the enforcement of the provisions contained herein, and further expressly waives the presentment required of Tex. Loc. Gov't Code sec. 89.004 as a prerequisite to such suit. HOT Funds PY2014 Denton County Office of History and Culture Page 8 EXECUTED this ATTEST: 500 JENNIFER WALTERS, CITY SECRETARY ATTEST: Secretary day of , 2013. THE CITY OF DENTON, TEXAS Im GEORGE C. CAMPBELL, CITY MANAGER APPROVED AS ETA BURGESS CITY ATTORNF,S DENTON COUKTY, TEXAS By: COUNT GE APPROVED AS TO LEGAL FORM: HOT Funds PY2014 Denton County Office of History and Culture Page 9 Exhibit A Denton County Office of History and Culture County Museums 2014 ADVERTISING Magazines, Newspapers & Internet $ 9,169 Marketing (Visitors Guide, Brochures) 11,200 $ 20,369 HISTORICAL Archival Supplies $ 8,000 New Exhibits 15,000 Signage Production (CHOS & Historical Park) 11,200 $ 34,200 HISTORICAL ADMINISTRATION Contract Labor $ 24,531 Tourism Coordinator 29,470 $ 54,001 TOTAL $ 108,570 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Phil Williams at 349 -8487 ACM: Bryan Langley SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement (PSA) with Freese and Nichols, Inc. and the City of Denton for engineering and support services related to the five (5) Year Capital Improvement Plan for transmission and substation project for Denton Municipal Electric; and providing an effective date (File 5372 -in an amount not -to- exceed $12,150,000). The Public Utilities Board recommends approval (7 -0). FILE INFORMATION With a transmission and substation Capital Improvements Plan (CIP) budget exceeding $245,000,000, it is necessary for Denton Municipal Electric (DME) to utilize consulting engineers and other professional support services extensively for support and assistance with program management, project management, project development, project design, permitting, and constriction management. Freese and Nichols, Inc. has proposed to provide these services to DME with approximately 50% of the contract amount estimated for project management, engineering, permitting, and constriction management services and the other approximately 50% for land and right -of -way procurement services. A detailed description of the services to be provided is included in the Public Utilities Board Agenda Information Sheet (Exhibit 1). In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. The City of Denton has previous successful experience with the recommended firm, and has elected to not seek qualification based competition for these identified services. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On September 23, 2013, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. On October 1, 2013, this item was presented to Council for discussion only. The staff presentation and Freese and Nichols presentation are included as Exhibits 2 and 3. RECOMMENDATION Approve a Professional Services Agreement between the City of Denton and Freese and Nichols, Inc. in the not to exceed amount of $12,150,000. Agenda Information Sheet October 15, 2013 Page 2 PRINCIPAL PLACE OF BUSINESS Freese and Nichols, Inc. Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT Services to be performed will begin upon Council approval and will continue until the completion of the project as defined in the Professional Services Agreement which is estimated to be approximately five (5) years. FISCAL INFORMATION The charges for work under this contract will not exceed $12,150,000 and will be funded out of amounts budgeted for specific projects. Much of the work proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered by the City through the Public Utility Commission Transmission Cost of Service Program (TCOS). EXHIBITS Exhibit 1: Public Utilities Board Agenda Information Sheet without Exhibits Exhibit 2: October 1 Council Staff Presentation Exhibit 3: October 1 Council Freese and Nichols Presentation Exhibit 4: Public Utilities Board Draft Minutes Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance 1 -AIS -File 5372 Exhibit 1 PUBLIC UTILITIES BOARD AGENDA ITEM #4 AGENDA INFORMATION SHEET AGENDA DATE: September 23, 2013 DEPARTMENT: Utilities UTILITIES ACM: Howard Martin, Utilities, 349 -8232 SUBJECT Consider recommending approval of a Professional Services Agreement by and between the City of Denton, Texas and Freese & Nichols, Inc., Denton, Texas, for professional engineering services and other professional support services for the DME CIP projects in an amount not to exceed $12,150,000 (File 45372). BACKGROUND With a transmission and substation 5 year CIP budget of $257,000,000, it will be necessary for Denton Municipal Electric (DME) to utilize consulting engineers and other professional support services extensively for support and assistance with program management, project management, project development, project design, permitting, and constriction management. Freese & Nichols has proposed to provide these services to DME. The approved DME CIP contains 17 substation projects and 11 transmission line projects scheduled to be built, tested, and energized in 5 years. This is a large and unusually complex CIP done on an aggressive schedule. The DME CIP includes complicated conversions of transmission lines and substations from 69KV to 138KV. In addition some substations will require extensive rebuilding in close quarters using existing sites. Work will have to be done in a carefully orchestrated order that allows for keeping some facilities energized while other facilities are de- energized. Scheduling and coordination of these projects will be complex and difficult and will require great care to assure maintaining electric service and to assure public and worker safety. The application of modern project management tools to assure the many project work activities are done on time and in proper sequence and coordination to other activities is needed. In addition, the application of modern project management tools will be of value in meeting project schedule deadlines and in avoiding rework that can be both costly and time consuming. A typical DME substation project will have over 50 elements of work that will need to be planned, scheduled, coordinated and tracked. AIS — PUB Agenda Item 44 September 23, 2013 Page 2 of 4 The proposal from Freese & Nichols also provides for extensive land and right -of -way procurement services. The DME CIP is land procurement intensive and requires an estimated 300 parcels of land to be transacted in 3 years. The proposal from Freese & Nichols, included as Exhibit 1, contains detailed information on services and costs. The estimated, not to exceed, cost stated in the proposal is $12,150,000. Approximately 50% of this amount is for project management, engineering, permitting, and constriction management services. The other approximately 50% is for land and right -of -way procurement services. It should be noted that this professional services contract provides that DME pays only on the basis of actual work performed and guarantees no minimum expenditure. Only work that is needed will be authorized. The contract may be terminated with 30 days notice at any time with no penalty. Freese & Nichols has recently demonstrated applicable project management expertise on CREZ (wind) transmission projects for Oncor and large oil and gas projects for Chesapeake. In addition, Freese & Nichols currently is providing project management support for a large Parker County CIP. Freese & Nichols has gained significant experience with use of a state of the art project management software tool called eBuilder. eBuilder provides an automated process for organizing and tracking project work elements as well as tracking costs and budget status. Freese & Nichols has a good reputation across a number of industries. Freese & Nichols has a long history and good track record on work for the City of Denton. Freese & Nichols was founded in Fort Worth and remains headquartered in Fort Worth. Freese & Nichols has a substantial office in Denton, which will expand with the addition of this project. DEFINITIONS Project management is the discipline of planning, organizing, and controlling resources to achieve specific project goals. Project Management requires the application of knowledge, skills, tools, and techniques in organizing project work elements to manage the primary constraints of scope, time, quality and budget. Program management is the process of managing a number of related projects. OPTIONS 1. Recommend awarding a Professional Services Agreement to Freese & Nichols, Inc. 2. Not recommend awarding a Professional Services Agreement to Power Engineers, Inc., and direct that other actions be taken to complete the required actions. AIS — PUB Agenda Item 44 September 23, 2013 Page 3 of 4 RECOMMENDATION DME recommends awarding the contract for professional services to Freese & Nichols, Inc., in an amount not to exceed $12,150,000. ESTIMATED SCHEDULE OF PROJECT The work under this contract will begin as soon as practical after approval by the City Council and is estimated to take approximately five years. PRIOR ACTION/REVIEW (Council, Boards, Commissions) There has been no prior action related to this proposed contract. The proposed contract is consistent with project information detailed in the approved CIP. DATE SCHEDULED FOR COUNCIL APPROVAL October 1, 2013 FISCAL INFORMATION The charges for work under this contract will not exceed $12,150,000 and will be funded out of amounts budgeted for specific projects. Much of the work proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered by the City through the Public Utility Commission transmission cost of service program (TCOS). BID INFORMATION Texas statutory law provides that procurements for professional services as well as for personal services are made in accordance with the "Professional Services Procurement Act" (professional and personal services may not be bid). The provisions of Texas Local Government Code, Section 252.022(a)(4) provide that procurements for professional and for personal services are exempt from the requirements of competitive bidding. EXHIBITS 1. Summary of Project Costs 2. Freese & Nichols Schedule of Charges for Professional Services 3. Freese & Nichols Schedule of Charges for Property Acquisition 4. ROW /Land Acquisition Services Milestone Payment Schedule 5. Proposed Professional Services Agreement AIS — PUB Agenda Item 44 September 23, 2013 Page 4 of 4 Respectfully submitted: Phil Williams General Manager Denton Municipal Electric Prepared by: Brent Heath Executive Manager Energy Delivery Denton Municipal Electric 16 C C11 DME CON54MTMB����RACTS $ $17, N Denton Municipal Electric CIP Assistance October 1, 2013 • Kendall King, P.E. Vice President /Principal, Energy Division Manager • Ron King, P.E. Associate, Freese and Nichols' Denton Office Manager • Aaron Fricke, P.E. • Nicole Costanza President, The Norfleet Group, LLC DME's Challenge Approach Related Experience Project • Tools Project Denton Municipal Electric's Capital Improvement Program • $257,000,000 Program • 44 Projects • 300+ tracts requiring easements or purchase • Critical improvements to accommodate load growth, enhance reliability • Goal: Complete all projects within 5 years, Planning, Permitting & ROW in 3 years • DME Engineering staffed /organized to support base -load projects ($80 million last five years) • C I P = 5 fold increase in project workload • At program peak, 15 to 18 concurrent projects • Public Involvement, DRC and ROW processes: — complex — time intensive — "critical path" on schedule — Senate Bill 18 impact on schedule • Guide program, determine needs • Develop and plan projects, set goals • Develop project schedules • Develop project budgets • Write specs for equip & mat'I • Review /QC work of subs • Define scope of work for subs • Prioritize work of subs • Conduct project meetings • Prepare submittals for DRC • Coordinate public involvement • Coordinate teams, resolve problems • Track schedule progress • Track budget status • Prepare status reports • Process payment requests DME's Project Managrerc • Guide program, determine needs • Develop and plan projects, set goals • Write specs for equip & mat'I • Review /QC work of subs • Define scope of work for subs FNI's Project Managers • Develop project schedules • Develop project budgets • Prioritize work of subs • Conduct project meetings • Prepare submittals for DRC • Coordinate public involvement • Coordinate teams, resolve problems • Track schedule progress • Track budget status • Prepare status reports • Process payment requests Chesapeake Energy - Barnett Gathering System Development 2007 -2012 • $1.5+ Billion Program — 400+ pipeline projects — 17 compressor stations • Program Management (Processes, metrics, reporting) • Project Management • Project Scheduling • GIS Program Development • Permitting Oncor Electric Delivery 2009 - Present • $1.6+ Billion Program — 850 line miles — Thousands of ROW Parcels • ROW Coordination • Project Coordination • GIS Program Development • Permitting Services • Materials Management • Assisted ONCOR through SB -18 impacts Program Management Project Management Assistance Right of Way Acquisition DRC /SUP Process Support Project Controls (schedule, budget maintenance) GIS Database Administration Construction Phase Assistance & Inspection Engineering Support (as needed) �VWIMVi�P�IM 1 ��R 5 yy �. a. l • Project Execution Process Documentation and Development — Increased workload often reveals weaknesses in existing processes — Documenting processes improves efficiency and quality • Establishes standards for work products, helps project teams produce work products in a consistent format • Establishes communications protocols and expectations for task durations — Provides a basis for troubleshooting when something goes wrong • Program Level Reporting — Rolled up cost & schedule data — Executive level status reports — Program level metrics Execution Process Flow I • Day to day management of project team (ROW, design consultant, s •cgWUS,mox daa T / / cr • /s/ a ' DME staff, environmental, etc.) od.d Sdarya Wed jxajA3 it 5/1bA1.3 r ,d r„i d x• d l7 V / n3 n ox aya s J P .s /aalxs • Meetings (schedule & facilitate u0 e dax: 5 s/] v3 meetings, prepare materials, °vERA«PR °JE°T ° °sT generate and distribute agenda enda g and minutes) "ZI1111-1 141.1 ,a • Prepare and maintain project schedules /budgets • Prepare project status reports rt �w • Prepare and maintain critical actions items list • Coordinate ROW efforts with DME staff, design consultant, survey, geotech, permitting and environmental team members • ROW scheduling considerations — Prioritize ROW based on project schedule and program objectives — Work with ROW team, develop "critical path" timeline for acquisitions • Compliance with requirements of SB 18 • Maintain ROW GIS database • Support public involvement process • Pre-acquisition ROW Acq�uisitioin Process SB18 services • Title research (Tftle, war* to Wsgail� I" Laindi Olwner Vt- Appraisals Present �efflerft packap wfi(i offer ki • I . ....... . Survey permissio n 1 J Linal Off er Letter imm I Addiftiostal Laird owner Visas as "i �Pwepare p fficm� and right -of -entry • Negotiation 2 • Condemnation Z' ...... . ...... . . . . r ------------------ I Sey support ury and apradsMl Iniluall aaa • r Relocation itig support He Petition for Heartirkig Hearing date will vary depencling on, Court schedule, Hearing StatiSUCS (duraitmni from fiil@d heatrine) Average 10 weeks Stliev 4 weeks Miaxlrr=22weeks Where filed anid no heanng, the average duration 1%. 7 weeks, vAev is 4-5 weeis and miax of 17 weeks Heari Armii, AupAired 20 weeks beiseoea, M" and hi date Condeminanois Hsi (I week) I Negotiation confinues 1whi reasonable 2 weeks slack to rneet (sUr legal obhgatbon l30 days to nagatute and 14 days to respand to FOLP 49 • Support DME to shepherd projects through DRC process — Presentation of overall Program to DRC — Pre - review design consultant(s) submittals — Attend pre - submittal, pre -DRC and DRC meetings — Assist with SUP process for substations • Public involvement support, identify and address issues before formal public hearings • Assist with preparation of materials for formal public hearings • Provide technical assistance to support DME staff during negotiations on imposed conditions (i.e. landscaping /screening, fire suppression, access /traffic control, building materials, sidewalks, etc.) • Scheduling — Prepare and maintain individual project schedules and overall program schedule — Forecast resource needs for ROW, engineering, DRC functions, public involvement, permitting, etc. — Materials forecasts • Cost Control — Budgetary project cost estimates — Day -to -day project cost accounting (design, ROW, materials, construction) — Track and allocate costs for recovery of T -costs — Trend analysis of costs at project and program level • Planning — Cash flow estimates — Scenario planning based on project schedules and funding cycles Bid Phase Assistance — Pre -bid meeting — Bid document distribution — Pre -bid RFI's, addenda — Tabulate bids, prepare contract documents Construction Contract administration — Document management — Payment requests, change orders — Project controls (schedule and budget) Construction management — Pre -work conference — Progress conferences — Project close out r -� SuaM,na� �FE � raREO E=.Faa,�FOaMarow Builder. 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Description Original Budget Changes Current Buidgel Changes' Charges* Projected Budget L) Details 001,401 401 - ROW/SURVEY/PERIAITTING C GG 0.00 A (DO 6,40 0.00 0.04 �6� 001411 411 - ROW/SURVEV/PERMITTENG coo 0.00 000 0,QG iD 00 0.00 Forms 001,491 491- ROW/SURVEY /PERMITTING 4,00 0,00 0 (DO 6.40 0.00 G.OD rt Processes G02 4M 43R- PIPE, VALVES, FITTINGS 3,486AC6 GO 0.00 3,495,+06,00 DAIG 000 3,43C,466.00 Documents 002,445 443 - PIFE VALVES, FITTINGS 275,1r 5,2 (DO 00 0,00 271,2LIA (DO DOI) 0.00 275,2000 schedule 002451 451 -PIPE, VALVES, FITTINGS 360.00000 0.00 360000 00 0,0G iD 00 360,000.00 Cost 003.401 401 - INSTALL - PIPELINE 1,127,668 GO 0.00 1127,663 CO 0,00 0.00 1127,668.00 043.402 402 - INSTALL - PIRELINE 17.50000 0.00 17,SGOOD 0,QG iD 00 171500100 Cost Summary 003419 419 - INSTALL - PIPELINE 273,9D4,00 0.00 279,SCI0 (DO DOI) 0d10 273,9000 Funding S�un�es 003.450 450 - INSTALL - PIPELINE 2156.265 00 0.00 211 0,QG iD 00 266,265100 Ei L),i:.,1, 003,491 491 - INSTALL - PIPELINE 1,999,717 00 0,00 1,999,717,00 6.40 0.00 1,999,717.04 Forecasts 064.436 436 - CL)P MEASLREIMENT 40.(700 GO 000 40,00000 0,06 10.00 40,000.00 Co in in it ire nts 005,479 479 479 - BUILDINGS C GG 0,00 ADO 6,40 0.00 0.00 Actual 1--to 737:411 , 4ij gi,,TcwFipfisir, nton rM n R0 .Ann 0 n, 1)0� ann f� An Totals 9,2:47,551.00 0.00 9,247,551.00 0.00 0.00 9,247,551.00 III'M 11 �' WOM L W Of avn711'f ,ti I'fcd:l- ... 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Thank You! 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Exhibit 4 DRAFT MINUTES PUBLIC UTILITIES BOARD September 23, 2013 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on Monday, September 23 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901A Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Leonard Herring, Phil Gallivan Barbara Russell and Lilia Bynum Absent: George Campbell City Manager Ex Officio Members: Howard Martin, ACM Utilities OPEN MEETING: ITEMS FOR INDIVIDUAL CONSIDERATION: 4) Consider recommending approval of a Professional Services Agreement by and between the City of Denton, Texas and Freese & Nichols, Inc., Denton, Texas, for professional engineering services and other professional support services for the DME CIP projects in an amount not to exceed $12,150,000 (File 45372). Phil Williams, General Manager DME, stated that at the last meeting Freese & Nichols made a presentation and Williams will give some of the reasons they need the company. Williams stated that the project is $257 million and a five year CIP which consist of transmission lines and substations. The substations consist of 140 acres of land to buy with 65 tracts of land. There will be 75 public meetings with 51 public hearings just for the substations. For the transmission lines there are 30 miles of transmission lines with 6 public meetings and 22 public hearings. That includes 235 tracts of ROW to acquire. Williams stated that currently DME has two engineers, three engineering techs in the transmission substation portion of the business that needs to be supplemented. Freese and Nichols services include: $ 6,042,600 Land acquisition $ 3,450,800 Project management $ 572,600 Land permitting and development $ 948,800 Civil engineering $ 1,135,200 Constriction inspection and management $12,150,000 Draft Minutes of the Public Utilities Board Meeting September 23, 2013 Page 2 of 3 1 Cheek asked the estimate of land acquisition on this project. Sears answered that nuns about $1 2 million per mile and there is about 15 -18 that has to be purchased. Williams added from a 3 transmission standpoint the ROW is about $30 million plus buying the acreage for the 4 substations. Of course some will be more expensive than others. Sears added it would be in the 5 $15 -25 million range for transmission line only. Some will also have strictures involved. 6 7 Cheek then asked if we are using legal services through Freese and Nichols or are we using our 8 own. Williams answered we are using Kelsey Legal services. 9 10 Williams then talked about Freese and Nichols qualifications including; 11 Oncor CREZ projects, 12 Chesapeake oil and gas routing and siting, 13 City of Denton record of excellence on roads, water and wastewater, and drainage projects 14 15 They also have a strong national and state record of performance. 16 DME also wanted to go with the local firm with more back up in the Fort Worth office. 17 18 Williams then showed the current DME consulting contracts and why DME needs the 19 consultants including Freese and Nichols for this project. DME has the need for special 20 expertise and the need for additional short term resources. Staff would pay for the house used. 21 They have a high level of expertise available on part time cost basis and the costs spread over 22 many clients. DME will have access to a team of 15 experts but full time equivalent of only five. 23 Skills change as project progress from land to permitting to constriction. Municipals are not 24 conducive to changing employees often and quickly. 25 26 Lastly Williams stated that the kind of work that DME needs now comes in waves. The 69KV 27 loop that is trying to be replaced now is 50 years old. The Spencer Power Plant is 39 years old 28 and the 138 KV transmission loop around Denton is 25 years old. 29 30 Gallivan stated that five years is a compressed period for all that has to be accomplished. The 31 population numbers aren't staggering. Why wouldn't it be seven, eight or ten years to run along 32 growth if it happens. Williams answered that one reason is aging infrastructure that has reached 33 its end of life. If there was no growth about 50 percent would have to be replaced anyway. 34 Sears added capacity is also needed. 35 36 Gallivan asked if some of the substations are replacements. Williams answered three are 37 replacements, two are expansions and one is a rebuild. Williams added that DME was behind on 38 growth. The summer of 2011 when staff came within hours of having to have rolling outages 39 was a nervous time. Staff would like to get in front of the subdivisions that are coming in. 40 Gallivan asked if DME is tied to five years if it could be seven years. Williams answered it 41 could be. The northeast transmission route that including siting and the Kings Row substation 42 was approved by this Board and City Council in January 2012. A year and a half later staff is 43 just two thirds of the way on getting the land for that project. Williams stated getting this 44 accomplished in five years is a challenge at this pace it will not get completed. Gallivan added 45 that having the flexibility you will not leave a trail of `do overs'. Williams added that is why 46 they need the expertise for infrastructure, growth and reliability. Draft Minutes of the Public Utilities Board Meeting September 23, 2013 Page 3 of 3 2 Herring asked if DME could stay within budget on this project. Williams agreed. Herring then 3 asked if this five year project can be built with the current staff. Williams answered no. Herring 4 added that there has been a lot of good things said about Freese and Nichols, is there any other 5 consultants out there that staff could get a completive quote from. Williams answered that there 6 are consultants that can do pieces but not the full package like Freese and Nichols. 7 8 Herring stated that DME is already behind, we just need to do this. Martin stated to keep in 9 mind that the $257 million will be filed with the PUC and there will be a rate of return that staff 10 is counting on to offset potentially additional purchase of the TMPA debt. The sooner the 11 projects are in operation the sooner that can be filed with the PUC and receive that rate of return. 12 13 Herring asked how soon Freese and Nichols could get started. Kendal King, Freese and Nichols, 14 stated they are ready to go just waiting for the go head. Williams added this is scheduled to be 15 approved through City Council October 15. 16 17 There was some further discussion regarding the consultants and the projects. 18 19 There was a motion to approve by Board Member Herring, second by Board Member 20 Bynum. The vote was 7 -0 approved. 21 22 Adjournment 10:53 a.m. ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WITH FREESE AND NICHOLS, INC. AND THE CITY OF DENTON FOR ENGINEERING AND SUPPORT SERVICES RELATED TO THE FIVE (5) YEAR CAPITAL IMPROVEMENT PLAN FOR TRANSMISSION AND SUBSTATION PROJECTS FOR DENTON MUNICIPAL ELECTRIC; AND PROVIDING AN EFFECTIVE DATE (FILE 5372 -IN AN AMOUNT NOT -TO- EXCEED $12,150,000). 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 Freese and Nichols, Inc. to provide professional engineering and related services for Denton Municipal Electric, 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 City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5372 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY IM 6 -ORD -File 5372 THE STATE OF TEXAS COUNTY OF DENTON PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the day of 2013, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Freese and Nichols, Inc., with its corporate office at 4055 International Plaza, Suite 200, Fort Worth, Texas 76109 hereinafter called "Architecture /Engineering Professional" or "FNI," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF ENGINEERING PROFESSIONAL The City of Denton and Denton Municipal Electric's (DME) Capital Improvement Program (the Project) will include planning, design and construction of various transmission lines and substation improvements required to upgrade the City's electrical transmission system from 69kV to 138kV. FNI shall provide a variety of services to support DME in execution of the project including program and project management assistance, permitting assistance, ROW /property acquisition services and construction phase assistance including on site representation during construction. FNI's services may also include, if requested by DME, site /civil, structural, storm water management, environmental services, GIS, or other general engineering services that may be needed from time to time to support the timely execution of the project. SECTION 2 COMPENSATION The Owner shall compensate FNI as follows: 2.1 FOR BASIC SERVICES 2.1.1 For Basic Services and related Expenses described in Article I of Attachment A, the total compensation shall be based on hourly rates plus reimbursable expenses incurred by FNI and FNI's employees in the interest of the Project as defined in the General Conditions with a maximum fee limit of Twelve Million One Hundred Fifty Thousand Dollars ($12,150,000.00). Progress payments for Basic Services shall be paid monthly on the basis of the services completed at the end of the month. Page 1 2.1.2 Compensation for Basic Services shall be based on the Schedule of Charges in Attachment CO. 2.2 FOR ADDITIONAL SERVICES 2.2.1 Additional services as described in Article II, if any, shall be approved in writing and authorized in advance by the OWNER and shall be performed and conducted for fees that are negotiated as appropriate. Progress payments for Additional Services shall be paid monthly on the basis of the services completed at the end of the month. 2.2.2 Compensation for Additional Services shall be based on the Schedule of Charges in Attachment CO. SECTIOIJ This Agreement expressly includes this three (3) page Agreement, together with the following documents which are attached hereto and are incorporated herewith for all purposes: 1. Attachment "A" - SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER CAPITAL IMPROVEMENT PROGRAM (CIP) PROGRAM MANAGEMENT FOR DENTON MUNICIPAL ELECTRIC (DME) 2. Attachment "CO" COMPENSATION 2. The City of Denton General Conditions to Agreement for Architectural or Engineering Services. If a conflict should arise between Attachment "A" and the City of Denton General Conditions to Agreement for Architectural or Engineering Services, then the City of Denton General Conditions to Agreement for Architectural or Engineering Services shall prevail. This Agreement is signed by the parties hereto effective as of the date first above written. "OWNER" THE CITY OF DENTON, TEXAS A Texas Municipal Corporation ATTEST: JENNIFER WALTERS, CITY SECRETARY wo APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY M. ATTEST: � APPROVED AS TO N M07V, FORM: By: ... Page 3 GEORGE C. CAMPBELL CITY MANAGER "FNI" FREESE AND NICHOLS, INC, A Texas Corporation I: ATTACHMENT A SCOPE OF SERVICES AND RESPONSIBILITIES OF OWNER CAPITAL IMPROVEMENT PROGRAM (CIP) PROGRAM MANAGEMENT FOR DENTON MUNICIPAL ELECTRIC (DME) GENERAL: The City of Denton and Denton Municipal Electric's (DME) Capital Improvement Program (the Project) will include planning, design and construction of various transmission lines and substation improvements required to upgrade the City's electrical transmission system from 69kV to 138kV. FNI shall provide a variety of services to support DME in execution of the project including program and project management assistance, permitting assistance, ROW /property acquisition services and construction phase assistance including on site representation during construction. FNI's services may also include, if requested by DME, site /civil, structural, storm water management, environmental services, GIS, or other general engineering services that may be needed from time to time to support the timely execution of the project. ARTICLE I BASIC SERVICES: FNI shall render the following professional services in connection with the development of the Project: A. Program Management Support Assist DME to develop CIP management organizational structure, including organization chart and responsibility matrix. 2. Document Existing Project Execution Processes and Develop New Processes As Needed a) Establish workflows, standards and communications protocols for the following processes: (i) General project execution plan (ii) Route development/public involvement process (iii) ROW acquisition (iv) Permitting (1) DRC (2) SUP (3) Building permits (4) Environmental permits (SWPPP) (5) ERCOT review (v) Design phase (1) Civil /site development (2) Transmission line (3) Substation design (vi) Construction phase (1) Material acquisition (2) Construction contractor selection /contract letting (3) Construction contract administration (4) Project close -out FNI Owner Exhibit A -] IC (vii) Program Level Progress Reporting (1) Data sources (2) Reporting frequency (3) Report distribution (viii) Project Cost Accounting (1) Data sources (2) Reporting frequency (3) Report distribution 3. Program Level Planning and Reporting a) Preliminary project schedule /budget development b) Project prioritization c) Resource identification and allocation d) Cash flow analysis e) Program level progress reports 4. eBuilder Platform Development /Maintenance a) Consult with eBuilder to develop tailored solution for DME b) Configure the following eBuilder modules (i) Document module (ii) Cost module (iii) Scheduling module (iv) Planning module c) Develop workflows and smart forms for the processes listed above d) Develop custom reports and dashboards to support project and program reporting e) Provide administration services for eBuilder platform, (i) Issue /control eBuilder accounts (ii) Develop user guide and provide training for eBuilder users (iii) Serve as `on -call' technical resource for eBuilder users to address questions and problems Project Management Assistance Project management assistance will be provided for all projects comprising the CIP Program from initial project development, through public involvement, design, procurement, construction and project close -out. Project management assistance includes but is not limited to the following: Exhibit A -2 FNI Owner, I . Project Controls a) Schedule Development & Maintenance b) Budget Development & Maintenance 2. Project Execution Process Tracking a) Analyze project progress against execution processes to address conflicts, bottlenecks or other issues causing miscommunication, rework, or other problems impacting schedule, quality or efficiency. b) Periodically work with project participants to review project execution processes to streamline processes and address concerns. c) Develop a change management system to roll -out process changes to project participants. 3. Day -to -Day Management of Project Team a) Coordinate daily with DME project manager to receive directions, establish priorities, discuss and resolve issues, document decisions by DME, and keep DME project managers informed of plans, activities and action items. b) Facilitate communication between project team members c) Monitor project deadlines d) Develop, maintain and follow -up on action items e) Assist with conflict and problem resolution 4. Meeting support a) Conduct recurring project team meetings b) Conduct recurring management meetings c) Conduct periodic /special meetings as needed d) Prepare agenda /minutes for all meetings e) Facilitate Team Meetings f) Development of action items 5. Project status tracking and reporting a) Compile data from various sources b) Prepare and analyze progress reports c) Forecast completion dates and develop recovery plans 6. Support Public Involvement Process a) Assist DME with prioritization of projects and study areas for Public Involvement Process FNI Owner Exhibit A -3 b) Assist DME with development of overall schedule for Public Involvement Process c) Manage sub - consultants work in development of meeting materials d) Coordinate /support DME Community Relations to notify impacted landowners and other stakeholders e) Assist with public meeting logistics fl Attend public meetings, capture feedback and coordinate required follow -up 7. Material Forecasting and Tracking a) Utilize eBuilder and scheduling tools to forecast material need -by dates to establish milestones for material orders. b) Utilize eBuilder to track status of material orders. 8. Resource Needs Forecasting and Schedule Impact Analysis a) Utilize eBuilder and scheduling tools to forecast resource needs for project execution (i.e. ROW, permitting, legal, Public Involvement, engineering) to identify peaks, and analyze schedule impacts due to resource limitations. C. Permitting Assistance 1. Overall Program Presentation to DRC Staff a) Assist DME with and conduct an overall program presentation to the DRC staff, to communicate program goals and schedules, to identify key recurring and special issues, to discuss general timing of submittal loading on departments, and to discuss and receive feedback that results in increased efficiencies of the processes. b) Perform notification of desired attendees c) Meet with DME's consultants to discuss needed exhibits d) Assist DME staff with reserving room for the presentation e) Attend meeting and facilitate presentation and discussion f) Collect feedback, and document and monitor action items g) Conduct additional correspondence with DRC staff where additional clarification is needed 2. DRC Pre - application (each project) a) Meet with DME staff and civil engineering consultant to review applicable Development Code b) Develop detailed list of questions, including anticipated variance requests; send to DRC staff c) Attend pre - application meeting d) Develop, document and monitor action items from pre - application FNI� Owner Exhibit A -4 e) Attend additional meetings with DRC staff where clarification needed 3. Assist with Project Submittals to DRC (site plans, preliminary plats, final plats, construction plans, SUP's, CLOMR's, LOMR's, Zoning Board of Adjustments, etc.) a) Meet with DME staff and consultants to develop a comprehensive listing of required submittals b) Monitor statuses of submittals with respect to program schedule c) Provide preliminary review of submittal with respect to Denton Development Code (DDC), and provide feedback to submitting consultant d) Attend pre -DRC (if allowed) and formal DRC meetings to discuss DRC comments e) Document and monitor action items from these meetings f) Set up and attend separate meetings with individual DRC staff members as needed for clarifications /discussions 4. Monitor and report on status of submittal approvals at P &Z and City Council, including any follow -up action items 5. Assist in a similar manner with Project Submittals to County, where applicable 6. Assist with Construction Permitting a) Manage and monitor the pre- construction permitting activities for: (i) Development Contract (ii) Environmental /cultural permits (if required) (iii) SWPPP (iv) Building Permit (v) ESA Clearance /Permitting (vi) Grading (and other land disturbing) Permit (vii) Tree Permit (viii) Performance and Payment Bonds (ix) Other Agency Permitting (County, TxDot, franchise utilities, TMPA, Oncor, etc.) (x) Pre - construction conference General Engineering and Environmental Services It is anticipated that services described in this section will be provided by others, but can be provided by FNI if requested by DME. I . Prepare site grading, drainage and paving plans.. IM FN I Owner 2. Prepare foundation structural designs for equipment and transmission structures. 3. Prepare storm water pollution prevention plans. 4. Provide GIS mapping services. 5. Prepare 3D renderings of the project design. 6. Perform Phase I or Phase II environmental site assessments, NEPA documentation, USACE 404 and 208/408 permits, threatened and endangered species, THC compliance. T Such other engineering or environmental services as requested by DME to support execution of the project. E. Construction Phase Assistance (Resident Representation) 1. The Scope of Services for Full Time Resident Representation services includes (1) one full time inspector (based on 40 hours per week) for construction duration up to 36 months. 2. FNI will have a Resident Project Representative on the Site. The duties, responsibilities and the limitations of authority of the Resident Project Representative, and designated assistants, are as follows: a) Resident Project Representative is FNI's agent at the site, will act as directed by and under the supervision of FNI, and will confer with FNI regarding Resident Project Representative's actions. Resident Project Representative's dealings in matters pertaining to the on -site Work shall in general be with FNI and contractor, keeping Owner advised as necessary. Resident Project Representative's dealings with subcontractors shall only be through or with full knowledge and approval of contractor. Resident Project Representative shall generally communicate with Owner with the knowledge of and under the direction of FNI. 3. Duties and Responsibilities of Resident Project Representative: a) Schedules: Review the progress schedule, schedule of shop drawing submittals and schedules of values prepared by contractor and consult with FNI concerning acceptability. b) Conferences and Meetings: Attend meetings with contractor, such as preconstruction conferences, progress meetings, job conferences and other project - related meetings, and prepare and circulate copies of minutes thereof. c) Liaison: (i) Serve as FNI's liaison with contractor, working principally through contractor's superintendent and assist in understanding the intent of Contract Documents; and assist FNI in serving as Owner's liaison with FNI _. Owner Exhibit A -6 contractor when contractor's operations affect Owner's on -site operations. (ii) Assist in obtaining from Owner additional details or information, when required for proper execution of the Work. d) Shop Drawings and Samples: (i) Receive samples which are furnished at the site by contractor, and notify FNI of availability of samples for examination. (ii) Advise FNI and contractor of the commencement of any Work requiring a shop drawing or sample if the submittal has not been approved by FNI. e) Review of Work, Rejection of Defective Work, Inspections and Tests: (i) Conduct on -site observations of the Work in progress to determine if the Work is in general proceeding in accordance with the Contract Documents. (ii) Report to FNI whenever Resident Project Representative believes that any Work will not produce a completed Project that conforms generally to the Contract Documents or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made; and advise FNI of Work the Resident Project Representative believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. (iii) Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections and report to FNI. f) Interpretation of Contract Documents: Report to FNI when clarifications and interpretations of the Contract Documents are needed and transmit to contractor clarifications and interpretations as issued by FNI. g) Request for Revisions: Consider and evaluate contractor's suggestions for revisions to Drawings or Specifications and report with Resident Project Representative's recommendations to FNI. Transmit to contractor in writing decisions as issued by FNI. h) Records: (i) Maintain at the job site files (electronic or hard copy) for correspondence, reports of job conferences, Shop Drawings and Samples, reproductions of original Contract Documents, including all Work Change Directives, Addenda, Change Orders, Field Orders, Written Amendments, additional Drawings issued subsequent to the execution of the Contract, FNI's clarifications and interpretations of the Contract Documents, progress reports, submittals and correspondence received from and delivered to contractor and other Project related documents. i) Reports: FNI Owner Exhibit A -7 (i) Furnish to FNI periodic reports as required of progress of the work and of contractor's compliance with the progress schedule and schedule of Shop Drawings and Sample submittals. (ii) Consult with FNI in advance of scheduled major tests, inspections or start of important phases of the Work. (iii) Draft proposed Written Amendments, Change Orders and Work Change Directives, obtaining backup material from contractor and recommend to FNI Written Amendments, Change Orders, Work Change Directives, and Field Orders. (iv) Report immediately to FNI and Owner the occurrence of any accident. j) Payment Requests: Review Applications for Payment with contractor for compliance with the established procedure for their submission and forward with recommendations to Owner, noting particularly the relationship of the payment requested to the schedule of values, Work completed and materials and equipment at the Site but not incorporated in the Work. k) Certificates, Maintenance and Operation Manuals: During the course of the Work, verify that certificates, maintenance and operation manuals and other data required to be assembled and furnished by contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have this material delivered to FNI for review and forwarding to Owner prior to final payment for the Work. 1) Completion: (i) Before FNI issues a Certificate of Substantial Completion, submit to contractor a list of observed items requiring completion or correction. (ii) Observe whether contractor has performed inspections required by laws or regulations, ordinances, codes or order applicable to the Work, including but not limited to those to be performed by public agencies having jurisdiction over the Work. (iii) Conduct a final inspection in the company of FNI, Owner and contractor and prepare a final list of items to be completed or corrected. (iv) Observe whether all items on final list have been completed or corrected and make recommendations to FNI concerning acceptance. 4. Limitations of Authority of Resident Project Representative: a) Shall not authorize any deviation from the Contract Documents or substitution of materials or equipment (including "or- equal" items), unless authorized by FNI. b) Shall not exceed limitations of FNI's authority as set forth in Agreement or the Contract Documents. c) Shall not undertake any of the responsibilities of contractor, subcontractor, suppliers, or contractor's superintendent. FNI Owner Exhibit A -8 d) Shall not advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or procedures of construction unless such advice or directions are specifically required by the Contract Documents. e) Shall not advise on, issue directions regarding or assume control over safety precautions and programs in connection with the Work or any activities or operations of Owner or contractor. fl Shall not accept shop drawing or sample submittals from anyone other than the contractor. g) Shall not participate in specialized field or laboratory tests or inspections conducted by others, except as specifically authorized by FNI. F, Right of Way /Property Acquisition Services The Scope of Services for ROW /Property Acquisition Services included in the Not to Exceed Maximum Fee Amount is based on the following: • 300 separate tracts to be acquired (fee simple or easements). • Condemnation services for 90 tracts (i.e. 30% condemnation rate). I. Public Involvement Services a) Participate in initial project definition meeting. b) Review proposed project maps and descriptions to assist in defining ROW related concerns. c) Prepare public notice requirements on behalf of DME. d) Attend public open house meeting(s) to discuss project and routes. e) Attend internal meetings with DME to discuss ROW considerations /alternatives fl Attend additional public meetings (if necessary) g) Contribute to Routing Analysis (impacts of alternative, estimated ROW cost for each alternative). h) Prepare public notice of selected /approved route. 2. Pre - Acquisition Services a) Prepare initial property owner contract list for use by DME in distribution of ROW agent introduction letters, if desired by DME. b) Research preliminary ownership and easement information. c) Work with surveyor in development of right of way maps and legal descriptions of needed property rights. d) Provide detailed right of way cost estimates on a parcel by parcel basis. FNI Owner Exhibit A -9 e) Assist in preparing and obtaining any Rights of Entry necessary for surveying, geotechnical investigations and environmental services. 3. Title Services a) Secure preliminary title commitment or preliminary title search, and 5 -year sales data from Title Company that will be providing title insurance. b) Review preliminary title commitment (Schedules A, B & C) or preliminary title search information for all properties. c) Secure title commitments and updates in accordance with insurance rules and requirements for parcel payment submissions for properties which will be acquired in fee simple and for ROW easements d) Secure title insurance for all parcels, insuring acceptable title in the name of the City of Denton. Cure all exceptions on Schedule C, when applicable. Written approval by the City of Denton will be required for any exceptions to coverage. e) Attend closings and provide closing services in conjunction with Title Company for all tracts. f) Record all original instruments immediately after closing at the respective County Clerk's Office. g) Research title and provide Condemnation Title Report to legal counsel for property rights that will be acquired through Eminent Domain. (See item 7 below) 4. Initial Appraisal a) Secure written permission from the owner to enter the property from which land is to be acquired. If Agent, after diligent effort, is unable to secure the necessary letter of permission from the property owner, a waiver must be obtained, in writing from the City of Denton. Maintain permission letters with appraisal reports. b) Prepare and conduct personal pre - appraisal contact with interest owner(s) for each parcel. c) Contact property owners or their designated representative to offer opportunity to accompany the appraiser on the appraiser's inspection of subject property. Maintain record of contact in file. d) Prepare draft appraisal report. "Draft" stamp to remain on appraisal until the city has reviewed and approved the appraisal and the initial offer is made. e) Finalize complete appraisal report for each parcel to be acquired utilizing a format approved by the City of Denton. These reports shall conform to the City of Denton policies and procedures along with the Uniform Standards of Professional Appraisal Practice. f) As necessary, prepare written notification to the City of Denton of any environmental concerns within the needed right of way to be acquired which could require remediation. g) All completed appraisals will be administratively reviewed and approved by the City of Denton. FNI Owner Exhibit A -10 h) As necessary, the appraiser will appear and or testify as an Expert Witness in eminent domain proceedings and be available for pre- hearing or pre -trial meetings as directed by the City of Denton. 5. Introductory Letter a) Prepare Right of Entry packets to include introductory letter, Landowner Bill of Rights, maps and paperwork to be executed. b) Mail merge introductory letters and labels for envelopes and file folders. The agents with prepare and stuff envelopes for out of town owners or owners who have indicated that they want to receive all of their initial information via certified mail, return receipt requested. c) The agent will initiate negotiator and contact logs and attend landowner meetings for ROE documents. The agent will research additional contact information for nonresponsive landowners. d) Introductory letter will be pre- approved by DME. e) Introductory letter will be sent either certified mail or Federal Express. 6. Survey Permission a) Secure permission to conduct a civil survey on all parcels impacted by the project. b) Secure permission to conduct geotechnical survey on specific parcels identified by DME. c) Survey permission will be secured from in written form on a format acceptable and pre- approved by DME. d) Should survey permission be denied, provider will submit necessary information to DME necessary to support legal efforts to gain legal access. 7. Negotiation Services a) Analyze appraisal reports and confirm approved value prior to making offer for each parcel. b) Analyze preliminary title report to determine potential title problems and propose methods to cure title deficiencies. c) Prepare the initial offer letter and any other documents required or requested by the City of Denton in a form acceptable to the City of Denton. d) Contact each property owner or owner's designated representative and present the written offer in person where practical. When owners do not wish to have offers delivered in person, they will be mailed via certified mail with return receipt for documentation of delivery /receipt. Maintain follow -up contacts and secure the necessary instruments upon acceptance of the offer for the closing. e) Provide a copy of the appraisal report for the subject property exclusively to the property owner or authorized representative at the time of the offer. Maintain original signed Receipt of Appraisal. FNI Owner Exhibit A -11 fl Respond to property owner inquiries verbally and /or in writing within two business days. g) Prepare a separate negotiator contact report for each parcel file for each contact. h) Maintain parcel files of original documentation related to the purchase of the real property or property interests /acquisition of the Easement for Right of Way. i) Present counteroffers in a form as directed by the City of Denton. Transmit any written counteroffer from property owners including supporting documentation, and Agent's recommendation with regard to the counteroffer. j) Prepare final offer letter as necessary. k) Appear and provide Expert Witness testimony when requested. 8. Condemnation Support a) Upon receipt of a copy of the final offer, research and produce an updated "Condemnation Limited Title Report" (search parameters set by City of Denton and /or outside legal counsel). b) Prepare a condemnation package as directed by the City of Denton and deliver the package to the City of Denton's designee or legal counsel. c) Upon notification from the City of Denton request the update of appraisal. 9. Project Administration a) Maintain current status reports of all parcel and project activities and provide monthly or as requested to the City of Denton. b) Participate in project review meetings as requested. c) Provide copies of all incoming and outgoing correspondence as generated if requested. d) Maintain copies of all correspondence and contacts with property owners. e) Update database with current status information and documentation. G. ROW /Property Acquisition Support for Relocations (As Requested by City of Denton) 1. The Scope of Services for ROW /Property Acquisition Support for Relocations included in the Not to Exceed Maximum Fee Amount is a maximum of four (4) relocations. 2, Notify all property owners and potential displacees of eligibility for relocation assistance and provide them with a Relocation Assistance Brochure at time of initial contact. If possible, advise displacee of preliminary relocation benefits at this time. 3. Contact and provide relocation assistance to property owners and tenants affected by acquisition of right of way. 4. For residential relocations; locate, evaluate, and maintain files on comparable available housing, 1 "Nl Owner Exhibit A -12 5. Calculate replacement housing supplement benefits. 6. Compute and submit request for relocation housing /rental supplement to the City of Denton along with supporting documentation. 7. Provide 90 -day notice to vacate simultaneously with the delivery of the relocation benefits package. 8. Sixty days later or upon acquisition of the parcel, whichever occurs later, issue a 30 day letter. 9. Notify the City of Denton immediately if displacee does not move after 30 -day notice expires. 10. Perform a decent, safe, and sanitary inspection of the replacement housing in accordance with the City of Denton. 11. Prepare moving plan with appropriate photos and sketches along with inventory of personal property to be moved for non - residential moves. 12. Request moving estimates from moving companies as needed. 13. Coordinate moves with displaced homeowners, business owners, and tenants and with moving companies in accordance with the City of Denton procedures. 14. Maintain relocation contact logs. 15. Attend closings on replacement property if requested by any party involved, and assure supplemental payment is properly distributed. 16. Process and compute increased interest payments as required. 17. Relocation agent shall be available for any appeals or hearings. 18. Prepare all relocation payment claim submissions for all displacees on parcel. 19. Deliver payments in accordance with the City of Denton guidelines. H. Additional ROW/Property Acquisition Support for Condemnations (as Requested by DME) It is anticipated that services described in this section will be provided by others, but can be provided by FNI if requested by DME. 1. Pre - Hearing Support a) Upon receipt of condemnation packet documents prepared by Counsel for the City of Denton, Agent will file the original petition with the County Court at Law or other appropriate Court for a cause number to be assigned. b) File the Lis Pendens including the cause number with the County Clerk's Office. FNI� Owner Exhibit A -13 c) Upon assignment of a court, file the Order Appointing Commissioners with the judge retaining a copy of the Order for the files. d) Following appointment of Commissioners by the judge, secure the following documents: Oath of Commissioners signed by the Commissioners, Order Setting Hearing, and 2 copies of the Notice of Hearing signed by the Commissioners. e) File all originals with the court and send copies marked "copy" to Counsel for the City of Denton. f) Send a copy of the petition to the Title Company so that they can assure all required parties were joined and that no changes in title have occurred. g) Set the Commissioners Hearing after the updated appraisal has been submitted, if there is no change in value. If there is an increase in value, upon approval by City of Denton make a revised final offer and submit a copy of the revised final offer letter. h) Reserve a room for the hearing. i) Coordinate the hearing date with Counsel for the City of Denton, the Appraiser, the Engineering witness, the three Special Commissioners, the court reporter and any other parties designated by the City of Denton. j) Coordinate a pre- hearing conference if required by Counsel for the City of Denton. k) After the hearing is set, serve Notices of Hearing to the indicated parties at least 11 days prior to the Commissioner's hearing. If it is necessary to join the Federal Government, be advised that they must be served not later than 60 days prior to the date of the hearing. 1) Once the notices have been served, file the original notices with the court and send copies stamped "copy" to Counsel for the City of Denton. m) Send a reminder letter to all parties. 2. Post - Hearing Support (As Requested by City of Denton) a) Obtain the signatures of Commissioners and file with the court for the judge's signatures within two days the Hearing. b) Obtain and distribute to Counsel for the City of Denton certified copies of the award. C) File payment of the award in the registry of the court. File a Notice of Deposit with the court and send certified copies to each defendant notifying them of the date of the deposit. The Date of Deposit is the Date of Take. d) Take photographs of the interest to be acquired on the day of deposit. e) Send written notices of the date of deposit to all interested parties. f) Appear as Expert Witness as requested. FNI Owner Exhibit A -14 ARTICLE II ADDITIONAL SERVICES: Additional Services to be performed by FNI, if specifically authorized in writing by Owner, which are not included in the above - described Basic Services, are described as follows: Preparing data and reports for assistance to Owner in preparation for hearings before regulatory agencies, courts, arbitration panels or any mediator, giving testimony, personally or by deposition, and preparations therefore before any regulatory agency, court, arbitration panel or mediator unless such litigation, mediation, arbitration, dispute review boards, or other legal and /or administrative proceedings or hearings are caused by actions or negligence of FNI or one of its subconsultants. Assisting Owner in preparing for, or appearing at litigation, mediation, arbitration, dispute review boards, or other legal and /or administrative proceedings in the defense or prosecution of claims disputes with contractor(s) unless such litigation, mediation, arbitration, dispute review boards, or other legal and /or administrative proceedings in the defense or prosecution of claims disputes with contractor(s) are caused by actions or negligence of FNI or one of its subconsultants. K. Assisting Owner in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this AGREEMENT unless such litigation, mediation, arbitration, dispute review boards, or other legal and /or administrative proceedings in the defense or prosecution of claims disputes with contractor(s) are caused by actions or negligence of FNI or one of its subconsultants. Such services, if any, shall be furnished by FNI on a fee basis negotiated by the respective parties outside of and in addition to this AGREEMENT. ARTICLE III TIME OF COMPLETION: The term of this AGREEMENT shall be three (3) years from the date of execution and may be extended by mutual agreement of OWNER and FNI. ARTICLE IV RESPONSIBILITIES OF OWNER: Owner shall perform the following in a timely manner so as not to delay the services of FNI: A, Designate in writing a person to act as Owner's representative with respect to the services to be rendered under this AGREEMENT. Such person shall have contract authority to transmit instructions, receive information, interpret and define Owner's policies and decisions with respect to FNI's services for the Project. B. Provide all criteria and full information as to Owner's requirements for the Project, including project objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which Owner will require to be included in the plan. FNI..)..................- Owner Exhibit A -15 C. Assist FNI by placing at FNI's disposal all available information pertinent to the Project including previous reports, GIS mapping and data, and any other data relative to completion of the Project. D. Examine all studies, reports, sketches, drawings, specifications, proposals and other documents presented by FNI, obtain advice of other consultants as Owner deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of FNI. E. Furnish approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. F. Attend and take leadership role in project progress meetings and other project related meetings and attend and moderate the public meetings. G. Give notice to FNI whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of FNI's services, or any defect or nonconformance of the work of any contractor. H. Contact other departments within the City of Denton and coordinate with them to obtain record drawings of other utilities, buildings, or infrastructure as needed. I. Furnish, or direct FNI to provide, Additional Services as stipulated in Exhibit A, Article 11 of this AGREEMENT or other services as required. J. Bear all costs incident to compliance with the requirements of this Article IV. ARTICLE wV DESIGNATED REPRESENTATIVES: FNI and Owner designate the following representatives: Owner's Designated Representative — Owner's Accounting Representative — Copy To: David W. Wilson 1659 Spencer Road Denton, TX 76205 940 - 349 -8459 Fax: 940 - 349 -7334 email: david.wilson @cityofdenton.com Name John Moore Address 1701 C Spencer Rd. Denton, Texas Denton, TX 76205 Phone: 940- 349 -7544 Fax: 940- 380 -0403 Email: john.moore @cityofdenton.com Name Accounts Payable Address 215 E. McKinney St Denton, TX 76201 Phone: Fax: 940- 349 -7742 Email: 940- 349 -7789 Exhibit A -16 accountspayable @cityofdenton.com FNI Owner FNI's Project Manager - Aaron Fricke, P.E. 4055 International Plaza, Suite 200 Fort Worth, Texas 76109 Phone: 817-735-7411 Fax: 817-735-7491 Email: apf @,freese.com FNI's Accounting Representative - Jana Collier 4055 International Plaza, Suite 200 Fort Worth, Texas 76109 Phone: 817-735-7354 Fax: 817-735-7491 Email: jvc(u�freese.com FN I ... Owner Exhibit A -17 ATTACHMENT CO COMPENSATION Compensation to FNI for Basic Services described in Article I of Attachment A shall not exceed Twelve Million One Hundred Fifty Thousand Dollars ($12,150,000.00) as summarized in Table 1. Compensation for Engineering Services shall be computed based on the Schedule of Charges in Table 2. Compensation for ROW /Land Acquisition Services shall be computed based on the Schedule of Charges in Tables 3a and 3b. Additional Services as described in Article II of Attachment A shall be computed based on the following Schedule of Charges in Table 2. TABLE 1 SUMMARY OF PROJECT COSTS Estimated Maximum Description Amount Professional Services Program Management Assistance $485,900 Project Management Assistance $2,964,900 Permitting Assistance $572,600 General Engineering Services Support as Needed $948,800 Construction Phase Assistance /Inspection $1,135,200 Subtotal Engineering Services $6,107,400 ROW /Land Acquisition Services Subconsultant ROW /Land Agent Costs $5,754,600 Administration of Subconsultants @ 5% $288,000 Subtotal ROW /Land Acquisition Services $6,042,600 Total Not -to- Exceed Project Costs $12,150,000 FNI CO -1 OWNER ATTACHMENT CO TABLE 2 PROFESSIONAL SERVICES SCHEDULE OF CHARGES Schedule of Charges Position Rate Professional - 1 99 Professional - 2 120 Professional -3 135 Professional -4 156 Professional - 5 182 Professional - 6 208 Construction Manager - 1 79 Construction Manager - 2 103 Construction Manager - 3 121 Construction Manager - 4 151 CAD Technician /Designer - 1 84 CAD Technician /Designer - 2 109 CAD Technician /Designer - 3 134 Corporate Project Support - 1 80 Corporate Project Support - 2 97 Corporate Project Support - 3 129 Intern/ Coop 49 Rates for In -House Services Technology Charge Bulk Printing and Reproduction $8.50 per hour Black and White $0.10 per copy Color $0.50 per copy Travel Plot - Bond $2.50 per plot Standard IRS Rates Plot - Color $5.75 per plot Plot - Other $5.00 per plot Binding $5.75 per book OTHER DIRECT EXPENSES: Other direct expenses are reimbursed at actual cost times a multiplier of 1.10. They include outside printing and reproduction expense, communication expense, travel, transportation and subsistence away from the FNI office and other miscellaneous expenses directly related to the work, including costs of laboratory analysis, test, and other work required to be done by independent persons other than staff members. For Resident Representative services performed by non -FNI employees and CAD services performed In -house by non -FNI employees where FNI provides workspace and equipment to perform such services, these services will be billed at cost times a multiplier of 2.0. This markup approximates the cost to FNI if an FNI employee was performing the same or similar services. These rates will be adjusted annually. 1- 022013 FNI� CO -2 OWNER TABLE 3a Right of Way /Land Acquisition Services Schedule of Charges Improvement Type Substation Estimated Quantities Resident Comm Vacant Acquistion Estimated% of Improvement Type 60% 20 %II 20% Estimated # of Tracts based on 300 Total 170 57 56 17 Estimated # of Condemnations based on 30% Condemnation Rate 5117 16 5 Relocations 2 2 Appraisal Basic Services Unit Costs Initial appraisal services $4,500 $6,500 $3,200 $3,200, Title Services Unit Costs Title Services $600 $600 $6001 S600 ROW /Land Agent Basic Services Unit Costs ROW/Land Agent Basic Services Unit Costs $11,80() $11,800 511,800 $15,500 Condemnation Support Unit Costs Appraisal Update (50% of original fee) $2,250$3,250 $1,600 $1,6001 Appraisal Testimony /Support $3,000 $4,000 $3,000 $3,000 ROW Agent support $1,000 $1,000 $1,000 $1,000 Subtotal $6,250 $8,250 $5,600 $5,600 Relocation Services Unit Costs Relocation services $6,000 $7,000 NA NA Estimated ROW /Land Acquisition Costs Appraisal Basic Services $765,000 wwwww� $370,500 $179,200 ..ww. $54,400 Title Basic Services $102,000 $34,200 $33,600 $10,200 ROW /Land Agent Basic Services $2,006,000 $672,600 $660,800 $263,500 Condemnation Support $318,750 $140,250 $89,600 $28,000 Relocation Services $12,000 $14,000 NA NA Total Estimated ROW /Land Acquisition Costs $1,369,100 $180,000 $3,602,900 $576,600 $26,000 $5,754,600 CO -3 0W N F R ATTACHMENT CO TABLE 3b ROW /Land Acquisition Services Milestone Payment Schedule Improvement Type Substation Resident Comm Vacant Acquistion Initial appraisal services $4,500 $6,500 $3,200 $3,200 50% of fee upon delivery of draft report $2,250 $3,250 $1,600 $1,600 50% of fee upon delivery of final report $2,250 $3,250 $1,600, $1,600 Title Services $600 $600 $600 $600 Title commitment issued $300 $300 $300, Closing $300 $300 $300' $3001 ROW /Land Agent Basic Services $11,800 $11,800 $11,800'' $15,500 Route development /public involvement support $2,300 $2,300 $2,300 $3,500 Prepare /deliver title request to Title Company $300 $300 $300 $300 Deliver introductory letter $700 $700 $700 $700 Secure civil /geotech survey permission or delivery of info needed to support legal $700 $700 $700 $700 Secure title commitment $400 $400 $400 $400 Issuance of title policy or approved alternative $400 $400 $400 $400 Presentation of initial offer letter $1,800 $1,800 $1,800 $2,600 Submission of payment package or issuance of final offer letter $700 $700 $700 $700 Presentation of final offerw /City approval or acceptable payment submission with cleartitle (or proof it will be clear by closing $2,500 $2,500 $2,500 $4,200 Completed closing or delivery of condemnation package $2,000 $2,0001 $2,000 $2,000''. Condemnation Support ......... Appraisal Support $5,250 $7,250 $4,600 $4,600 Appraisal Update (50% of original fee) $2,250 $3,250 $1,600 $1,600 Appraisal Staff prep and testimony (billed hourly) $3,000 $4,000 $3,000 $3,000 Director - $330/h r Assoc Director - $275/hr Sr, Analyst - $220 /hr Analyst - $137/hr Adminstrative - $73 /hr ROW Agent support ROW Agent support as needed (billed hourly) $1,000 $1,000 $1,000 $1,000 Partner- $100 /hr Agent - $75 /hr ........ Relocations Support $6,000 $7,000 NA NA Submittal of moving plan /proof of providing relocation benefits $2,000 $2,500 Submittal of memo to DME reporting actual date Displacee vacated parcel $2,000 $2,500 Submittal of completed file to City with documents filed by date of activity $2,000 52,000 CO -4 OWNER CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1. ARCHITECT OR ENGINEER'S RESPONSIBILITIES 1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement") and proposal (the "Proposal") to which these General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services"). 2.1 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those described in Sections 2.2 through 2.6 of these General Conditions and include without limitation normal structural, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accurate set of Construction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement, 2.2 SCHEMATIC DESIGN PHASE 2.3 DESIGN DEVELOPMENT PHASE "C1140W 2.3,1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or FEWER ,-Vv V -I vim WN"VINNIAX iop vyown... IlAw"I i# ► be sufficient and adequate to fulfill the purposes of the Project. !1111 ill 11 1 1111111 11 1, Fill III ixi iiiiiiiii 111 1111111 111! I ill I Jill 11111 iiiiiii 11111111 2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail requirements for the construction of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. 2.4.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the Conditions of the contract, and the form of Agreement between the Owner and contractor. payment m the amount certified. However, the issuance ofmCertificate for Payment shall not be^representation that the Design Professional has (1) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how m for what purpose the Contractor has used money previously paid on account octhe Contract Sum. 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not vunmnnto the Contract Documents, Whenever the Design Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether vr not such Work i,fabricated, installed o,completed. However, neither this authority uf the Design Professional nor o decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Design Professional to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the work. 2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, pmuum Data and Samples for the norpumo of (1) umunnininu umnnnu^^e with ovrxuuuiu |awm, stmuuu, ordinances and uuueo� and (2) drteoniumo whether ^r not the work, when completed, will buim compliance with the requirements of the Contract Documents. The Design Professional shall act with such reasonable promptness to cause no delay in the work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to perrnit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of which remain the responsibility ur the Contractor w the extent required orthe Contract Documents. The Design Professional's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Design Professional, of construction means, methods, techniques, sequences urprocedures. The Design Professional's approval of a specific item shall not indicate approval of an assembly of which the item is uvompvnunt. When professional certification of performance characteristics vf materials, systems orequipment is required yy the Contract Documents, the Design Professional shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required y' the Contract oouumomo. 2.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary ur the Design Professional as provided m Subsections a. 1./ and 3.s.y. for the Owner's approval and execution maccordance with the Contract Documents, and may authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension vf the Contract Time which are not inconsistent with the intent ur the Contract Documents. 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates mr Substantial Completion and Final Completion, and if requested bv the Owner shall issue Certificates nf Substantial and Final Completion. The Design Professional will receive and review written guarantees and related documents required hv the Contract for Construction whn assembled br the Contractor and shall issue u final certificate for Payment upon compliance with the requirements mr the Contract oouomm`m. 2.6.15 The oeoio* Professional shall interpret and provide recommendations on matters concerning nenfonnxnm,uf the Owner and Contractor under the requirements ucthe Contract Documents nn written request o,either the Owner o,Contractor. The Design Professional's response w such requests shall be made with reasonable promptness and within any time limits agreed upon. zxizo Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall huin writing mio the form oydrawings. When making such interpretations and initial decisions, the Design Professional shall endeavor msecure faithful performance by both Owner and Contractor, undanonnotbexub|emrnmu|mmiomrpretminnsordvnixiooxuo rendered in good faith in accordance with all the provisions of this Agreement and in the absence of negligence. 2.6.17 The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contrvmure|udnmto the execution o, progress mr the work as provided inthe Contract Documents. 2.6.18 The Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreement or diminish any of the Design Professional's obligations thereunder. z.o.m The Design Professional shall provide the Owner with four sets o/ reproducible prints showing all significant changes to the Con- struction Documents during the Construction Phase. 3.2 PROJECT BEYOND BASIC SERVICES 3.2.1 o more extensive representation at the site than i, described io Subsection ua.sb required, UnDesignrmfeoskmal shall provide one or more Project Representatives m assist in carrying out such additional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be com- pensated therefor as agreed u'mvo°mvrvudoemmormfeosionuL 3.a CONTINGENT ADDITIONAL SaoVIcmo 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: |. inconsistent with approvals or instructions previously given yy the Owner, including revisions made necessary ur adjustments in the Owner's program or Project budget; 7. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or s. due m changes required asv result of the Owner's failure to render decision inu timely manner, El FIT 4.1 The Owner shall consult with the Design Professional regarding requirements for the Project, including (1) the Owner's objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more specifically described in Subsection 2.2.1. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 4.3 If requested by the Design Professional, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in the orderly and sequential progress of the Design Professional's services. 4.5 Where applicable, the Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and infomnation concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a project benchmark. 4.6 Where applicable, the Owner shall furnish the services of geotechnical engineers when such services are requested by the Design Professional. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating sub -soil conditions, with reports and appropriate professional recommendations. 4.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Design Professional and are not retained by the Design Professional as part of its Basic Services or Additional Services. 4.7 When not a part of the Additional Services, the Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests of hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall famish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be furnished at the Owner's ex- pense, and the Design Professional shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of the Design Professional. 4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Professional's consultants and shall submit such to the Owner for review and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would require knowledge or services beyond the scope of the Agreement. MWOMMUM1541 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional. 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the work during construction. 5.1.3 Construction Cost does not include the compensation of the Design Professional and Design Professional's consultants, the costs of the land, rights-of-way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Design Professional represent the Design Professional's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Design Professional. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by the furnishing, proposal or establishment of a Project budget unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjust- ments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. 5.2.3 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments of the Design Professional's service and shall become the property of the Owner upon termination or completion of the Agreement. The Design Professional is entitled to retain copies of all such documents. Such documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in another project or for other purposes than are specified in the Agreement, the Design Professional is released from any and all liability relating to their use in that project 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Design Professional's reserved rights. 0 I FR 9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all xuumtx claims, demands, damages, |osxes, and vxpms^,, including, but not limited to court costs and reasonable attorney fees mm'md yy the Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, lti from the negligent acts o, omissions of the Design Professional or its officers, shareholders, agents, or employees in the performance of the Agreement. 9.2 Nothing herein shall be construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved, ARTICLE mINSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with xn insurance company licensed m,authorized todv business in the State of Texas by the State Insurance Commission a,any successor agency that has v rating with Best Rate Carriers orm least m`^-o,above: 10.1 Comprehensive General Liability |ouunm^e with bodily injury limits of not less than $1.800.000 for each occurrence and not |eua than $2,000,0e0 in the aggregate, and with property damage limits of not less than $/oo,0oo for each occurrence mmnmlemthun$2oo,0oo in the aggregate. 10.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. m.x Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than %mn.000 for each accident including occupational disease. 1111EIMmM41 |us The Design Professional shall furnish insurance certificates insurance policies to the Owner evidencing insurance m compliance with this md,|e |o m the time of the execution of the Agreement. The General uuuxkv and Automobile uuui|ky inounmox policies shall name the Owner ason additional insured, the Workers' Compensation policy shall contain v waiver o/ subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to Owner and Design Professional. m such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements of this Article 10. u.z The Agreement shall be governed yythe laws of the State uf Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County, Texas. 11.2 The Owner and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect m all covenants uf this Agreement. The Design Professional shall not assign its interests in the Agreement without the written consent vr the Owner. 11.3 The tenn^sreom^nt as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section aofthe Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument signed by both 0nme, and ovoiun Professional. When interpreting the Agreement the ,xvmmo Agreement, Pmrumal. these General Conditions and the other attachments referenced in Section sof the Agreement shall m the extent that iu reasonably possible bv read aoas to harmonize the provisions. However, should the provisions ur these documents beiu conflict xuthat they can not kv reasonably harmonized, such documents shall xe given priority inthe following order: I . The executed Agreement 2. Attachments referenced m Section »nrthe Agreement other than the Proposal 3. These General Provisions 0MN'Taw,ml 9 DATE (MM /DDIYYYY) y.-. CERTIFICATE OF LIABILITY INSURANCE 0 9/17/2 013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the Certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsenlent(s), PRODUCER 1- 703 - 827 -2277 ,.CONTACT Ames & Gough . 4 PHONE a 703-827-2277 'AMP NoI 703-827-2279 Greensboro ...IL ,��, n, ,...,., .... .. ,.. Mx.. ....... _ MA tm At %CjCdCS admin@ameogough.com Suite McLean98VA 22102Drive INSURER(S) COVERAGE NAIC # AFFORDING INSURER TRAVELERS IND CO OF AMER 25666 INSURED INSURER B: CHARTER OAK FIRE INS CO 25615 Freese and Nichols, Inc. INSURER C: TRAVELERS IND CO 25658 4055 International Plaza INSURER D! TRAVELERS PROP CAS CO OF AMER 25674 Suite 200 INSURER CONTINENTAL CAS CO 20443 Fort Worth, TX 76109 INSURERF COVERAGES CERTIFICATE NUMBER: 35737587 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ' I ADD DL SUaR OF INSURANCE 7 R n U D YI � LIMITS � y MID_ YTYPE J yy l A GENERAL LIABILITY X X PACP3C749897 '.. 10/23/1: 10/23/13, EACH OCCURRENCE $ 1,000,000 X 1, 000 0 COMMERCIAL GENERAL LIABILITY ,00_, "G#,FIM SE S IL;IcarNiuu•r��ne,¢ro; ,$, 1 CLAIMS -MADE I X OCCUR ,q MED EXP (Any one person) $ 10,000 .. . .I PERSONAL &ADV INJURY $ 1, 000, 000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIESPER: PRODUCTS - COMP /OPAGG $ 2,000 000 _ X P (b, X ,...._ I POLICY LOC _ ___ B AUTOMOBILE LIABILITY X X 81011,"79Tt5f Tom/ 3 , 10 23 3 -COMBINED itdGtC LIMP da v 1 000, 000 .'Eq,n . X ANY AUTO BODILY INJURY (Per person) $ r ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ AUTOS AUTOS .. .. NON -OWNED X R ;,R0F,Fi3 ry9DAMAGE $ HIRED AUTOS AUTOS I$ C X UMBRELLA LIAB X OCCUR CUP4C453408 .. '.. 10/23/1 10/23/13 EACH OCCURRENCE $ 10.000,0,00 ..... .., X EXCESS LIAB CLAIMS -MADE AGGREGATE $ 10 000, 000 DIED RETENTION$10000 � D WORKERS COMPENSATION X UB3974T65A WCSTATU- -OTN- 10/23/1 10/23/13 X TnPYL�M�Tb AND EMPLOYERS' LIABILITY ANY PROPRIETOR /PARTNER/EXECUTIVE LEAC ACCIDENT $ 000 00 E,..,,, ._ _,H H ----------- 1 1, , ,,.,.,...00 �Y,I OFFICER /MEMBER EXCLUDED? NIA (Mandatory In NH) E.L. DISEASE EA EMPLOYEE' $ 1,, 000 000 - _ ,,,,,, ,e,.,_,,,,.,., ....,.... If es, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE POLICY LIMIT $ 1, 000, 000 E PROFESSIONAL LIABILITY AEH 00 821 -44 22 10/23/1. 10/23/13 Per Claim 5,000,000 Annual Aggregate 10,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS /VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) Capital Improvement Program The City and Denton Municipal Electric and their employees, officers, officials, agents and volunteers are included as additional insureds with respects to General and Auto Liability. Waiver of Subrogation applies to General, Auto and Workers Compensation as required by written contract and allowed by law. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Denton THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 215 East McKinney St. AUTHORIZED REPRESENTATIVE Denton, TX 76201 L USA ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD FreeseNichole 35737587 f 1. ,ql City of Denton Purchasing 901 -B Texas St. Denton, TX 76209 Phone: (940) 349-7100 Fax: (940) 349-7302 www.dentonr)urchasina,com Substitute W -9 Form The IRS requires all vendors to complete a W -9 Form. The Information on this form must be filled out, signed and submitted by a vendor representative. All information must be completed before a purchase order or payment will be Issued. Name as shown on your income tax return: FraPGA Ad Nirholc Inr. Tax IID/Soclal Security #: 75- 1531935 Under penalties of perjury, I certify that: 1. The number shown on this form Is my correct taxtaxpayer Identification number (or I am waiting for a number to be issued to me), and 2. 1 am not subject to backup withholding because (a) I am exempt from backup Wtholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. 1 am a U.S citizen or oftr°, U.S, person -for fededral tax purposes as defined at the bottom of this page *, Authorized Signatur:`%"�' '.1" Printed Name: �� ^/� p Mallinct Address: Company Name: Fraacr?�anrl Ntrhnl.cz Inr -„ Contact Name; Cindy House Address; 4055 International Plaza Suite 200 .r l •rr 1• �:• Chock, ap pro riate boar for federal tax classification (required): Individual/ ❑ Sole �[�( Corporation ❑ Partnership Proprietor Must designate C or S ❑ C Exempt s Pavee Email; CAH r I .0 ��. Qn? Website: www.freese.com Phone Number; Al 7-735-7api Fax Number; 817 -735 -7480 Limited Other ® Liability ❑ Please specify: Corporation Business Type; Reel Royalties (A-2) Estate Equipment E3 Rental /Lease (Al) E] Rentalll-ease (A -9) 1:1 Medical /Health Care (A -ti) Services Only (A- Merchandise- Merchandise & ❑, 7) ❑ Goods Only (A -7) ❑ Services (A -7) ❑ Legal Firm/Attorney (A -C) Consultant/Prof Proceeds from Real Estate 1_X F-1 Fees ( A -7 ) Purchases(S) , Type of Organization; N/A El Minority Owned El Female Owned [:1 Non Profit El Historically Underutilized Business *Definition of a U.S. Person -For Federal Tax purposes, you are considered a U.S. person if you are; (a) an individual who is a U.S. citizen or U.S. resident (b) a partnership, corporation, company, or association created or organized In the United States or under the laws of the United States (c) an estate (other than a foreign estate), or (d) a domestic trust (as defined In Regulations Section 301,7701 -7). COD Page 1 9/23/2011 Vendor Information Not Required for W -9 Form Remit Address (if different from above) Company Name: Freese and Nichols. Inc. Contact Name; Q nrly HOi i ^P Fort Worth- . ': 111 Email: CAH OFreese.com Phone Number: 817- 735 -7391 Fax Number: 817- 735 -74sn ACH Information - Voluntary ABA Routing #: 111( nof;14 Contact Name : Cindy House Bank Account# 974414357 Bank Name: JP Morgan Chase Bank, N.A. ACH Email: CAH(C7 Freese, com ACH Email: Phone Number: 817-Z35-7391 Fax Number: A17 -7351 -74sn I (we) authorize the City of Denton to deposit payments Into the checking account listed. The authority remains In effect until the City of Denton has received written notification from me of termination In time to allow reasonable opportunity to act on it, or until the City of Denton has sent me written notice of termination of the agreement. PM -* Vendor Signature' Print Name/Title _Gwelipp,,rez,, C .� p� er Date 09/20/2013 List Products and /or Services Interested in IBIddi99L___EnglriAPrlriri - n aL.�t Consultants For Internal Use Only ❑ New Vendor ❑ Vendor Change ❑ Refund Requesting Department: Department Representative (Printed Name) Purchasing Signature: Vendor Number NO COD Page 2 9/23/2011 . . . .......... . ..... . .................. ................. . CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doiniz business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session, OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person Date Received who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. . . .............. . Name of person who has a business relationship with local governmental entity, F2N/A ..... ... . . ............... Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7t" business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) . . . . ...... LfName of local government officer with whom filer has an employment or business relationship. N/A Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? F�� Yes No N/A B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? El Yes 1-1 No N/A C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? = Yes = No N/A D. Describe each affiliation or business relationship. N/A . ..... . . ...... . . ........... . . ..... ..... .. .......... ------ . . . ....... . ..................... ............... . . . . . .. . ................ ............. 4 ...... Z013 - -------------------- Signature of person doing business with the governmental entity Date .......................... Coi,�a,ei3O .nru..Aa R AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Engineering Services ACM: Jon Fortune Y SUBJECT Consider adoption of an ordinance abandoning and vacating an Electric Utility Easement (the "Easement "), granted by Denton County National Bank to the City of Denton, Texas, pursuant to that certain Easement dated April 22, 1976, and recorded in Volume 783, Page 343, Real Property Records, Denton County, Texas said Easement encumbering lands located in the Wm. Neil Survey, Abstract No. 970, Denton County, Texas and generally located at 235 West Hickory Street, and declaring an effective date. BACKGROUND RLB Investments LLC is the owner of a tract of land at 235 West Hickory Street slated for the development of an apartment complex. The owner has made a formal request for the City of Denton to abandon a 0.03 acre electric easement which traverses the property. The subject electric easement was granted in 1976, to house an electric service line, but the electric facilities were installed in an alternate location and the easement was never utilized. The abandonment request was reviewed by The Development Review Committee, and staff recommends the approval of the request. Staff performs an analysis on the request for easement abandonments as follows: • Is the easement tract requested for abandonment considered "excess easement "? • Does the easement tract that is requested for abandonment have a continued public use? • Is it in the best interest of the general public to abandon the government's rights in the subject abandonment tract? • Would the granting of this request establish a precedent for easement abandonment for future requests? Staff findings on this analysis are as follows: 1. The requested easement abandonment tract fits the criteria of "excess easement." Excess easement is defined as: Property acquired or used by the City for easement subsequently declared excess (not needed for any public project, the continuation of operation and maintenance of public facilities, and /or no foreseeable utility application in the future). 2. The easement abandonment tract, is not slated for utilization of any future public electric use. 3. The easement abandonment is in the public interest because the area for the subject abandonment is no longer needed by the public and /or has not been utilized for the public. 4. This abandonment will not set precedent because the above three standards have been met. Agenda Information Sheet October 15, 2013 Page 2 OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. ESTIMATED SCHEDULE OF PROJECT Fall 2013 PRIOR ACTION/REVIEW (Council, Boards, Commissions) Development Review Committee Approval April 2013. The Public Utilities Board will be considering this item on October 14, 2013. Information on the vote will be provided prior to the Council meeting on October 15, 2013. FISCAL INFORMATION Not applicable. EXHIBITS 1. Location Map 2. Site Map 3 . Ordinance Respectfully submitted: P Paul Williamson Real Estate Manager Prepared by: P05 -e. e(A --ATNJ " Doreen E. Blackstone Right of Way Agent LOCATION MAP HICKORY APARTMENTS DENTON EASEMENT ABANDONMENT Q1P ----------- - - E A CEMENT ABANDONMENT AREA 1 N AMENDING PLAT LOT 1R, BLOCK 3 BAINES ADDITION PRINC APART OF A (CALLED) 3231 ACRE —CT AV 11VVPlfiflD IN A — TO SOUTH alk—Os -B-1 Df2ODY, I., B11—B, " VOLUNE 0.", .. 36OZ RfiAL --ll RECORDS 11 'BA- —11, TEXAS AND ALSO —1 NAT OF TOO — ADDITION, AN ADDITION TO TAR Off OF DENTOK AS SO— BY TBF NAP -- ATCO-FA IN 1OLOBB X III GOT A— AF NO I OF -Mr.1 .N,l. —.5 MU4 sAlegal \our documents \ordinances \13 \denton co nad bank ordinance.doc ORDINANCE NO. AN ORDINANCE ABANDONING AND VACATING AN ELECTRIC UTILITY EASEMENT (THE "EASEMENT "), GRANTED BY DENTON COUNTY NATIONAL BANK TO THE CITY OF DENTON, TEXAS, PURSUANT TO THAT CERTAIN EASEMENT, DATED APRIL 22, 1976, AND RECORDED IN VOLUME 783, PAGE 343, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, SAID EASEMENT ENCUMBERING LANDS LOCATED IN THE WM. NEIL SURVEY, ABSTRACT NO. 970, DENTON COUNTY, TEXAS, AND GENERALLY LOCATED AT 325 WEST HICKORY STREET; AND DECLARING AN EFFECTIVE DATE. WHEREAS, RLB Investments LLC, a Texas limited liability company ( "Owner "), has represented to the City of Denton that it is the underlying fee simple owner of lands encumbered by the Easement; WHEREAS, the Owner has requested the City of Denton to abandon the Easement; WHEREAS, staff has reviewed the requested abandonment by Owner of the Easement, as provided above, and has recommended approval of such abandonment; and WHEREAS, the City Council of the City of Denton, Texas has determined that it is in the public interest to abandon the Easement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations and findings contained in this ordinance are incorporated herein by reference the salve as if fully set forth in this Section 1. SECTION 2. The Easement is hereby permanently abandoned and, subject to the reservations set forth in this ordinance, all of the City's right, title and interest in the Easement, as abandoned herein, is hereby released to the Owner. A certified copy of this ordinance may be recorded in the Real Property Records of Denton County, Texas to evidence this abandonment and release. SECTION 3. Notwithstanding anything to the contrary contained in this ordinance, the City of Denton hereby retains and reserves any and all easements, rights of way and any other rights or interests, other than the Easement, whether acquired, obtained, owned or claimed by the City of Denton or public, by, through or under conveyance, dedication by plat or other express dedication, implied dedication, prescription, or by any other manner or means, in or to lands in which the Easement may cover, encumber, include, cross or overlap. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY mm APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY f Page 2 MARK A. BURROUGHS, MAYOR Coit�sei�,.0 .nru..A AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Engineering Services ACM: Jon Fortune SUBJECT Consider adoption of an ordinance abandoning and vacating a Temporary Drainage Easement (the "Easement "), granted by Allegiance Hillview, LP. to the City of Denton, Texas, pursuant to that certain Easement, dated August 20, 2007, and recorded as Instalment No. 2007 - 104852, Real Property Records, Denton County, Texas, said Easement encumbering lands located in the Buffalo Bayou, Brazos and Colorado Railroad Company Survey, Abstract No. 192, Denton County, Texas and generally located at the 2600 block of Scripture Street and declaring an effective date. BACKGROUND A tract of land at the 2600 block of Scripture Street was purchased in 2011 by 3100 I -35N., L.L.C. for the purpose of building a medical office building The owner has made a formal request for the City of Denton to abandon a 0.517 acre temporary drainage easement which traverses the property. The subject easement was granted by the previous owner in 2007 to facilitate offsite drainage for the Rayzor Ranch South Development. The current owner has granted a new drainage easement and the new storm pipe has been installed and accepted by the City. The abandonment request was reviewed by The Development Review Committee, and staff recommends the approval of the request. Staff performs an analysis on the request for easement abandonments as follows: • Is the easement tract requested for abandonment considered "excess easement "? • Does the easement tract that is requested for abandonment have a continued public use? • Is it in the best interest of the general public to abandon the government's rights in the subject abandonment tract? • Would the granting of this request establish a precedent for easement abandonment for future requests? Staff findings on this analysis are as follows: 1. The requested easement abandonment tract fits the criteria of "excess easement." Excess easement is defined as: Property acquired or used by the City for easement subsequently declared excess (not needed for any public project, the continuation of operation and maintenance of public facilities, and /or no foreseeable utility application in the future). Agenda Information Sheet October 15, 2013 Page 2 2. The easement abandonment tract, is not slated for utilization of any future public electric use. 3. The easement abandonment is in the public interest because the area for the subject abandonment is no longer needed by the public and /or has not been utilized for the public. 4. This abandonment will not set precedent because the above three standards have been met. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. ESTIMATED SCHEDULE OF PROJECT Fall 2013 PRIOR ACTION/REVIEW (Council, Boards, Commissions) Development Review Committee Approval April 2013. The Public Utilities Board will be considering this item on October 14, 2013. Information on the vote will be provided prior to the Council meeting on October 15, 2013. FISCAL INFORMATION Not applicable. EXHIBITS 1. Location Map 2. Site Map 3 . Ordinance Prepared by: Doreen E. Blackstone Right of Way Agent Respectfully submitted: POAX;— I d4 � " � Paul Williamson Real Estate Manager LOCATION MAP FE SC IPTU DENTO COMMU M ED CAL CEN ER 0 WEST OAK RAYZOW R"crl sours A. "low EASEMENT ABANDONMENT AREA CITY 1— RAYZOR RANCH SOUTH MEDICAL OFFICE BUILDING SITE MAP 'WMMWAY ■ s:Alegal \our documents\ ordinances \13 \allegiance hillview ordinance.doc ORDINANCE NO. AN ORDINANCE ABANDONING AND VACATING A TEMPORARY DRAINAGE EASEMENT (THE "EASEMENT "), GRANTED BY ALLEGIANCE HILLVIEW, LP. TO THE CITY OF DENTON, TEXAS, PURSUANT TO THAT CERTAIN EASEMENT, DATED AUGUST 20, 2007, AND RECORDED AS INSTRUMENT NO. 2007 - 104852, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, SAID EASEMENT ENCUMBERING LANDS LOCATED IN THE BUFFALO BAYOU, BRAZOS AND COLORADO RAILROAD COMPANY SURVEY, ABSTRACT NO. 192, DENTON COUNTY, TEXAS, AND GENERALLY LOCATED AT THE 2600 BLOCK OF SCRIPTURE STREET; AND DECLARING AN EFFECTIVE DATE. WHEREAS, 3100 I -35 N., L.L.C., a Texas limited liability company ( "Owner "), has represented to the City of Denton that it is the underlying fee simple owner of lands encumbered by the Easement; WHEREAS, the Owner has requested the City of Denton to abandon the Easement; WHEREAS, staff has reviewed the requested abandonment by Owner of the Easement, as provided above, and has recommended approval of such abandonment; and WHEREAS, the City Council of the City of Denton, Texas has determined that it is in the public interest to abandon the Easement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations and findings contained in this ordinance are incorporated herein by reference the same as if fully set forth in this Section 1. SECTION 2. The Easement is hereby permanently abandoned and, subject to the reservations set forth in this ordinance, all of the City's right, title and interest in the Easement, as abandoned herein, is hereby released to the Owner. A certified copy of this ordinance may be recorded in the Real Property Records of Denton County, Texas to evidence this abandonment and release. SECTION 3. Notwithstanding anything to the contrary contained in this ordinance, the City of Denton hereby retains and reserves any and all easements, rights of way and any other rights or interests, other than the Easement, whether acquired, obtained, owned or claimed by the City of Denton or public, by, through or under conveyance, dedication by plat or other express dedication, implied dedication, prescription, or by any other manner or means, in or to lands in which the Easement may cover, encumber, include, cross or overlap. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013 ATTEST: JENNIFER WALTERS, CITY SECRETARY ffim APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: MARK A. BURROUGHS, MAYOR Page 2 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Engineering Services ACM: Jon Fortune SUBJECT Consider adoption of an ordinance abandoning and vacating an Electric Utility Easement (the "Easement "), granted by Singing Oaks Apts. #1 to the City of Denton, Texas, pursuant to that certain easement, dated June 4, 1971, and recorded in Volume 624, Page 12, Real Properties Records, Denton County, Texas, said Easement encumbering lands located in the M. Yoachum Survey, Abstract No, 1442, Denton County, Texas, and generally located at 307 North Loop 288, and declaring an effective date. BACKGROUND Louis Wolfson, III, Michael D. Wohl, David O. Deutch and Mitchell M. Friedman, as Trustee of the Mitchell M. Friedman Living Trust are the owners of a tract of land at 307 North Loop 288. The owner has made a formal request for the City of Denton to abandon a 0.057 acre electric easement which traverses the property. The subject electric easement was granted in 1971 to house an electric service line. The current owner has demolished the building that was serviced by the easement. The electric service has been relocated in a new electric easement granted by the current owner. The abandonment request was reviewed by The Development Review Committee, and staff recommends the approval of the request. Staff performs an analysis on the request for easement abandonments as follows: • Is the easement tract requested for abandonment considered "excess easement "? • Does the easement tract that is requested for abandonment have a continued public use? • Is it in the best interest of the general public to abandon the government's rights in the subject abandonment tract? • Would the granting of this request establish a precedent for easement abandonment for future requests? Staff findings on this analysis are as follows: 1. The requested easement abandonment tract fits the criteria of "excess easement." Excess easement is defined as: Property acquired or used by the City for easement subsequently declared excess (not needed for any public project, the continuation of operation and maintenance of public facilities, and /or no foreseeable utility application in the future). 2. The easement abandonment tract, is not slated for utilization of any future public electric use. Agenda Information Sheet October 15, 2013 Page 2 3. The easement abandonment is in the public interest because the area for the subject abandonment is no longer needed by the public and /or has not been utilized for the public. 4. This abandonment will not set precedent because the above three standards have been met. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. ESTIMATED SCHEDULE OF PROJECT Fall 2013 PRIOR ACTION/REVIEW (Council, Boards, Commissions) Development Review Committee Approval Spring 2013. The Public Utilities Board will be considering this item on October 14, 2013. Information on the vote will be provided prior to the Council meeting on October 15, 2013. FISCAL INFORMATION Not applicable. EXHIBITS 1. Location Map 2. Site Map 3 . Ordinance Respectfully submitted: Prepared by: P7� -e. e( -ATb J " Paul Williamson Real Estate Manager Doreen E. Blackstone Right of Way Agent LOCATION MAP U �i FEMA m ��6 SINGING OAKS maq C EASEMENT ABANDONMENT YM m � rc TREE LEGEND GENERAL NOTES sximinm LEGEND cl Mo 7,-,-] iv E. ........ L TREE LEGEND sximinm LEGEND 11-010 Mo s:Alegal \our documents \ordinances \13 \singing oaks ordinanee.doc ORDINANCE NO. AN ORDINANCE ABANDONING AND VACATING AN ELECTRIC UTILITY EASEMENT (THE "EASEMENT "), GRANTED BY SINGING OAKS APTS. #1 TO THE CITY OF DENTON, TEXAS, PURSUANT TO THAT CERTAIN EASEMENT, DATED JUNE 4, 1971, AND RECORDED IN VOLUME 624, PAGE 12, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, SAID EASEMENT ENCUMBERING LANDS LOCATED IN THE M. YOACHUM SURVEY, ABSTRACT NO. 1442, DENTON COUNTY, TEXAS, AND GENERALLY LOCATED AT 307 NORTH LOOP 288; AND DECLARING AN EFFECTIVE DATE. WHEREAS, Singing Oaks, LLC, a Florida limited liability company ( "Owner "), has represented to the City of Denton that it is the underlying fee simple owner of lands encumbered by the Easement; WHEREAS, the Owner has requested the City of Denton to abandon the Easement; WHEREAS, staff has reviewed the requested abandonment by Owner of the Easement, as provided above, and has recommended approval of such abandonment; and WHEREAS, the City Council of the City of Denton, Texas has determined that it is in the public interest to abandon the Easement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations and findings contained in this ordinance are incorporated herein by reference the same as if fully set forth in this Section 1. SECTION 2. The Easement is hereby permanently abandoned and, subject to the reservations set forth in this ordinance, all of the City's right, title and interest in the Easement, as abandoned herein, is hereby released to the Owner. A certified copy of this ordinance may be recorded in the Real Property Records of Denton County, Texas to evidence this abandonment and release. SECTION 3. Notwithstanding anything to the contrary contained in this ordinance, the City of Denton hereby retains and reserves any and all easements, rights of way and any other rights or interests, other than the Easement, whether acquired, obtained, owned or claimed by the City of Denton or public, by, through or under conveyance, dedication by plat or other express dedication, implied dedication, prescription, or by any other manner or means, in or to lands in which the Easement may cover, encumber, include, cross or overlap. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY m. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Page 2 o i,. e i�..0 g n r u..Aa U AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Engineering Services ACM: Jon Fortune SUBJECT Consider adoption of an ordinance abandoning and vacating a Sanitary Sewer Easement (the "Easement "), granted by Henry S. Miller Company, Trustee to the City of Denton, Texas, pursuant to that certain easement, dated December 18, 1973, and recorded in the Volume 695, Page 350, Real Property Records, Denton County, Texas, said Easement encumbering lands located in the Gideon Walker Survey, Abstract No. 1330 and the Moreau Forrest Survey, Abstract No. 417, Denton County, Texas and generally located at the 5600 block of East McKinney Street, repealing City of Denton Ordinance No. 99 -226 related to the purported partial release of the easement, and declaring an effective date. BACKGROUND In 2004, the City of Denton was acquiring easements for the Lakeview Ranch Sanitary Sewer Project. Robert W. Callahan is the owner of a tract of land at the 5600 block of McKinney Street which was impacted by that project. There was an existing sewer line, which was subject to infiltration and was undersized, located within a sanitary sewer easement granted in 1973 on Mr. Callahan's property It was at that time that the City approached the property owner for additional easement to upgrade and replace the sewer system. In the fall of 2006, Mr. Callahan entered into an easement purchase agreement with the City, and a term of that agreement was that the City would take the necessary steps to abandon the old easement, upon completion of the constriction of the new sanitary sewer line. Mr. Callahan granted an alternative sanitary sewer and reuse line easement. In 2010, the City completed installation of the new sewer line and the old line was abandoned in place. Staff recommends the approval of the request. Staff performs an analysis on the request for easement abandonments as follows • Is the easement tract requested for abandonment considered "excess easement "? • Does the easement tract that is requested for abandonment have a continued public use? • Is it in the best interest of the general public to abandon the government's rights in the subject abandonment tract? Agenda Information Sheet October 15, 2013 Page 2 ■ Would the granting of this request establish a precedent for easement abandonment for future requests? Staff findings on this analysis are as follows: 1. The requested easement abandonment tract fits the criteria of "excess easement." Excess easement is defined as: Property acquired or used by the City for easement subsequently declared excess (not needed for any public project, the continuation of operation and maintenance of public facilities, and /or no foreseeable utility application in the future). 2. The easement abandonment tract, is not slated for utilization of any future public electric use. 3. The easement abandonment is in the public interest because the area for the subject abandonment is no longer needed by the public and /or has not been utilized for the public. 4. This abandonment will not set precedent because the above three standards have been met. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. ESTIMATED SCHEDULE OF PROJECT Project was completed in 2010. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Staff Initiated Capital Improvements Project. The Public Utilities Board will be considering this item on October 14, 2013. Information on the vote will be provided prior to the Council meeting on October 15, 2013. FISCAL INFORMATION Not applicable. EXHIBITS 1. Location Map 2. Site Map 3 . Ordinance Agenda Information Sheet October 15, 2013 Page 3 Respectfully submitted: plu_ 4)4L ww� Paul Williams Real Estate Manager Prepared by: P J . bUIrK-5Twe Doreen E. Blackstone Right of Way Agent LOCATION MAP kYA H00 YT N ST TES MI. H. P. -Ire x 0 Q 0 0 WHE Ropy' /_\ M GRtSS EASEMENT ABANDONMENT -Nm6m �3 CITY OF DENTON 30' INGRESS & EGRESS EASEMENT CC# 97-80019638 R.P.R.D.C.T. GATE LOCATION NORTH 57.894 ACRES ROBERT CALLAHAN VOL.4656, PG.1684 R.P.R.D.C.T. II II "SUBJECT" 25' PERMANENT EASEMENT- GATE LOCATION SOUTH CITY OF DENTON CC. 97-ROO19639 R.P.R.D.C.T. /Z EXISTING 16' SANITARY SEWER ESMT VOL.695 PG.350 (OLD EASEMENT) sAlegal \our documents \ordinances \i3 \calI all an ord 10- 10- 13.doc ORDINANCE NO. AN ORDINANCE ABANDONING AND VACATING A SANITARY SEWER EASEMENT (THE "EASEMENT "), GRANTED BY HENRY S. MILLER COMPANY, TRUSTEE TO THE CITY OF DENTON, TEXAS, PURSUANT TO THAT CERTAIN EASEMENT, DATED DECEMBER 18, 1973, AND RECORDED IN VOLUME 695, PAGE 350, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, SAID EASEMENT ENCUMBERING LANDS LOCATED IN THE GIDEON WALKER SURVEY, ABSTRACT NO. 1330 AND THE MOREAU FORREST SURVEY, ABSTRACT NO. 417, DENTON COUNTY, TEXAS, AND GENERALLY LOCATED AT THE 5600 BLOCK OF EAST MCKINNEY STREET; REPEALING CITY OF DENTON ORDINANCE NO. 99 -226 RELATED TO THE PURPORTED PARTIAL RELEASE OF THE EASEMENT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, Robert W. Callahan ( "Owner "), has represented to the City of Denton that he is the underlying fee simple owner of lands encumbered by the Easement; and WHEREAS, the Owner did grant, at the City of Denton's request, an alternative Sanitary Sewer and Reuse Line Easement encumbering Owner's lands, that easement conveyance instrument being recorded under Document Number 2007 - 21852, Real Property Records, Denton County, Texas; and WHEREAS, the Owner has requested the City of Denton to abandon the Easement; and WHEREAS, staff has reviewed the requested abandonment by Owner of the Easement, as provided above, and has recommended approval of such abandonment; and WHEREAS, on July 19, 1999, the City Council of the City of Denton, Texas did approve Ordinance 1999 -226, in respect to the Easement and its alleged encumbrance to phases of the McDonnell Highlands addition, an addition to the City of Denton, Texas; and WHEREAS, further study of area land title information reveals that the findings of Ordinance 1999 -226 were based on erroneous information provided by the petitioner as to the precise location of the easement tract; and WHEREAS, the City Council of the City of Denton, Texas has determined that it is in the public interest to abandon the Easement and repeal and supercede Ordinance No. 1999 -226; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations and findings contained in this ordinance are incorporated herein by reference the same as if fully set forth in this Section 1. SECTION 2. Ordinance 1999 -226 is hereby repealed and superceded by this ordinance. SECTION 3. The Easement is hereby permanently abandoned and, subject to the reservations set forth in this ordinance, all of the City's right, title and interest in the Easement, as abandoned herein, is hereby released to the Owner. A certified copy of this ordinance may be recorded in the Real Property Records of Denton County, Texas to evidence this abandonment and release. SECTION 4. Notwithstanding anything to the contrary contained in this ordinance, the City of Denton hereby retains and reserves any and all easements, rights of way and any other rights or interests, other than the Easement, whether acquired, obtained, owned or claimed by the City of Denton or public, by, through or under conveyance, dedication by plat or other express dedication, implied dedication, prescription, or by any other manner or means, in or to lands in which the Easement may cover, encumber, include, cross or overlap. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: e Page 2 MARK A. BURROUGHS, MAYOR AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Engineering Services ACM: Jon Fortune W SUBJECT Consider adoption of an ordinance abandoning and vacating (1) that certain Public Utility Easement, granted to the City of Denton, Texas by Rex C. Cauble, pursuant to that certain Easement dated December 5, 1972, and recorded in Volume 735, Page 515, Real Property Records, Denton County, Texas, insofar and only insofar as such easement covers and encumbers .443 acre tract of land, as described on Exhibit "B ", attached to the ordinance and made a part thereof (the "Exhibit B Abandonment Area "), and (2) that certain Public Utility Easement, granted to the City of Denton, Texas by Rex C. Cauble, pursuant to that certain easement, dated December 5, 1972, and recorded in Volume 735, Page 517, Real Property Records, Denton County, Texas, insofar and only insofar as such easement covers and encumbers .334 acre of land, as described in Exhibit "A ", attached to the ordinance and made a part thereof (the "Exhibit A Abandonment Area ") (the easements described above are collectively referred to herein as the "Easements) (the Exhibit A Abandonment Area and the Exhibit B Abandonment Area are collectively referred to herein as the "Abandonment Area "), said easements encumbering certain lands located in the A. White Survey, Abstract No. 1406 and N. Wade Survey, Abstract No. 1407, Denton County, Texas, as more particularly described in the Easements, and generally located approximately 1600' northwest of the intersection of North Elm Street and Loop 288, and declaring an effective date. BACKGROUND In 1972, two sanitary sewer easements were granted to provide service to the trick stops being constricted in the I -35 corridor. They traverse a tract of land approximately 1600' northwest of the intersection of North Elm Street and Loop 288. Within those easements, a sanitary sewer line was installed, and over the years, the aging line has been subject to infiltration, which caused several overflow events and required urgent replacement. In November 2012, a new public utility easement was granted by the owner. The City of Denton agreed to pursue the partial abandonment of the old sanitary sewer easements, within six months of the completion of the constriction of the new sewer line, as a condition of the granting of the easement. During the spring of 2013, the constriction of the new sanitary sewer line was completed, and the old sanitary sewer line was abandoned in place. Agenda Information Sheet October 15, 2013 Page 2 CATDENTON 35, Inc. is the current owner of the tract of land where the sanitary sewer easements are located and it is on their behalf that this partial abandonment request is being pursued to clear up the title on this property. Staff recommends the approval of the request. Staff performs an analysis on the request for easement abandonments as follows: • Are the easement tracts requested for abandonment considered "excess easement "? • Do the easement tracts that are requested for abandonment have a continued public use? • Is it in the best interest of the general public to abandon the government's rights in the subject abandonment tracts? • Would the granting of this request establish a precedent for easement abandonments for future requests? Staff findings on this analysis are as follows: 1. The requested easement abandonment tracts fit the criteria of "excess easement." Excess easement is defined as: Property acquired or used by the City for easement subsequently declared excess (not needed for any public project, the continuation of operation and maintenance of public facilities, and /or no foreseeable utility application in the future). 2. The easement abandonment tracts are not slated for utilization of any future public electric use. 3. The easement abandonments are in the public interest because the areas for the subject abandonment are no longer needed by the public and /or have not been utilized for the public. 4. These abandonments will not set precedent because the above three standards have been met. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. ESTIMATED SCHEDULE OF PROJECT Project was completed in spring 2013. Agenda Information Sheet October 15, 2013 Page 3 PRIOR ACTION/REVIEW (Council, Boards, Commissions) Staff Initialed Capital Improvements Project. The Public Utilities Board will be considering this item on October 14, 2013. Information on the vote will be provided prior to the Council meeting on October 15, 2013. FISCAL INFORMATION Not applicable. EXHIBITS 1. Location Map 2. Site Map 3 . Ordinance Prepared by: pcc- �. f5EAf4--5,mNe Doreen E. Blackstone Right of Way Agent Respectfully submitted: Paul Williamson Real Estate Manager LOCATION MAP sAlegal \our documents \ordinances \13 \catdenton 35 partial abandonment.doc ORDINANCE NO. AN ORDINANCE ABANDONING AND VACATING (1) THAT CERTAIN PUBLIC UTILITY EASEMENT, GRANTED TO THE CITY OF DENTON, TEXAS BY REX C. CAUBLE, PURSUANT TO THAT CERTAIN EASEMENT DATED DECEMBER 5, 1972, AND RECORDED IN VOLUME 735, PAGE 515, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, INSOFAR AND ONLY INSOFAR AS SUCH EASEMENT COVERS AND ENCUMBERS .443 ACRE OF LAND, AS DESCRIBED ON EXHIBIT "B ", ATTACHED HERETO AND MADE A PART HEREOF (THE "EXHIBIT B ABANDONMENT AREA "); AND (2) THAT CERTAIN PUBLIC UTILITY EASEMENT, GRANTED TO THE CITY OF DENTON, TEXAS BY REX C. CAUBLE, PURSUANT TO THAT CERTAIN EASEMENT, DATED DECEMBER 5, 1972, AND RECORDED IN VOLUME 735, PAGE 517, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, INSOFAR AND ONLY INSOFAR AS SUCH EASEMENT COVERS AND ENCUMBERS .334 ACRE OF LAND, AS DESCRIBED IN EXHIBIT "A ", ATTACHED HERETO AND MADE A PART HEREOF (THE "EXHIBIT A ABANDONMENT AREA ") (THE EASEMENTS DESCRIBED ABOVE ARE COLLECTIVELY REFERRED TO HEREIN AS THE "EASEMENTS ") (THE EXHIBIT A ABANDONMENT AREA AND THE EXHIBIT B ABANDONMENT AREA ARE COLLECTIVELY REFERRED TO HEREIN AS THE "ABANDONMENT AREA "), SAID EASEMENTS ENCUMBERING CERTAIN LANDS LOCATED IN THE A. WHITE SURVEY, ABSTRACT NO. 1406 AND N. WADE SURVEY, ABSTRACT NO. 1407, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED IN THE EASEMENTS, AND GENERALLY LOCATED APPROXIMATELY 1600' NORTHWEST OF THE INTERSECTION OF NORTH ELM STREET AND LOOP 288; AND DECLARING AN EFFECTIVE DATE. WHEREAS, CATDENTON 35, Inc., a Texas corporation ( "Owner "), has represented to the City of Denton that it is the underlying fee simple owner of the lands encumbered by the Easements, insofar as they cover and encumber the Abandonment Area, and the successor in interest to Rex C. Cauble in such lands; WHEREAS, the Owner has requested the City of Denton to partially abandon the Easements, insofar and only insofar as said Easements cover and encumber the Abandonment Area; WHEREAS, staff has reviewed the requested the partial abandonment of the Easements, insofar and only insofar as said Easements cover and encumber the Abandonment Area, by Owner, as provided above, and has recommended approval of such partial abandonments; and WHEREAS, the City Council of the City of Denton, Texas has determined that it is in the public interest to partially abandon the Easements, insofar and only insofar as said Easements cover and encumber the Abandonment Area; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations and findings contained in this ordinance are incorporated herein by reference the same as if filly set forth in this Section 1. SECTION 2. The Easements, INSOFAR AND ONLY INSOFAR as said Easements cover and encumber the Abandonment Area, are hereby permanently abandoned and, subject to the reservations set forth in this ordinance, all of the City's right, title and interest in the Easements, INSOFAR AND ONLY INSOFAR as said Easements cover and encumber the Abandonment Area, are hereby released to the Owner. A certified copy of this ordinance may be recorded in the Real Property Records of Denton County, Texas to evidence this abandonment and release. SECTION 3. Notwithstanding anything to the contrary contained in this ordinance, the City of Denton hereby retains and reserves (i) the Easements, insofar as the Easements may cover and encumber lands in addition to or other than the Abandonment Area; and (ii) any and all easements, rights of way and any other rights or interests, other than the Easements, whether acquired, obtained, owned or claimed by the City of Denton or public, by, through or under conveyance, dedication by plat or other express dedication, implied dedication, prescription, or by any other manner or means, in or to the Abandonment Area, and this partial abandonment and release shall not in any way or manner, affect any other right, title and interest of the City of Denton or public, as described above, in and to the Abandonment Area. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY li APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Page 2 MARK A. BURROUGHS, MAYOR rthur Surveying Co., Inc. - Pratessional Land Surveyors P.O. Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 �- Fax: (972) 221 -4675 EXHIBIT B 16' PUBLIC UTILITY EASEMENT ABANDONMENT 0.443 ACRES CITY OF DENTON, DENTON COUNTY, TEXAS BEING all that certain lot, tract or parcel of land situated in the Nathan Wade Survey, Abstract Number 1407 in the City of Denton, Denton County, Texas, being a part of a 16 foot wide Public Utility Easement to the City of Denton, recorded in Volume 735, Page 515 of the Deed Records of Denton County, Texas and being a part of that certain tract of land described by deed to Rancho Vista Development Company, recorded in Volume 2695, Page 465 of the Deed Records of Denton County, Texas, and being more particularly described as follows: BEGINNING at a 1/2 inch iron rod found for the southwest corner of Lot 1, Block A, Baruch Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet P, Page 173 of the Plat Records of Denton County, Texas, said point being an inner ell corner of said Rancho Vista Development Company tract; THENCE South 24 degrees 57 minutes 40 seconds East, with the northeast line of said 16 foot wide Public Utility Easement and over, through and across said Ranch Vista Development Company tract, a distance of 1206.05 feet to a point for corner in the north line of Loop 288, a public roadway, said point being also being the beginning of a non - tangent curve to the right having a radius of 5608.74 feet; THENCE continuing with said Loop 288 and said curve an arc length of 17.02 feet, having a delta angle of 00 degrees 10 minutes 26 seconds, whose chord bears South 84 degrees 59 minutes 50 seconds West, a distance of 17.02 feet to a point for corner and being in the southwest line of said 16 foot wide Public Utility Easement to the City of Denton; THENCE North 24 degrees 57 minutes 40 seconds West, over, through and across said Rancho Vista Development Company tract and with the southwest line of said 16 foot wide Public Utility Easement, a distance of 1203.81 feet to a point for corner; THENCE North 00 degrees 08 minutes 06 seconds East, with the west line of said 16 foot wide Public Utility Easement and continuing over, through and across said Rancho Vista Development Company tract, a distance of 3.70 feet to a point for corner; THENCE South 89 degrees 21 minutes 54 seconds East, continuing over, through and across said Rancho Vista Development Company tract, a distance of 16.00 feet to the POINT OF BEGINNING, and containing 0.443 acres of land, more or less. n p: \jvc\201 I \cod \ta travel center - 640191541 \dwg \1106234- 1_abandon2- revised.doc �o I I� I I> I I z Lot 1, Block A Baruch Addition w Cabinet P, Page 173 Proposed 20' Public Utility I �%� %S P. ( . X. Easement I I I� I� I vv 100 0 100 Feet SCALE 1 = 100 ' Bearings shown are based on the City of Denton G.I.S. network. approximate location ' (C.M.) (CM.) A. White Survey, A -1406 I t /2 "cR.F _ S89.21'54 "E_464.39' _ _ 1/2 /.R.F. N. Wade Survey, A -1407 \ \ LINE TABLE LINE BEARING DISTANCE L1 N00'08'06 "E 3.70' L2 S89'21'54 "E 16.00' \ \ \ Proposed \ ` \` \ 20' Temp. Const. \ \ \ Easement \ \ \ Proposed \ \ 16' Sanitary Sewer \ \ Easement Rancho Vista Development Company Volume 2695, Page 465 \ Tract One Called 78.865 Acres ZV3 \ �\ (78.615 Acres — remainder) 16 9 Public Utility Easement ABANDONMENT \ Vol. 735 Pg. 515 0 °443 Acres EXHIBIT B 01, \ \ 16 Public Utility Easement v v v ABANDONMENT 0.443 Acres in the \ \ \ n Nathan Wade Survey, Abst. No. 1407 City of Denton Denton County, Texas A - -2012— \\ \r rthur Surveying Co. Inc. _ _ _ 26 ' , A=00-1 Land Surveyors R=508.74',, L =1 7.02 972 - 221 -9439 — Fax 972 -221 -4675 S84-59'50 W 17-02 C2 �j 220 Elm Street, Suite 200 --- P.O. Box 54 Loop V v Lewisville, Texas 75067 P, \J— \2011 \C0D \TA TRAVEL CENTER - 640191541 \dig \1106234 -1 .b.nd.n2- REVISED.dng 8/29/2012 105545 AN CDT rthur Surveying Co., Inc. Professional Land Surveyors P.O. Box 54 Lewisville, Texas 75067 Office: (972) 221 -9439 -�- Fax: (972) 221 -4675 EXHIBIT A 16' PUBLIC UTILITY EASEMENT ABANDONMENT 0.334 ACRES CITY OF DENTON, DENTON COUNTY, TEXAS BEING all that certain lot, tract or parcel of land situated in the Alexander White Survey, Abstract Number 1406 and the Nathan Wade Survey, Abstract Number 1407 in the City of Denton, Denton County, Texas, being a part of a 16 foot wide Public Utility Easement to the City of Denton, recorded in Volume 735, Page 517 of the Deed Records of Denton County, Texas and being a part of that certain tract of land described by deed to Rancho Vista Development Company, recorded in Volume 2695, Page 465 of the Deed Records of Denton County, Texas, and being more particularly described as follows: BEGINNING at a point for corner in the most northerly east line of said Ranch Vista Development Company tract and being in the west line of Lot 1, Block A, Baruch Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet P, Page 173 of the Plat Records of Denton County, Texas, said point being South 00 degrees 08 minutes 06 seconds West, a distance of 23.36 feet from the most northerly northeast corner of said Ranch Vista Development Company tract; THENCE South 00 degrees 08 minutes 06 seconds West, with the west line of said Lot 1, Block A, a distance of 903.74 feet to a '/2 inch iron rod found at the southwest corner of said Lot 1, Block A; THENCE North 89 degrees 21 minutes 54 seconds West, over, through and across said Rancho Vista Development Company tract and with the south line of said 16 foot wide Public Utility Easement, a distance of 16.00 feet to a point for corner; THENCE North 00 degrees 08 minutes 06 seconds East, continuing over, through and across said Rancho Vista Development Company tract and with the west line of said 16 foot wide Public Utility Easement, a distance of 913.25 feet to a point for corner in the south line of a Proposed 20 foot wide Utility Easement to the City of Denton; THENCE South 58 degrees 45 minutes 57 seconds East, with the south line of said Proposed 20 foot wide Utility Easement to the City of Denton, a distance of 18.69 feet to the POINT OF BEGINNING, and containing 0.334 acres of land, more or less. I s fiA p: \jvc\2011 \cod \ta travel center - 640191541 \dwg \1106234- 1 —abandon Ldoc Proposed 20' \ Utility Easement ?� to the City of Denton L4 No filing info found S6.s 20' Public S NORTH 7 S),, 16' Utility Easement T' Utility Easement 566 F to the City of Denton ry Doc. No. 20ation Vol. 735, Pg. 517 <Q T— 100 0 100 Feet Communication Esmt. �!" G.T.E. Southwest Inc. CC# 94— ROD24309 � \ � SCALE : 1 = 100 Bearings shown are based on the City of Proposed 20' \ Denton G.I.S. network. Utility Easement \ to the City of Denton No filing info found I () 'P �%� • \ lJ \ rD N Ld ' Proposed O 20' Utility Easement � I to the City of Denton ® O P� 169 Public ZI, Utility Easement LINE TABLE LINE BEARING DISTANCE L1 N89'21'54 "W 16.00' L2 S58'45'57 "E 18.69' L3 S00.08'06 "W 23.36' L4 N00'05'01 "E 12.16' C ( Abandonment Vol. 7359 Pg. 511 (l 0.334 Acres 1/27 R.F. _ (� �0 o I 00 Lot 1, Flock A °o 0o Baruch Addition Z I cn Cabinet P, Page 173 ' 0 i_ o����� .��aae.a.�odaeaaa�000a��be Proposed 20'y Temporary Const.Aa Easement 4t EXHIBIT A S89'21'54 "E 16' Public Utility 464.39' (CA) A. White Survey, A -1406 _ 1 /2 "I. R. F. 1 /2/.R.F Esmt. Abandonment N. Wade Survey, A -1407 approximate location Pro osed 16' 0.334 Acres in the \ \�S °Easement Sewer Alexander White Survey, Abst. No. 1406 16' Public Utility City of Denton Esmt. ti (V.735/P.515) Denton County, Texas Abandoned by separate inst. \ \\ --2012 — Rancho Vista Development Company Volume 2695, Page 465 rthur Surveying Co., Inc. Tract One \ Professional Land Surveyors Called 78.865 Acres \ 972 -227 -9439 -- Fax 972 -221 -4675 (78.615 Acres — remainder) \ \\ 220 Elm Street, Suite 200 — P.O. Box 54 \ Lewisville, Texas 75067 P, \J— \2011 \C0D \TA TRAVEL CENTER - 6 4 01915 4 1 \dwg\11062 3 4- 1- nbnndonl.dwg 8/29/2012 10.54,46 AN CDT Coi,Y°ad� i3O Agei,Aa W AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Planning and Development ACM: John Cabrales, Jr. SUBJECT Consider adoption of an ordinance of the City Council of the City of Denton, Texas, approving guidelines for operation of the City of Denton Home Improvement Program and eligibility criteria; authorizing expenditures in excess of $50,000 for projects meeting program guidelines and criteria; and providing for an effective date. BACKGROUND This ordinance approves guidelines and eligibility criteria for the 2013 Home Improvement Program (HIP). Passage of this ordinance authorizes project payments that exceed $50,000 when the project meets program eligibility criteria and guidelines. City Council awarded Community Development Block Grant (CDBG) and Home Investment Partnership Program (HOME) grant funds to HIP for the 2013 -2014 program year as part of the City of Denton 2013 Action Plan for Housing and Community Development on May 7, 2013. Additional funding sources may include program income, and owner - provided personal funds. Bids are requested for all rehabilitation and reconstruction projects. Homeowners select their contractor from the bids that meet HIP guidelines. The following revisions are included in the 2013 HIP guidelines: 1.) There must not be any active levy or judgement against the applicant(s) or the property. 2.) Due to a reduction in funds, HIP will complete a maximum of two reconstructs with funding from each program year budget. All other funding will be used for rehabilitation of existing units. However, if no housing units on the waiting list are viable rehabilitation projects, additional reconstructions may be necessary to meet Federal expenditure requirements. 3) The reconstruction bid limit must not exceed more than 5 percent of the Community Development Division's cost estimate. 3.) To ensure compliance with Federal regulations, "Eligibility Income Limits" for Denton will be updated at the time the Department of Housing and Urban Development publishes revised limits. Current income limits became effective December 2012. RECOMMENDATION Staff recommends approving Home Improvement Program guidelines. Agenda Information Sheet October 15, 2013 Page 2 ESTIMATED SCHEDULE OF PROJECT The program guidelines will be in effect for owner - occupied rehabilitation and reconstruction projects completed from October 1, 2013 through September 30, 2014. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Community Development Advisory Committee recommended funding for the HIP and City Council approved the recommendation on May 7, 2013, as part of the City of Denton 2013 -14 Action Plan for Housing and Community Development. FISCAL INFORMATION Housing staff salaries related to program delivery will be paid with CDBG and HOME funds. No general fund dollars are included to manage this program. Respectfully submitted: w Brian Locldey, AICP, CPM Director Planning & Development Prepared by: Barbara Ross Community Development Administrator sAlegal \our documents \ordinances \13\2013 cdbg hip ordinance.docx AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, APPROVING GUIDELINES FOR OPERATION OF THE CITY OF DENTON HOME IMPROVEMENT PROGRAM AND ELIGIBILITY CRITERIA; AUTHORIZING EXPENDITURES IN EXCESS OF $50,000 FOR PROJECTS MEETING PROGRAM GUIDELINES AND CRITERIA; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton recognizes the need to assist low and moderate income families in securing safe, sanitary and decent housing; and WHEREAS, the City of Denton participates in a Home Improvement Program administered by the City of Denton Community Development Division and funded through a federal grant from the Department of Housing and Urban Development; and WHEREAS, the City Council deems it to be in the public interest to approve the Program Eligibility Criteria for the 2013 Program year; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council approves the 2013 Home Improvement Program Guidelines and Home Improvement Program Eligibility Criteria which are attached hereto and made a part of this ordinance for all purposes as Exhibit "A" and authorizes the City of Denton Community Development Division to administer this program. SECTION 2. The City Council authorizes the expenditure of funds in excess of $50,000 by the Community Development Division for projects meeting Program Guidelines and Criteria, subject to compliance with competitive bidding laws, where applicable. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Jf, Page 2 of 2 Exhibit A 2013 Home Improvement Program Guidelines 1111���1 Available in Spanish 1 Disponible en Espanol Effective Date: 10101/2013 EQUAL HOUSING EQUAL HOUSING OPPORTUNTY OPPORTUNTY Applicants) Is Subject To Any Guideline Changes Prior to Contract Execution Page 2 TABLE OF CONTENTS INTRODUCTION..................................................................................................................... ..............................4 HomeImprovement Program .................................................................................................... ..............................5 Description of General Program Procedures ............................................................................. ..............................5 I. PURPOSE ...................................................................................................................... ..............................5 II. DESIGNATED AUTHORITY ...................................................................................... ..............................5 III. ELIGIBILITY REQUIREMENTS: ............................................................................................................. 5 IV. APPLICATION PROCESSING .................................................................................... ..............................9 V. SELECTION OF RECIPIENTS FOR ASSISTANCE ................................................. .............................10 VI. WAIVERS AND APPEALS PROVISION .................................................................. .............................11 VII. FINANCIAL ASSISTANCE ........................................................................................ .............................11 VIII. CONTRACT REQUIREMENTS ................................................................................. .............................12 IX. PROJECT FEASIBILITY CRITERIA ......................................................................... .............................14 X. PROJECT COST LIMITS ............................................................................................ .............................15 XI. ALLOWABLE EXPENSES ......................................................................................... .............................16 XII. PROGRAM ACTIVITY OPTIONS ............................................................................. .............................16 A. Owner - Occupied Rehabilitation .............................................................. .............................17 B. Optional Reconstruction .......................................................................... .............................17 XIII. CONTRACTOR SELECTION AND PROJECT MONITORING .............................. .............................17 XIV. PAYMENTS TO CONTRACTOR .............................................................................. .............................20 XV. CONTRACTOR DEBARMENT .................................................................................. .............................20 APPENDICESLIST ................................................................................................................. .............................22 APPENDIX I Qualifying Income Limits for Federally Assisted Programs ................ ............................... 23 &24 APPENDIX 2 Targeted Neighborhoods Map ........................................................................... .............................25 APPENDIX 3 HOME Certification and Participation Agreement .......................................... .............................26 APPENDIX 4 Temporary Rehousing Questionnaire and Agreement ...................................... .............................30 APPENDIX 5 Space & Amenity Allowances For Reconstruction Activities .......................... .............................32 APPENDIX 6 LBP Hazard Control Relocation Policy and Procedure .................................... .............................34 Page 3 INTRODUCTION The City of Denton Home Improvement Program's objective is to assist low and moderate- income families in securing safe, sanitary and decent housing. This objective is accomplished through owner - occupied rehabilitation and optional reconstruction activities. Rehabilitation of an owner - occupied dwelling corrects code violations and makes needed repairs. If a dwelling is not feasible for rehabilitation, the applicant may be eligible for a replacement single - family dwelling. Optional reconstruction activity provides funds to demolish dilapidated dwellings and construct new modest, energy efficient and safe single - family dwellings on owners' lots. The Home Improvement Program is administered by the City of Denton Community Development and is funded by federal grant dollars from the United States Department of Housing and Urban Development (HUD), participating owner funds, program income and other grant and private dollars, when available. The following pages contain a detailed description of the Home Improvement Program including program and project guidelines, application instructions and project bidding process. The purpose of the guidelines is to explain to potential applicants and the citizens of Denton, the Home Improvement Program and the levels of assistance available. For further information or clarification of the guidelines, please contact the: Community Development Division 601 E. Hickory Street, Suite B Denton, Texas 76205 -4303 (940) 349 -7726 (Office) (940) 349 -7753 (Fax) Located at City Hall East — 2"d Floor Enter Building's West door on Railroad Street ADA /EOE /ADEA Texas State Relay (telephone device for the deaf): TDD (800) 735 -2989 EQUAL HOUSING OPPORTUNTY Page 4 Home Improvement Program Description of General Program Procedures I. PURPOSE A. The City of Denton Home Improvement Program provides technical and financial assistance for eligible low and moderate - income households to complete rehabilitation or reconstruction of their principal residence. B. Assistance shall be subject to the availability of program funds. Administrative procedures will be modified to meet any change in rules and HUD regulations that may occur over time. IL DESIGNATED AUTHORITY A. Administrative authority for implementation of the program will rest with the City of Denton Community Development Division. Community Development staff approves contractual and budget changes, as needed for project completion. B. The Community Development Administrator will have the responsibility for final determination of the amount of assistance available to individual applicants, in accordance with the program guidelines, policies and procedures. C. The Community Development Administrator will be responsible for approval of applicant eligibility for the program and final approval of applicants to be assisted. III. ELIGIBILITY REQUIREMENTS: Eligibility requirements must be met for both the applicant's household and the property. Eligibility for assistance is completed in two phases as described in sections A. and B. below. A. Applicant(s) / Household Eligibility Requirements: Must be a United States citizen or a legal resident alien. 2. Must own, currently occupy and have occupied the dwelling for at least the past two consecutive years. (The period of time an applicant has lived in a property under a lease for purchase or contract for deed form of purchase may be taken into consideration in calculating the two consecutive years.) Must hold a Fee Simple Title to the property. City staff will verify ownership through a general title search. a. If applicant is purchasing their home by a "contract for deed" (or a like contract), where applicant does not gain title to the property deed until all contractual obligations have been met, applicant is not eligible for assistance. The seller must provide the purchaser with a filed warranty deed on the property to satisfy this eligibility requirement. b. If applicant(s) inherited the property, the legal documents establishing applicant(s) has fee simple title to the property must be on file in the Denton County Cleric's Office. Applicant must provide proof of financial responsibility for the property (i.e. tax payments, and /or utility payments, fee simple title, executed, filed affidavit of heirship, etc.), and, proof of residency, both, for not less than the most recent two consecutive years. 4. Must meet program's income limits. Page 5 a. Gross annual total household income is at or below the following, adjusted for family size. Current maximum income limit by household size is (income limits effective 12/2012): Rehabilitation / Reconstruction 80% of the AMI Household Size Maximum Income Limit 1 $37,800 2 $43,200 3 $48,600 4 $54,000 5 $58,350 6 $62,650 7 $67,000 8 $71,300 b. Must not have assets (total combined for all household members) in excess of $100,000. NOTE 1: The appraised value of the applicant's property is excluded in total assets calculation. NOTE 2: Household income is calculated based on HUD's Technical Guide for Determining Income and Allowances for the HOME Program as described in the City's Home Improvement Program Policies and Procedures Manual. 5. Must have acceptable credit under the City of Denton Community Development underwriting policy. Applicant(s) must exhibit the financial ability to pay creditors, including the following basic housing expenses: a. Home Mortgage Payment, including the loan with the City of Denton for Home Improvement assistance; b. Loan and revolving credit payment(s); C. Property Taxes (City, County, DISD) for all owned properties; d. Homeowner's Insurance Policy premiums; e. Utilities: electrical /water /sewage /solid waste and gas. 6. Must not have any active levy or judgment against applicant(s) or the property. 7. Applicants denied assistance due to poor credit history may be reconsidered for the program upon verifiable completion of six (6) consecutive months of successful debt management with GreenPath Debt Solutions, 723 South I35E, Suite 210, Denton, TX 76205, ww.greenpath.com /home.htm or other debt management companies. Note: Debt management will be recertified prior to signing contracts. 8. Must demonstrate that current and projected income exceeds projected housing expenses and would allow the applicant to maintain the dwelling. 9. Homeowner may be required to provide owner contribution toward project cost (see Section VILA.). 10. Pre - existing mortgage note balance cannot exceed 80 percent of the property's after appraised value for rehabilitation and 70 percent of the property's after appraised value for reconstruction. Page 6 11. See "household" guideline at section III.B.10,a. below. NOTE: The City of Denton reserves the right to request an independent market analysis, B. Property Eligibility Requirements 1. Must be zoned to allow for single - family construction and be situated in a Targeted Neighborhood within the city limits of Denton (Refer to Targeted Neighborhoods Map - Appendix 2), 2. Must exhibit building code deficiencies that make the dwelling unsafe or unsanitary. 3. Structure must be more than 20 years old. 4. May not have existing property code violations (such as high weeds, trash, debris, junk vehicles, etc). Any liens placed on a property for correcting any past or present code violations must be paid in full by the time application processing occurs. Any items cited as a code violation on the property must be corrected or removed before assistance is provided. 5. Must be serviced by or be accessible to City- approved water supply, sanitary sewer and electrical system. 6. Must meet all of the City of Denton's Land Development Codes. 7. Must comply with and meet all environmental regulations; i.e., historical, floodplain, noise, lead, etc. 8. May not exceed Community Development Replacement Housing Space Allowances Policy for reconstruction. Projects that would exceed the set standards due to property deed restrictions or neighborhood minimum requirements are not eligible for assistance. 9. Must be covered by an approved homeowner's insurance policy. NOTE: If an applicant's property is not currently insurable because of its present condition or the property is going to be reconstructed, the applicant must sign a HOMEOWNER AFFIDAVIT OF UNDERSTANDING AGREEMENT FOR HOMEOWNER'S INSURANCE to satisfy this eligibility requirement. Proof of homeowners insurance must be provided at completion of a rehab or reconstruction. 10. Households and /or properties previously assisted through this program may or may not be eligible for additional assistance as follows: a. A household that has received assistance to rehabilitate or reconstruct a home that they subsequently sold is not eligible for assistance on another housing unit. b. A property that received rehabilitation assistance after August 1996 when the total dollar amount spent was above $40,000 is not eligible for additional assistance from this program. c. A property that received rehabilitation assistance before August 1996 may be eligible for additional assistance when all liens have been paid and released. d. A property that has received reconstruction assistance is not eligible for additional assistance from this program. IV. APPLICATION PROCESSING A. To be placed on the waiting list, applicants must meet the following criteria: 1. Household's total gross annual income does not exceed current program income limits (See Appendix 1). Page 7 2. Property is occupied by the owner and is their principal residence. 3. Property is located in a Targeted Neighborhood (see Appendix 2). 4. Property meets all requirements in Section III.B. 5. Applicant must complete a Waiting List Application Form and attach a copy of their property deed or proof of ownership. (Waiting List Application Forms are available at the Community Development Division, 601 E. Hickory Street, Suite B Denton, Texas, 76205, 940 - 349 - 7726.) B. Upon submission of a waiting list application to Community Development, applicants are placed on the waiting list in the order in which their application was received. C. When applicant reaches the top of the waiting list, they will be notified in writing to complete the application process and must provide all items requested on the checklist. In addition to checklist items, further documentation may be required to process application. NOTE: Contact deadline dates will be specified in the notice to apply letter from Community Development. Applicant must schedule an appointment to apply and must submit required application information prior to the stated deadline. These deadlines are strictly enforced. D. Application information regarding household income and composition must be complete, accurate and up -to -date. All information will be verified by Community Development staff. Any intentionally falsified information will cause the application to be rejected and the applicant will not be allowed to reapply. Failure to disclose information that may affect eligibility requirements shall also constitute fraud. Applicants shall be required to make full restitution to the City in the event Community Development services are provided to applicants who provided inaccurate or incomplete information in order to meet eligibility requirements. E. Applicant must provide a detailed personal budget that includes the household's expenditures and net incomes to determine if household has enough discretionary income available to pay back a loan to the City. F. Applicant must attend a homeownership workshop, with emphasis being placed on maintenance, budgeting, cost effective decorating, and responsibilities of home ownership. G. Community Development staff will notify eligible applicant(s) of the financial assistance category he /she is eligible for under the program guidelines. Applicant will be notified that final eligibility for assistance is determined upon completion of the feasibility study of the property. Ineligible applicants will be notified of the reason their application for assistance is being rejected. H. Any applicant who feels that s /he has been unjustly denied assistance under the Home Improvement Program should follow the appeal procedure outlined in Section VI. V. SELECTION OF RECIPIENTS FOR ASSISTANCE A. Assistance will be provided to households based on the following: Households assisted. Assistance will be provided on a first come, first served basis. The date upon which the Eligibility Certification Part I was approved will be used to determine the order of assistance. 2. Funding availability. The HIP Program project targets stated in the Action Plan must be met. If funds needed to complete a project are not available, the applicant will be assisted based on the date of application submission when funds become available. 3. Funding available for reconstructions. Annual (CD program year) HIP funding will assist a maximum of two reconstructions. All other funding available will be used for rehabilitation of Page 8 existing units. However, if no housing units on the waiting list are viable rehabilitation projects, additional reconstructions may be necessary to meet Federal expenditure requirements. B. Community Development Staff will provide counseling and assistance as needed to facilitate the applicant's rehousing /housing, including the following: 1. Information on the program and rehousing /housing options available. 2. Assistance in soliciting bids for replacement housing. 3. Assistance in contractual compliance between applicant and contractor. 4. Assistance in inspection of construction of replacement dwelling, if applicable. C. When a home requires reconstruction and the applicant has a Denton Central Appraisal District "Over 65" exemption, staff will place this project in a position to begin that ensures it can be demolished and reconstructed within the same calendar year in order to preserve the exemption. In some instances, that may require a delay in assisting by three or four months. VI. WAIVERS AND APPEALS PROVISION A. Request for Waiver: The City of Denton Home Improvement Program must follow specific guidelines in order to assure proper administration and management. In the event that an applicant feels that his /her circumstances require special consideration, s /he may request, in writing, a waiver from the usual requirements. All requests should specify the requirement(s) to be considered for waiver and state the applicant's reason(s) or special circumstances why s /he believes a waiver should be approved. The Community Development Administrator will review requests on a case -by -case basis. Applicant will be notified in writing of the final decision. VII. FINANCIAL ASSISTANCE A. Owner Contribution is a percentage of the total project cost that the applicant must provide at contract signing. These funds are held in an escrow account and will be expended before City funds are used when malting contractor payments. The owner contribution increases on a sliding scale as household income increases. See Appendix I for percent of owner contribution by income ranges and family size. B. City of Denton Funds: The City of Denton will fund the remaining project costs using Federal HUD CDBG and HOME dollars, program income and private funds, when available. C. Term of the Note is determined by the activity to be completed and /or total project cost as follows: Activity / Project Cost Term Rehabilitation/Below $10,000 60 months (5 years) Rehabilitation/Between $10,000 - $25,000 120 months (10 years) Rehabilitation/Above $25,000 - $45,000 180 months (15 years) Reconstruction or Rehabilitation/Above $45,000 240 months (20 years) D. Financial Assistance Levels: The City- funded dollars are payable through a two -part loan. See Appendix I for income ranges by household size, payable to deferred loan ratios and description of Payable and Deferred loans. E. Applying to the Home Improvement Program is voluntary. Funds for temporary relocation are not provided. VIII. CONTRACT REQUIREMENTS A. The City of Denton will be in the first lien position. When a first lien position is not possible, the City may accept second lien position, subject to the review and approval of the Community Page 9 Development Administrator. Liens are released once all the requirements and conditions of the deed and promissory note have been met. B. DEFAULT ON CONTRACT: If the applicant defaults on their contract, the lien will be called due in full, and referred to the City of Denton's Legal Department to begin acceleration of the note as allowed by law. The City will make every effort to work with the applicant to avoid foreclosure and will examine each situation on a case -by -case basis. Examples of loan default include, but are not limited to: 1.) Delinquent loan payments; 2.) Failure of grantee to reside in the assisted dwelling unit as the principal residence of applicant; 3.) Failure to maintain adequate homeowner insurance coverage; 4.) Failure to pay property taxes when due;5.) Failure to pay utility bills when due. C. SALE OF PROPERTY: In the event the grantee sells the property prior to maturity of the note, the sum of the unpaid balance of the loan and the unforgiven balance of the deferred loan amount will become due immediately. Under no circumstance will assistance be provided to grantee on any future property purchased. D. DISCONTINUATION OF RESIDENCY: In the event the owner(s) no longer resides in the unit due to death or a permanent medical condition and the heirs /owner decide to sell the property, the City of Denton will accept as settlement of the note the lesser of: 1. Sixty -five (65) percent of the property's market value at the time of sale (the City reserves the right to conduct an independent appraisal), or, 2. Payment of the entire loan balance (both payable and forgivable) owed at the time of grantee's death or date grantee was no longer able to reside in his /her home due to medical reasons. If the heir(s) decides a family member will permanently reside in the property, the City of Denton will negotiate a modified and /or continuation of the note depending on beneficiary income and ownership circumstances. If the heirs decide to set up the property as a rental unit, they will pay the balance due as calculated in "D" above and may request a monthly payment arrangement. The heirs will be required to 1.) gain simple fee title ownership to the property; 2.) complete the application process providing household income and backup documentation, when an heir will become owner; and, 3.) sign a Modification of Note and Lien. NOTE: Invoicing on the balance due will resume in three (3) months from "event" date unless other arrangements are requested by heir(s) and approved by the Community Development Administrator. E. TEMPORARY DISCONTINUATION OF RESIDENCY: In the event the owner(s) temporarily discontinues residence due to a medical condition, but has a all intention to return to the primary residence; owner must continue to make timely loan payments and comply with the following: 1. Keeping the property in good repair and condition; 2. Paying all taxes and assessments on the property when due; 3. Preserving the lien's priority as it is established in this deed of trust; 4. Maintaining in a form acceptable to Beneficiary, an insurance policy; a. If a house remains vacant for 60 days or longer, an insurance company could cancel the policy, or deny claims. It is the homeowner's responsibility, if the home is vacant for more than 60 days, to ensure that the house has required insurance coverage. Homeowner is responsible for contacting their insurance company to ensure coverage. Coverage must comply with the following: - covers all improvements for their full insurable value - contains a replacement cost coverage clause for the reconstructed structure - provides fire and extended coverage, including windstorm coverage Page 10 - protects Beneficiary with a standard mortgage clause - provides flood insurance at any time property is in a flood hazard area. b. After homeowner returns home, it will be the homeowner's responsibility to ensure that the policy is a homeowner's insurance policy and complies with all contract requirements. F. LOSS OF HOUSEHOLD INCOME: If, after the project begins, a household experiences a permanent, substantial loss of household income, an applicant may request a re- evaluation of their total annual gross household income. This evaluation may result in a decrease in the payable portion of the note. The loss of income must be from an income - earning household member(s) whose income was used in determining the original loan assistance category. Please note: Loss of employment (voluntarily or involuntarily) is not considered a "permanent loss ". For purpose of this program "permanent loss" is defined as: 1. death 2. retirement (must be 62 years of age or older) 3. permanent disability 4. Other substantial permanent loss of income, when approved by Community Development Administrator. All household members must complete all income information and forms as required in section IV, Application Processing - Application processing will be completed to determine if an adjustment and /or extension to the payable portion of the note is eligible. A determination will be made after evaluating the household size and income using the program guideline income limits and financial assistance categories that are being used at the time the request for reduced loan payment is made. When a loan adjustment and /or extension is granted, the applicant must sign a Modification and Extension of Real Estate Note and Lien reflecting the adjustment and /or extension of the note. IX. PROJECT FEASIBILITY CRITERIA A. A decision as to the type and amount of assistance an applicant is allowed is based on the feasibility of a property to be rehabilitated. An assessment will be completed using the following factors: 1. Determine if the rehabilitation cost will be affected by: the zoning of a property, a property being located in a designated 100 -year floodplain or floodway, a need to abate possible presence of lead -based paint, possible historical restoration requirements, or if a rehab will reduce noise levels if property is in a high noise area. NOTE: The Floodplain Management regulations may limit the total cost of all non -code repairs for any dwelling located in a designated 100 -year floodplain to 50 percent of a property's pre - rehabilitation appraised value as set by the Denton Central Appraisal District (dwelling [not land] value only). 2. Determine if the framework and foundation of a dwelling are stable, or can be made stable through rehabilitation. (May allow for structural engineer evaluation of structure when staff cannot determine.) 3. Lead -based paint hazard reduction techniques will be used when lead -based paint exceeds HUD's acceptable limits for lead content in existing paint. The limits for lead content exceed HUD's limits when lead content exceeds 1 mg per cm2 (one milligram per centimeter squared), or 5000 ppm (parts per million). The reduction techniques used by this program are described and found in the U. S. Department of Housing & Urban Development's publication, Guidelines for the Evaluation and Control of Lead -Based Paint Hazards in Housing, issued June 1995. Page 11 NOTE: The homeowner may be required to make arrangements for household's relocation if it is required in the Homeowner Protection Plan for Lead Based Paint Hazard Control work. See Lead -Based Paint Hazard Control Policy & Procedure for more information. 4. Is a room addition(s) needed to relieve serious overcrowding? NOTE: Room additions and improvements to relieve serious overcrowding may be eligible and require the approval of the Community Development Administrator. B. A structural evaluation and project cost determination is completed. Projects that will exceed the Project Cost Limits (Section X) are not eligible for rehabilitation assistance. Applicant may be referred for optional reconstruction assistance. X. PROJECT COST LIMITS A. A rehabilitation project must meet all of the following tests to be considered feasible to rehabilitate. Projects not feasible for the rehabilitation activity may be eligible for reconstruction and must meet the cost criteria in items 2 and 3 of this section. Rehabilitation: Using the post project square feet (properties less than 1000 SF use 1000 SF to calculate), rehabilitation is limited to $55 per square foot of total living space up to a maximum bid limit of $70,000, plus 10% for potential change orders. Exceptions: An additional $10 per square foot may be available to comply with lead reduction. An additional $10 per square foot may be available to comply with historical requirements. When rehabilitation includes either lead -based paint and /or historical work, a project bid is limited to a maximum of $80,000, plus 10% for potential change orders. 2. Reconstruction: Bids submitted contractors must be reasonable and must not exceed more than 5 percent of Community Development staff's cost estimate. Total project cost will not exceed the current Maximum Per Unit Home Subsidy Limits for Denton as set by HUD (See Appendix I). 4. The after project appraised property value will not exceed 95% of the current Single Family Mortgage Limit for Denton as established by HUD (See Appendix I). B. PROGRAM MINIMUM LIMITS FOR Home Improvement projects: A dwelling needing less than $5000 of repairs is not eligible for Home Improvement Program assistance. XI. ALLOWABLE EXPENSES Federal CDBG and HOME grant funds will be used to pay for eligible project costs to complete substantial rehabilitation of existing owner - occupied properties and reconstruction of substandard owner - occupied properties. Some allowable fees are: o Cost of room addition(s), to relieve serious overcrowding when approved by the Community Development Administrator. o Demolition of substandard structures as needed to complete projects. o Costs necessary to build modest, energy efficient, safe and sanitary replacement of principal residences o Other eligible expenses the Community Development Division determines necessary to facilitate the completion of activities allowed by this program (Example: title search, filing fees, platting, engineering reports, permit and tap fees, etc.) o Eligible administrative costs. o Other fees and costs as allowed by the CDBG and HOME regulations. Page 12 NOTE: Funds for temporary relocation during project construction are not provided. XII. PROGRAM ACTIVITY OPTIONS The Home Improvement Program provides three options. The process required for all activities will be: Process o CD staff will complete a project feasibility study. This inspection will include a detailed evaluation of all deficiencies needing to be addressed to bring the dwelling up to minimum program standards. o Activity option determined based on feasibility criteria (Section IX.). o Project details completed and approved by applicant. o CD staff completes a cost estimate of the work to be completed. o CD Administrator certifies the project as "eligible" or "not eligible." o If eligible for reconstruction, applicant must sign the Temporary Rehousing Questionnaire and Agreement (Appendix 4) or for rehabilitation of homes built before 1978, the Lead Based Paint Hazard Control Relocation Policy and Procedure (Appendix 6). o Bid packet is prepared, bid out as described in Contractor Selection and Monitoring (Section XIII), owner chooses contractor from eligible bids, contracts are signed and project begins. o The City's Building Inspections and CD staff inspects project's progress routinely to ensure compliance with City codes and project specifications. Community Development staff completes final inspection. o For reconstruction activity, owner must have utilities connected and provide proof of homeowner's insurance before property can be occupied. o Project is closed upon contractor receiving contingency payment; owner receives loan payment schedule; invoicing begins. In the event a procedure is not addressed in these guidelines the Program Manager will determine the best course of action. A. Owner - Occupied Rehabilitation This activity will assist eligible applicants to rehabilitate single - family principal residences by making needed repairs with the first priority being to correct code violations. This activity is eligible when a completed project will yield a structurally sound, safe, sanitary and decent single - family dwelling that meets City's building codes (see Section IX). B. Optional Reconstruction The reconstruction activity is offered when existing dwellings are not feasible for rehabilitation. Optional reconstruction provides funds to demolish existing dilapidated dwellings and reconstruct modest, energy efficient, safe and sanitary replacement single- family dwellings. XIII. CONTRACTOR SELECTION AND PROJECT MONITORING All applicants are responsible for finding a contractor who will develop a proposal to complete approved home improvement activity. Eligible applicants may request assistance from Community Development staff to help homeowner with the bidding process. The homeowner may elect to seek a bid proposal from a qualified contractor of their choice. Bids by contractors submitted by the applicant must be reasonable Page 13 (within 10 percent, high or low, of the Community Development cost estimate). Contractors selected by the applicants must meet eligibility and insurance requirements. Contact any reputable and experienced contractor and request a bid for the required work. IF YOU HAVE ANY TROUBLE FINDING A CONTRACTOR, contact any of the following places for assistance: • Your local Better Business Bureau • Any friends or neighbors who have had remodeling done to their properties. • Chamber of Commerce • Community Development Contractor's List When a contractor comes to meet with you, you should: • Show him/her the mandatory work items that have been identified by the Community Development per the work write up, construction plans and project standards. • Advise him/her that the bid proposal must be returned to you for submission to the rehabilitation program by a due date. DO NOT SIGN ANY AGREEMENT WITH THE CONTRACTOR. Owner must submit the contractor's bid proposal to the Community Development at 601 E. Hickory Street, Suite B Denton, TX 76205. The Community Development staff will review the proposal to verify that: 1. The contractor is licensed and has all City- required insurance coverage. 2. All required improvements have been included in the bid. 3. The proposed work is in conformance with the program's General Specifications. 4. All proposed costs are reasonable (as verified by CD staff prepared cost estimate). 5. The contractor chosen by owner has not been disqualified by any local, State or Federal government agency. Any contractor whose name appears on the most current HUD or City of Denton Debarred Contractor's List will not be eligible to participate in this program. References will be checked and claims of substandard workmanship will be cause to declare a contractor ineligible. The contractor must also submit all required proof of insurance forms and bonds (if applicable). Failure to submit these will result in rejection of the bid proposal. The bid proposals that are submitted by the applicant will be reviewed by Community Development to determine if the total bid price is reasonable per cost estimate and under the maximum allowable amount. THE CITY OF DENTON AND THE APPLICANT RESERVE THE RIGHT TO REJECT ANY AND ALL BIDS. If the Community Development Administrator approves the bid proposal submitted by the applicant, the Community Development staff shall proceed. A construction contract must be signed. Before the contractor can start work, the applicant must issue a notice to proceed. After the owner's three day right of rescission has passed, contractor must apply for and obtain approved appropriate building permits as required by the City of Denton Building Inspections Division before any work may begin. When a project involves reconstruction of a substandard home, Page 14 contractor must have an approved building permit in hand prior to applying for a permit to demolish the substandard structure. The contractor's work will be monitored by the applicant, Community Development staff and the City of Denton building code inspector. If the applicant considers any work done by the contractor to be unsatisfactory or incomplete, the applicant should advise the contractor of the discrepancy and ask that it be corrected. In the event a dispute exists between the applicant and the contractor with respect to the work, the City shall take appropriate action in accordance with the provisions of the construction contract to assure that the applicant is satisfied before making any payment to the contractor. In the event a dispute cannot be resolved, the Department Director shall consider all pertinent facts and shall decide an appropriate course of action to resolve the dispute. Acceptance of Work 1. Final Inspection: In order for the contractor to close out a project, a final inspection shall be made by the City of Denton building code inspector, the Community Development staff, and the applicant. If the final inspection results in no additional work or no specified corrections, the applicant shall sign final payment request stating that all work has been completed to their (applicant's) satisfaction. The building code inspector shall sign a final inspection form to confirm the same. At this time, the contractor is advised to submit to the Community Development copies of all warranties and releases of liens from subcontractors and suppliers prior to contingency payment. 2. Warranty of Work As stated in the contract, the contractor shall guarantee the work performed for a period of at least one -year from the date of final acceptance. The contractor will return in thirty (30) days and ask the applicant if any additional repairs are necessary. Any deficiencies or necessary repairs to specified work will be completed at this time. XIV. PAYMENTS TO CONTRACTOR A. The contractor shall receive approved final payment, minus a 10 percent contingency, for completed contract within 15 working days after final inspection approval. The contingency is calculated on the final contract amount by adding the total project bid amount plus or minus change orders, minus, if applicable, the cost for demolition. Contingency is withheld for thirty (30) days from the date of final acceptance by Community Development staff. After thirty days, if no additional or warranty work remains, the contractor must request written approval from owner and CD staff to release withheld contingency funds. Contractor must endorse the Mechanic's Lien Note over to the City of Denton and sign a release of note and lien of the Mechanic's Lien Contract before contingency payment can be released. B. A contractor may request interim - project payments throughout the course of the project. Interim payments will be made available to the contractor upon applicant and CD staff approval of any contract work that has been completed. Contractor will submit a CONTRACTOR REQUEST FOR PAYMENT AND PERIODIC STATEMENT form to the applicant when requesting payments. C. An "All Bills Paid" affidavit and release of lien from all subcontractors and suppliers must be submitted to the Community Development before final payment can be released to contractor. Any electrical, plumbing, mechanical, window and /or other required permits, Energy Star certification, when required, and termite inspection report must also be submitted to the Community Development prior to releasing contingency payment to the contractor. XV. CONTRACTOR DEBARMENT A. A contractor will be declared ineligible to participate in projects funded by the City of Denton Home Improvement Program for one or more of the following causes: Page 15 I . Failure to complete a project within the prescribed contract period. 2. Failure to complete warranty repairs within a reasonable time period. 3. Failure to use licensed plumbing and electrical subcontractors. 4. Failure to obtain City - required insurance, i.e., general contractor's liability, automobile liability and builder's risk (if applicable). 5. Failure to complete work in accordance with program specifications and /or accepted standards of workmanship. 6. Failure to pay all subcontractors working on the project appropriately and /or by not submitting affidavits of payment signed by all subcontractors. 7. Failure to obtain proper permits for work in progress. 8. Failure to treat applicants with respect and courtesy. 9. Other offenses not described here when the Community Development Director believes a contractor's action(s) does not serve the best interest of the program, the City or the applicant. B. Contractors will be notified of their proposed debarment and will be afforded the opportunity to comment or appeal the action. All appeals must be made in writing to the CD Administrator, Community Development Division, 601 E Hickory St., Ste. B, Denton, TX 76205 -4303 by the 15th day from the date of the notification letter. Page 16 APPENDICES Appendix 1 Qualifying Income Limits and Ranges for the City of Denton's Federally Assisted Programs Appendix 2 Target Neighborhoods Map Appendix 3 Homeowner HOME Certification and Agreement to Participate in the Home Improvement Program Owner Occupied Assistance Appendix 4 Temporary Rehousing Questionnaire and Agreement Appendix 5 Space & Amenity Allowances For Reconstruction Activities Appendix 6 Lead Based Paint Hazard Control Relocation Policy and Procedure Page 17 APPENDIX 1 FY 2013/2014 5 City of Denton Community Development Division $49,200 - $37,901 $37,900 - $22,751 Qualifying Income Limits for Federally Assisted Programs 6 and Optional Reconstruction Eligible Income Ranges $40,700 - $24,451 "Rehabilcilalion mits are set by HUD - adjusted on HUD's effective dates $67,000 - $56,501 $56,500 - $43,501 $43,500 - $26,151 2 -Part Loan *60% Payable / $71,300 - $60,151 $60,150 - $46,301 $46,300 - 27,801 *40% Payable / *25% Payable / *15% Payable / Ratio* 40% Deferred 60% Deferred 75% Deferred 85% Deferred Owner 1 % of Total .75% of Total .5% of Total .25% of Total Contribution Project Cost Project Cost Project Cost Project Cost Income Range Moderate Low Very-Low Extremely -Low Family Size 80% AMI - 65% AMI 65% AMI - 50% AMI 50% AMI 30% AMI < -30% AMI 1 $37,800 - $31,901 $31,900 - $24,551 $24,550 - $14,751 $14,750 or Below 2 $43,200 - $36,451 $36,450 - $28,051 $28,050 - $16,851 $16,850 or Below 3 $48,600- $41,001 $41,000 - $31,551 $31,550 - $18,951 $18,950 or Below 4 $54,000 - $45,551 $45,550 - $35,051 $35,050 - $21,051 $21,050 or Below 5 $58,350 - $49,201 $49,200 - $37,901 $37,900 - $22,751 $22,750 or Below 6 $62,650 - $52,851 $52,850 - $40,701 $40,700 - $24,451 $24,450 or Below 7 $67,000 - $56,501 $56,500 - $43,501 $43,500 - $26,151 $26,150 or Below 8 $71,300 - $60,151 $60,150 - $46,301 $46,300 - 27,801 $27,800 or Below Appendix 1 Page 18 *In this two -part loan: Appendix 1 (Continued) Part I: Payable Loan is based on a percentage of the total City -paid project cost (see Section VII.D.). The payable portion of the loan is amortized over the term of the note (60 to 240 months - see Section VII.C.), and carries a 2 percent interest rate. There is no penalty for paying the payable loan off early. Part II: Deferred Loan is based on a percentage of the total City -paid project cost (see Section VII.D.). This portion of the loan carries a zero percent interest rate. For every month applicant complies with deed and note requirements, a fraction of the deferred loan is forgiven (on a 5 -year note, 1/60, on a 10 -year note 1/120, on a 15 -year note 1/180, and on a 20 -year note 1/240). The deferred loan terms are from between 60 to 240 months (5 to 20 years) based on project cost and /or type of assistance activity (see Section VII.C.). At the end of the contract term the deferred loan is forgiven, provided applicant has satisfied all the conditions listed in the Deed of Trust and Promissory Note. The deferred loan is secured by a lien on the property. *Persons aae 62 or older are eligible to receive a reduction of half of the payable loan percentage (rounded down). The reduced amount will be added to the deferred portion of the loan. Reportable Income: Gross income for all household members aged 18 and above must be included to determine household's eligibility to receive assistance; however, some household members' incomes may be excluded when determining the payback category that the eligible household will be approved for. They are: applicant's children, grandchildren or legal guardians of the applicant who are ages 18 up to 26 and /or children aged 22 up to 26 who are full or part-time students. Incomes for household members aged 26 and older will be included in determining the payback category for the household. Income Limit Source: U.S. Department of Housing and Urban Development. Effective: 12/2012 Appendix 1 Page 19 APPENDIX 2 City of Denton, Texas Targeted Neighborhoods Map R Loor zaa I �,���e � HERGULES. ,I i t o j P s j d ' '} i- h y i �' I 3 y r �5 v'�f b> 71 k K r^ x iyS�� k R �� a j , 1 .. � 1) l - i �� �dt) � � � � • • � k _ KI � t 0 h RA EMERY ..: rt" ) ._ki i , (f i ) 7 a� �i 4 } ) j )� �NICKQRY b � 3_ .• + � � 1 �,�. � � SYCAh10RE i �„ � �,�` t " E PRAIRIE Fri] MOR6E �s_ t d JF1� � � j G FAITH. It 11 rl � I Appendix 2 Page 20 APPENDIX 3 Home Improvement Program HOME Beneficiary Written Agreement Homeowner Name(s) & Property Address: As stated in 24 CFR 92.504, each recipient of HOME funds must enter into a written agreement with every entity that benefits from the use of the awarded funds. This HOME Investment Partnerships Program Home Improvement Agreement ( "Agreement ") is entered into by the City of Denton, Texas, ( "City ") and Homeowner Name (hereinafter called "Homeowner" whether one or more persons). This Agreement applies only to the Homeowner and dwelling unit ( "Property "), as identified above. This Agreement describes the HOME Program rules that pertain to the assistance provided through the City of Denton's Home Improvement Program. By initialing the items listed below, Homeowner confirms that each item has been read and Homeowner understands and agrees to comply with each item, as applicable; 1. USE OF HOME PROGRAM FUNDING The City will provide HOME Program funding in the estimated amount of $.00 to assist with the cost to rehabilitate /reconstruct the Homeowner's Property as listed above. ❑ Rehabilitation of an owner - occupied home; F1 Reconstruction of an owner - occupied home on an existing site At the time Homeowner is approved for HOME Program assistance, Homeowner has an ownership interest in and occupies the Property to be rehabilitated /reconstructed as his /her principal residence. Homeowner agrees to continue 'to occupy the Property as his /her principal residence for 5 -20 years from the date the rehabilitation /reconstruction work is completed. This is called the lien period. At the time Homeowner is approved for the HOME Program assistance, the Homeowner qualifies as a low- income household with a gross household income that does not exceed 80% of the area median income as established by the U.S. Department of Housing and Urban Development for the Dallas TX HUD Metro FMR Area, adjusted for household size, and as updated annually. 00 Area Median Income (adjusted for family size _) The HOME Program assistance provided by the City will be secured by a promissory note and recorded subordinate deed of trust (no lower than second position). Monthly payments will be required on this payable portion of the assistance at 2% interest. The deferred loan portion will be provided at 0% interest and will be forgiven, as listed on promissory note, for each full month the Homeowner uses the Property as his /her principal residence during. the lien period. For more details, please review Home Improvement Program Guidelines, Actual payment information will be included in the Promissory Note. Housing rehabilitation /reconstruction work will provide general rehabilitation /reconstruction necessary to bring the structure into compliance with the City of Denton's applicable written building codes and property standards, housing rehabilitation /reconstruction program standards, lead -based paint regulations, and HOME Program property standards. Rehabilitation /reconstruction work to be completed will only be as specified in the approved written work specification for the Property and any approved change orders, Said City of Denton applicable written building codes and property standards, housing rehabilitation /reconstruction program standards, lead -based paint regulations, HOME Program property standards, and written work specifications and change orders are incorporated herein by reference. Appendix 3 Page 21 The after -rehab value of Property must not exceed the 203(b) FHA Mortgage Limits for the Dallas -Fort Worth - Arlington, TX metropolitan area. 203(b) FHA Mortgage Limit: $189,349 (1 unit) REHAB: Estimated Milestones 5.10 days 7.12 days 12.24 days 24.30 days 30.60 days 50.75 days 75.90 days Permits Work begun - Electrical & HVAC, Drywall, Painting, Miscellaneous issued Foundation Plumbing Windows cabinetry, Floor finish out. sheathing and repairs and rough - & doors. finish coverings, roofing HVAC & roof begun Structural Plumbing Attic windows I sheathing repairs begun and insulation Electrical RECONSTRUCT: Estimated Milestones 30 -40 40.50 days 50.65 days 65.80 days 80.100 days 100 days days Insulation Drywall, texture, Painting, HVAC, electrical Finals insp, And Permits Demolition Foundation Framing, Plumbing, Seconds issued and clearance including sheathing and electrical, Inspection inspection plumbing roofing HVAC & including rough I windows I sheathing 100.115 days 115 days 115.125 days 125.150. days 150.175 days 175.180 days Wall Insulation Drywall, texture, Painting, HVAC, electrical Finals insp, And insulation, inspection & and trim out incl cabinetry floors & plumbing E/S insp. masonry Energy Star 1St doors finish out inspection 2. PROPERTY STANDARDS All rehabilitation /reconstruction work write up /bid specifications /plans, completed by Community Development staff, will be completed in compliance with the City's Home Improvement Program written property standards and all applicable written local building and property codes and standards. REHABILITATION — Repairs are made to the existing home in order to eliminate its construction deficiencies, in accordance with the Home Improvement Program Minimum Construction Standards as established by the City of Denton Home Improvement Program. The homeowner may be required to make arrangements for relocation while the rehabilitation takes place. RECONSTRUCTION — Due to excessive construction deficiencies which cannot be repaired or rehabilitated sufficiently to meet required minimum construction standards, the existing structure is demolished and replaced with a newly constructed home built on the same site. Reconstructed homes must comply with 2009 International Residential Code (IRC) standards. The homeowner will be required to make arrangements for relocation while the reconstruction takes place. Home Improvement assistance will only be provided to cover the cost of rehabilitation /reconstruction necessary to bring the property in compliance with locally adopted, written building and property standards, Rehabilitation /reconstruction Program standards and, applicable Federal and State building and property standards. 3. WRITTEN AGREEMENT PROVISIONS Homeowner will enter into a written agreement with the Homeowner - selected, qualified Contractor for the completion of rehabilitation /reconstruction work. The written agreement shall include the scope of work, the cost of Appendix 3 Page 22 the work to be completed, and the time frame during which the scope of work must be completed, all of which have been reviewed and approved by Homeowner, City, and Contractor at the preconstruction conference. 4. DEFAULT ON CONTRACT OR SALE OF PROPERTY If the homeowner defaults on their contract, the lien will be called due in full, and referred to the City of Denton's Legal Department to begin acceleration of the note as allowed by law. The City will make every effort to work with the homeowner to avoid foreclosure and will examine each situation on a case -by -case basis. Examples of loan default include, but are not limited to: 1. Delinquent loan payments; 2. Failure of grantee to reside in the assisted dwelling unit as the principal residence of applicant; 3. Failure to maintain adequate homeowner insurance coverage; 4. Failure to pay property taxes when due; and 5. Failure to pay utility bills when due. SALE OF PROPERTY: In the event the homeowner sells the property prior to maturity of the note, the sum of the unpaid balance of the loan and the unforgiven balance of the deferred loan amount will become due immediately. Under no circumstance will assistance be provided to grantee on any future property purchased. For more details and information, please refer to Home Improvement Program Guidelines, By signing below, Homeowner acknowledges receipt of this document and understanding of its contents. Name, Homeowner Date Alma Espino, Housing Programs Manager, City of Denton Date Appendix 3 Page 23 APPENDIX 4 TEMPORARY REHOUSING QUESTIONNAIRE AND AGREEMENT Your participation for optional reconstruction assistance is voluntary. Reconstruction funds are limited therefore; the Program does not cover costs necessary for household to relocate during reconstruction of the property. Please complete the following questionnaire. This information will help our staff in determining if you will be eligible for optional reconstruction assistance. 1. I understand that costs will begin to incur that may include but are not limited to filing, platting, re- platting, title search, property surveys and other costs deemed necessary. I understand I will be responsible for these costs, even though project may or may not be completed. Yes No 2. 1 understand that it is my responsibility to relocate my household, before the reconstruction and after the reconstruction is completed, and that I am responsible for all costs involved to do so. I also understand that I must vacate permanently the currently occupied substandard dwelling within 10 days notice by the City. Yes No 3. 1 understand that as a result of reconstruction, my appraised property value, set by the Denton Central Appraisal, may increase significantly from the amount at which it is currently valued. Yes No 4. 1 understand that an increase in my property value may cause my property taxes to increase by a significant amount. I am financially prepared to meet any increase. Yes No 5. 1 understand that I am obligated to carry homeowner's insurance for the duration of the lien (20 years) that the City of Denton will have on my property. I understand that I must request that my insurance company list the City of Denton as a "Certificate Holder" on my policy. Yes No 6. 1 understand that my homeowner insurance premium will most likely increase as a result of the reconstruction. I am aware that my insurance policy must cover the after - reconstruction appraised value of my property. I am financially prepared to meet this increase. Yes No 7. 1 understand that I must take possession and occupy the replacement dwelling when the reconstruction is completed and the City determines it to be ready for occupancy. I understand that I may be required to resign contracts. Yes No 8. 1 understand that The City of Denton is limited in the amount of funds it can spend to reconstruct a property. I have been briefed on these limits and understand that my eligibility for optional reconstruction assistance will be granted only if it is determined that the total of all costs involved to reconstruct my property will be at or below the allowable program limit, Yes No This APPLICATION was completed by (Name) on (Date). By signing below, I am requesting that the City of Denton Community Development Division accept this as my application to be considered for optional reconstruction assistance. S Applicant's Signature Appendix 4 Page 24 Date APPENDIX 5 SPACE & AMENITY ALLOWANCES FOR RECONSTRUCTION ACTIVITIES The City of Denton may provide replacement single - family modest, safe, energy- efficient, decent dwellings. An EnergyStar® qualified home. Space and room limits for replacement housing are determined by household need. Replacement housing will provide up to the following: Provided Space 1 Kitchen 1 Dining Area or Kitchenette 1 Laundry Alcove 1 Food Pantry Closet and /or Cabinet 1 Coat Closet 1 Linen Closet 1 Living Area 2 -3 Bedrooms * ** W /Closets ** 1 or 2 Bathrooms* 1 Attached (Non- Conditioned) Storage Area Maximum Square F 2 Bedrooms 1 bath 2 Bedrooms 2 baths 3 Bedrooms 1 bath 3 Bedrooms 2 baths 4 Bedrooms 2 baths Amenities eet Allowed (Within 5 % +/ -) -1000 SF - 1080SF -1150 SF -1200 SF -1250 SF ( ** *must be approved) 1 Brick Mailbox 1 HVAC Unit (16 -Seer AC) 1 Front Entry Door 150 gallon Water Heater 2 -Car Driveway Space Programmable Thermostat 1 Energy Star Refrigerator WUNIM STAR@ Conilm -ed with standard homes, ENERGYSIAR qualified hontes use substantially less energy for heating, cooling, and water heating - delivering in annual savings. 1 Ceiling fan per bedroom and 1 in Living Room 1 Front & 1 Rear Exterior Weatherproof Electrical Outlets 1 Rear or Side Entry Door 1 Front, 1 side& 1 Rear Hose Bibb 1 Attic Access Stairs Standard lighting including exterior safety lights front and back 14 burner Gas or Electric Range /single Oven (appliances if needed) Flooring: Owner chooses combination and placement of Carpet/Pad, Sheet Vinyl or Tile Vinyl Flooring - maximum of one carpet and one vinyl choice per house. Grass: Sod will be installed at a minimum of 5' wide around entire foundation /perimeter, 3' wide around sidewalks and driveway. Season - appropriate seed will be spread on remainder of un -sod yard. *Bathroom: A full bathroom may be made accessible to accommodate physically handicapped household member(s). Household may also select a 112 or 3/4 bath in place of a second full bath, if desired. * *Clothes closets will ideally, when possible, provide a minimum of 4'X 2' of space per bedroom. ** *Determining Maximum Number of Bedrooms from household makeup: A household may select up to a 3 bedroom 2 bathroom house based on need. A fourth bedroom may be requested in writing when a household believes there is a valid need for the additional space. The Community Development Administrator approves requests on a case -by -case basis. Under no circumstances will this program provide space exceeding that described above. Appendix 5 Page 25 Appendix 6 tCITY DENTON Lead -Based Paint Hazard Control Policy & Procedure The purpose of this Policy & Procedure is to provide guidance during rehabilitation of properties when lead -based paint has been identified as a hazard in homes occupied by low and moderate income families with children less than 72 months (six years) of age. The policy /procedure establishes standards, project timelines, etc., for eligible households receiving lead hazard control work through the Home Improvement Program. This policy and procedure also provides a mechanism for obtaining agreement for and approval of temporary relocation provisions. Please read the information in this policy /procedure in its entirety. If you agree with the information established for this project as outlined below, please sign and date the last page of this document and return it to the Community Development Division. Should you have any questions or concerns regarding this policy, please feel free to call (940) 349 -7726 and schedule an appointment with staff. General Policies The following are general policies; • Only properties that were built before 1978, occupied by families that are approved to participate in the Home Improvement Program and have children under 72 months of age are eligible for LHCG funds (when available). Lead hazards will be completed using Federal CDBG and HOME funds when LHCG funds are not available. • Pre - hazard blood lead level testing for every child less than 72 months of age within 6 months prior to the start of rehabilitation/lead remediation work is required. Blood lead testing must be completed by a qualified medical agency. The child's Blood Lead test results do not need to be provided, but documentation from the qualified medical agency must be provided documenting the child(ren) has been tested. • Funds for temporary relocation during project lead hazard control work are not provided. Since the owner occupied rehabilitation programs are entirely voluntary, the Uniform Relocation Act does not apply. (Relocation requirements during lead hazard control work for elderly households may be waived by owners when no children live in or regularly visit the property). • All back up documentation in individual project files and available for review on request. The files need to be maintained for the term of the loan. Environmental Requirements: Must comply with and meet all lead based paint regulations. Lead -based paint hazard reduction techniques will be used when lead -based paint exceeds HUD's acceptable limits for lead content in Appendix 6 Page 26 existing paint. The limits for lead content exceed HUD's limits when lead content exceeds 1 mg per cm2 (one milligram per centimeter squared), or 5000 ppm (parts per million). The reduction techniques used by this program are described and found in the U. S. Department of Housing & Urban Development's publication, Guidelines for the Evaluation and Control of Lead -Based Paint Hazards in Housing, issued June 1999 Inspection, Risk Assessment Testing, and Clearance Procedures: All lead hazard evaluations will be conducted by risk assessors. Risk assessments may be conducted either by staff or contracted through qualifying firms. Clearance tests for projects may be conducted by clearance sampling technicians. All lead hazard control methods will fall into the category of interim controls although some activity may in fact permanently remove lead hazards. Rehabilitation Specialists will use professional judgment and expertise in determining appropriate methods to address deficient conditions based on recommendations from the risk assessment. Homeowner Protection: The Home Improvement Program requires that an Homeowner Protection Plan, includes all household members, must be in effect before lead hazard control work can commence. Safety is given first priority in determining these plans. Homeowner protection is mandatory and designed to protect homeowner(s), members of the household, pets and personal belongings during lead hazard control work. The attached Homeowner Protection Plan is specific to your lead hazard control project and was developed based on the scope of work to be completed. This Plan assures safe housing is available to the homeowner. These plans are the final decision and responsibility of the Lead Abatement Project Designer. By signing and dating the Home Improvement Relocation Approval page, you will be agreeing to the Homeowner Protection Plan that is a part of this document: Project Start Date: Once the homeowner(s) has selected a contractor a Project Start Date must be established. This date is determined through a cooperative effort and agreed upon by the contractor, homeowner(s) and Community Development staff. The three factors that must be considered to set a Project Start Date are: First: The date the contractor can actually begin the project. Contractor is to include time needed to meet the Three -day Right of Rescission requirement as well as any time needed to prepare for the project such as, ordering materials needed that must be available on the date the LHC work actually begins (windows, doors, etc.). Second: The date the homeowner(s) has prepared for all requirements of the Temporary Relocation Plans (as written above). This date must take into account all arrangements needed to be made by owner (such as hotel reservations, packing, storage, if required, and any other arrangements that must be made prior to the work beginning). Third: The date City of Denton staff can have contracts ready for signing (including a date all parties required to sign contracts will be available to sign) All parties must give priority to reaching an acceptable Project Start Date. Once a Project Start Date has been established, all parties will be notified of. Appendix 6 Page 27 Project Completion Date: The amount of time needed to complete a project is decided on a project -by- project basis but usually fluctuates from between two days and two weeks. The contractor is required to provide a set project completion date (or, provide the number of consecutive working days the project will take to complete). The Lead Abatement Project Designer must approve this timeline. The Project Completion Date will become part of the project contracts. Clearance Testing Requirement: Before homeowner(s) can return to the property, the property must pass: 1.) visual inspection; 2.) dust wipe; and 3.) soil clearance tests. If clearance is not achieved on first testing results, the relocation process must be prolonged to allow contractor time to achieve clearance levels (put the levels here). Reaching clearance is the responsibility of the contractor; therefore, any additional time required to meet clearance is the contractor's responsibility. If the Project Completion Date must be extended because of a failed clearance test, liquidated damages will be enforced for every day homeowner(s) cannot return to the property. The contractor will also be responsible for lab fees, if retesting is required, and the cost of these fees will be deducted from the contract amount. Homeowner(s) will not be permitted to enter the worksite once the project has started for the duration of the hazard reduction activities until such a time that clearance testing has passed all requirements. Moving and Storage: Funds for temporary relocation during project rehabilitation/reconstruction are not provided. In most cases, household goods will not have to be moved. In the event the Lead Abatement Project Designer determines that some or all furniture and household goods must be moved out of the property, the Home Improvement Program will notify homeowner(s). If furniture needs to be moved: The homeowner(s) will be notified by Home Improvement Program of the areas where work will be conducted. These areas will need to be readily available to the contractor to begin working. If furniture needs to be moved, closets emptied, shelves cleared etc., it is the responsibility of the homeowner(s) to relocate their possessions to assist the contractors timely and efficient work schedule. The homeowner(s) is responsible for packing and storing valuable possessions. Neither the contractor nor the City of Denton is responsible for missing or damaged property that has not been properly packed and stored by the homeowner(s). It is advisable that homeowner(s) make a checklist of all valuables stored. Steps for relocating a family: 1. A draft of relocation plan will be made by the Home Improvement Program. Contractor will submit plan of work schedule stressing all exterior work to be completed. 2. Home Improvement Program informs homeowner(s) of abatement commencement, preferably 10 days before. 3. Home Improvement Program starts paperwork and will advise and consult regarding extended period of relocation. 4. Home Improvement Program will inform or provide the family with: a. Information of time span required for the relocation. Appendix 6 Page 28 b. Everything they should take that they will need for the maximum number of days they will be relocated. c. All pets should be relocated or boarded. 7. Homeowner(s) will be made responsible for insuring that all household members are relocated during lead hazard control work and the house be made available to begin project. Homeowner(s) will provide keys to the contractor. 8. Home Improvement Program will inform Homeowner(s) of final clearance. If house does not pass clearance, then Home Improvement Program will inform property homeowner(s). Appendix 6 Page 29 Home Improvement Program Lead -Based Paint Hazard Control Homeowner Protection Plan Includes all household members / pets / household goods and belongings Homeowner(s) N Project Address: Homeowner Pet Protection (If Applicable): Personal Belongings/Household Goods Other Instructions required for this project: Signed: Lead Abatement Project Designer Name 1.) Contract Signing Date: 2.) Project Start Date: 3.) Project Completion Date: Date Plan Developed NOTE One: If for any reason any of the dates established above cannot be met after they have been agreed upon, the party responsible for providing that date must notify a Home Improvement Program staff immediately to provide an alternate date. This action may cause further delays. All other parties will be notified if the established date must be changed and must agree to a new date. Appendix 6 Page 30 Home Improvement Program Project Relocation Plan Approval Date Policy/Procedure Received: Project Address: Homeowner Name(s): Homeowner Address: city State: Zip: Homeowner Phone: Contractor : City State: Zip: Contractor Address: Contractor Phone: By my /our signature(s) below, I /we acknowledge and agree to the terms as written in the Lead -Based Paint Hazard Control Policy & Procedure and the Homeowner Protection Plan. I /We understand that it is my responsibility to approve specifications; review the bids and select a contractor (subject to Home Improvement Program approval), to sign the construction contracts and change orders, and to approve the payouts. Homeowner Signature Date Homeowner Signature Community Development staff Signature City of Denton Community Development Division 601 E. Hickory, Suite B Denton, TX 76205 (940) 349 -7726 Appendix 6 Page 31 Homeowner Signature Date Date Project Relocation Plan Approval Page 2 Steps for relocating a family: A draft of relocation plan will be made by the Home Improvement Program. Contractor will submit plan of work schedule stressing all exterior work to be completed. 2. Home Improvement Program informs property homeowner(s) of abatement commencement, preferably 10 days before. Home Improvement Program starts paperwork and will advise and consult regarding extended period of relocation. 4. Home Improvement Program will inform or provide the family with: a. Information of time span required for the relocation. b. Everything they should take that they will need for the maximum number of days they will be relocated. G. All pets should be relocated or boarded. Homeowner(s) will be made responsible for insuring that all household members, pets and belongings are protected during lead hazard control work by complying with the "Homeowner Protection and Project Relocation Plans" and agree to make the house available to contractor to begin project. Homeowner(s) will provide keys, as required, to the contractor. Home Improvement Program will inform Homeowner(s) of final clearance. If house does not pass clearance, then Home Improvement Program will inform property homeowner(s). Appendix 6 Page 32 City of Denton Community Development Home Improvement Program 601 E. Hickory, suite B, Denton, TX 76205 HOMEOWNER'S SERVICE AGREEMENT I /we, (Owner Name), hereinafter referred to as Owner, have applied for assistance from the Home Improvement Program to complete a rehab and will include lead hazard reduction and controls on my property. If this assistance is granted, I understand that the Home Improvement Program will be inspecting my property, acting as Home Improvement Program's technical agent and monitor of the lead hazard control project for the property, which is located at Property Address. Owner's Responsibilities I understand that even though Home Improvement Program provides a deferred loan *, it is my responsibility to approve specifications; review the bids and select a contractor (subject to Home Improvement Program approval), to sign the construction contracts and change orders, and to approve the payouts. I acknowledge that I have been advised that I should inspect the work as frequently as possible, and discuss with the contractor, or Home Improvement Program personnel any difficulties or poor workmanship observed. I understand that once materials are in place that cost of repair or replacement is substantial. Owner Protection and Temporary Relocation During Lead Hazard Reduction In most jobs that require lead hazard reduction, our agency requires appropriate actions to be taken to protect owners) and all members of the household from lead -based paint hazards. In those cases, owners) or no member of the household may not enter the worksite during the lead hazard reduction activities. Re -entry is permitted only after such activities are completed and the unit has passed a clearance examination. Owners of the unit, do not have to be relocated if: rehab work will not disturb lead -based paint or create lead - contaminated dust; hazard reduction activities can be completed within one 8 hour daytime period and the worksite is contained to prevent safety, health or environmental hazards; exterior -only work is being performed where the windows, doors, ventilation intakes and other openings near the worksite are sealed during hazard reduction activities and cleaned afterward, allowing for a lead free entry to be maintained; hazard reduction activities will be completed within 5 calendar days and the work area is sealed, the area within 10 feet of the containment area is cleaned each day, owner(s) or members of the household have safe access to sleeping areas, bathroom and kitchen facilities in the same housing unit or in another convenient location; and owner(s)or members of the household are notpermitted into the worksites until after clearance has been achieved. If occupied units are to undergo more extensive lead hazard reduction activities, the owners) or members of the household must be temporarily relocated. Most often, furniture and owner's or members of the household's belongings can be covered and sealed with protective plastic sheeting, although storage of major furniture and removal of all small furnishings during the hazardous materials reduction work may sometimes be necessary. The owner(s) is responsible for carefully packing all breakables; removing all clothing from closets, etc. During the hazard reduction work, only workers trained in lead hazard reduction may enter the work site. This means that owner(s) and members of the household are not permitted to return to the work site during the day or at night. If you have special needs to re -enter the site, please contact your rehab specialist. Only when the unit has been cleaned to the federally- mandated standards and passed a clearance examination is it safe and permissible to return to your home. The rehab specialist will note you with an Authorization for Re- Occupancy. Sometimes the jobs are completed in stages, with the lead hazard reduction work occurring first and the other renovation work following. In these cases interim dust lead clearance must be obtained prior to re- occupancy by the owner(s) or members of the household and other non -lead related rehabilitation workers. Final lead dust clearance must be repeated following the rehabilitation work to verify that the residence is free of lead hazards. (Note: HUD has advised that relocation of elderly owners is not typically required, so long as complete disclosure of the nature of the work is provided and informed consent of the elderly owner(s) is obtained before commencement of the work.) Home Improvement Program's Role A. I understand that Home Improvement Program provides work -in- progress inspections to me for their protection. However, these services are not a guarantee of any type, and do not make Home Improvement Program responsible for the quality of the work, or responsible for any contractor or worker's performance. Appendix 6 Page 33 C. I understand that the staff of Home Improvement Program cannot be personally available for all inspections of each segment of the work performed on the construction site and that both Home Improvement Program and its employees, members, officers, and directors will reasonably rely on the competence and skill of each individual contractor as is normal in the course of such business negotiations, transactions, and execution of the contract. Home Improvement Program's Emergency Authority I authorize the staff of Home Improvement Program to issue emergency orders and /or instructions in the event that the Residential Construction Specialist is available to observe the work in progress, and can anticipate that without authority to issue such instructions, work will be done which will substantially alter the intentions of the homeowner(s), injure the property or violate the specifications of the contact. Upon the issuance of such orders or instructions, Home Improvement Program's Residential Construction Specialist will contact the general contractor or subcontractor most directly responsible for the work in question and the homeowner(s) as quickly as possible, and all parties will examine and approve or re- negotiate the work in question before the job proceeds. General Provisions A. I further agree to hold harmless and indemnify Home Improvement Program and its employees, members, officers, and directors, in connection with acts performed by them which would reasonably be associated with consultation, technical advice, financial counseling, loan processing, property inspections, and other related activities. B. I authorize the staff of Home Improvement Program to obtain or provide specific reports, such as personal credit reports, property title and tax searches, building code inspection reports, property appraisals, repair specifications, cost estimates, contractors bids (and such other reports which said staff deems necessary to perform its functions). C. Whenever the pronouns "I," "my," "we" are used in this agreement they shall mean "we," "our," and "us" respectively, if more than one owner signs below. Homeowner's Signature Homeowner's Signature Appendix 6 Page 34 Date Date COMMUNITY DEVELOPMENT DIVISION (940) 349 -7726 Texas State Relay (telephone device for the deaf) by calling: TDD (800) 735 -2989 Applicant is subject to all guidelines changes. www.cityofdenton.com ADA/EOE /ADEA EQUAL HOUSING OPPORTUNITY Corr se i'0 Xeu.A AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Parks and Recreation ACM: John Cabrales, Jr. SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of performing music and announcements during the 25th Annual Holiday Lighting Festival to be held at the Denton Downtown Square. The Festival will begin at 5 p.m. and end at 9:30 p.m. on Friday, December 6, 2013. The request is for a variance in decibels, from 70 to 75, for amplified sound. Staff recommends approval of the request. BACKGROUND The Holiday Lighting Festival has been held on the Downtown Square for 25 years and will kick off the holiday season with the lighting of the community tree, a Wassel- tasting contest, live music, dancers, arts and crafts, carriage rides, a variety of foods, and a community toy drive. PRIOR ACTION/REVIEW (Council, Boards or Commission) No prior action has been taken and this is the first time the Holiday Lighting Committee has requested a noise exception. RECOMMENDATION Staff recommends approval of the request for an exception to the noise ordinance. EXHIBIT Letter of Request Respectfully submitted: A, OV4��' Emerson Vorel Director of Parks and Recreation Prepared by: Janie McLeod Community Events Coordinator September 4, 2013 Janie McLeod, Community Events Coordinator City of Denton 601 E. Hickory, Suite B Denton, TX 76201 RE: Sound Variance for Denton Holiday Lighting on the Square Dear Ms. McLeod, On December 6, 2013 the Denton Holiday Festival Association will be hosting Holiday Lighting on the Square. This family friendly event features live music from 8pm to 9:30pm. We respectfully request the city to approve a variance to the sound ordinance for that evening to the 75dB level. Thank you for your consideration, Micah Pazoureck Chair Denton Holiday Festival Association PO Box 2765 Denton, Texas 76202 www.dentonholidaylighting.com AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Economic Development ACM: John Cabrales, Jr. SUBJECT Consider adoption of an ordinance approving an agreement between the City of Denton, Texas, and the Denton Chamber of Commerce regarding an Economic Development Partnership; and providing an effective date ($227,467). BACKGROUND The City Council and the Denton Chamber of Commerce first entered into an economic development partnership agreement in 1986. The attached contract represents the 2013 -14 annual agreement and funding for the Denton Chamber of Commerce Economic Development program. The City's participation consists of General Fund and Utility Fund dollars and provides for the administration and operation budget of the Chamber of Commerce that includes: • Prospect generation activities • Marketing activities, i.e. trade shows, publishing /printing, website(s) administration, marketing materials • Economic Development Partnership Board support • Small Business Development Center support The Chamber will work closely with the Denton Enterprise Airport on branding and marketing efforts, which will be funded directly from the Airport's budget. In addition to City funds, the Chamber of Commerce solicits private sector funding to enhance marketing and allies development efforts. The contract with the Chamber has been amended from previous years with the following significant changes: • The creation of Marketing and Recruitment Teams to facilitate a cohesive economic development effort that encompasses the objectives of the City, the Chamber, and other stakeholders including Denton Municipal Electric, Denton Enterprise Airport, private investors, Denton Independent School District, University of North Texas, Texas Woman's University, North Central Texas College, and others as appropriate. • The sharing of lead and prospect information as appropriate in order to facilitate the most comprehensive and effective prospect proposals possible • Quarterly financial reporting to the Economic Development Partnership Board PRIOR ACTION/REVIEW The Economic Development Partnership Board reviewed the $227,467 budget and work plan for the 2013 -14 fiscal year at their August 28, 2013 meeting and recommended approval (8 -0). The Denton City Council adopted the FY 2012 -2013 Chamber of Commerce Agreement (Ordinance 2012 -196) on September 11, 2012. Chamber Agreement Agenda Information Sheet October 15, 2013 Page 2 FISCAL INFORMATION The proposed contract provides for a total City contribution of $227,467, to be funded as follows: General Fund - $62,628 and Utility Fund - $164,839. Respectfully submitted: 0, oil Aimee Bissett, Director Economic Development Department -2- s: Aeg a kour docuiiiejits\t)idiiiaticcs\13\fitiaI ordinance chamber contract. d ocx ORDINANCE NO. AN ORDINANCE APPROVING AN AGREEMENJ .'BETWEEN THE CITY OF DENTON, TEXAS, AND THE DENTON CHAMBI-.,R OF COMMERCE REGARDING AN ECONOMIC DEVELOPMENT PAR TNERSHIP; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton deems it is in the public interest and serves a municipal and public purpose to enter into an agreement with the Denton Chamber of Commerce for the purpose of providing for a program to promote economic development through the joint effort of the parties hereto; NOW, TI IEREFORE; THE COUNCIL OF" "THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. City Council finds that the Agreement between the City of Denton and the Denton Chamber of Commerce serves a valid municipal and public purpose and is in the public interest. SECTION 2. The Agreement between the City of Denton and the Denton Chamber of Commerce attached hereto and made a part hereof by reference (the "Agreement") is hereby approved. The Mayor, or in his absence, the Mayor Pro Tem, is hereby authorized to execute the Agreement on behalf of the City of Denton, The City Manager is hereby authorized to carry out the City's rights and duties under the Agreement including authorization for the expenditure of funds provided for in the Agreement. SECTION 3. This Ordinance shall become effective passage and approval. upon its PASSED AND APPROVED this the 1 111 day of 2013. MARK A. BURROIJGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: T- ECONOMIC DEVELOPMENT PROD RAMAGREEMENT BETWEEN 'I CITY OF DENTON AND THE DENTON CHAM13ER OF COMMERCE This Agreement is made between the City of Denton, Texas, ("City") and the Denton Chamber of Commerce ("Chamber") for the purpose of providing for a program to promote economic development through the joint effort of the parties hereto, who in consideration of' their mutual promises, agree as follows: 1. Chamber Office of Economic Development ("Office"). During the term of this Agreement, the Chamber shall maintain in Office of Economic Development managed by the Vice President of' Economic Development, who shall perform the duties of the office. 2. Duties of the Office. The Chamber of Commerce shall: a. Develop and maintain positive relationships with key economic development allies, including but not limited to, private sector investors, the Governor's Office of Economic Development, Dallas Regional Chamber, and national, regional and local real estate brokers and land developers. b. Maintain memberships and involvement in economic development organizations, such as the International Economic Development Council and Texas Economic Development Council. e, Work in cooperation with the Director of Economic Development for the City of Denton to appoint a Marketing Team that will evaluate existing marketing efforts, establish and/or amend a Marketing Plan, and produce branding and marketing materials to promote Denton; through a collaborative effort with economic development stakeholders, including Denton Enterprise Airport, Denton Municipal Electric, University of North Texas, 'I", exas Woman's University, North Central Texas College, Denton Independent School District. . private Chamber investors, and others as appropriate. Such Marketing Plan will be compiled by the Marketing Team, which will be coordinated by the Vice President of Economic Development at the Chamber of Commerce and the Director of' Economic Development with the City of Denton. The plan will be presented to the Economic Development Partnership Board by March of 2014 and will include a plan /timeline, for the placement of advertising in trade publications, the use of social media, and the upgrade of' economic development materials and websites (Dentonf,"DP.corn, DentotiSites.corn, and DentonMD.org). d. Work in cooperation with the Director of Economic Development for the City of Denton to appoint, a Recruitment Team that will identify the attributes of' desirable businesses, identify target industries, and develop recruitment strategies and a cohesive Recruitment Plan; through a collaborative effort with economic development stakeholders, including Denton Enterprise Airport, Denton Municipal Electric, University of North Texas, Texas Woman's University, North Central Texas College, Denton Independent School District, private Chamber investors, and others as appropriate. The Recruitment Plan will be compiled by the Recruitment Team, which will be coordinated by the Vice President of Economic Development at the Chamber of Commerce and the Director of Economic Development with the City of" Denton. The plan will be presented to the Economic Development Partnership Board by March of 2014 and will include strategies for recruitment, division of recruitment duties, and the identification of target industries. e. Represent Denton Economic Development and recruit prospective businesses through attendance at target market trade shows, Consultant's lbrunis, targeted business rneetings/conventions and other special events; and coordinate travel calendar and budget with the City of Denton to identify strategies to allocate staff and financial resources for a cohesive presence at events and trade shows. f. Serve as a principal point of contact for prospect communications, the production and submittal of site proposals, prospect visitation itineraries, and prospect follow-up for businesses interested in locating in Denton. Work in cooperation with the City of Denton's Economic Development I)epartrnent to facilitate prospect responses with other local allies. Share lead information with the Director of Economic Development for the City of Denton on a frequent basis during regular partnership meetings, and with other members of" the Recruitment Team as appropriate in order to compile the most comprehensive site proposals possible utilizing all resources available. As appropriate, Page 2 share electronic copies of site proposals with Marketing and/or Recruitment 'fear for feedback and suggestions regarding strategy and content. g. In conjunction with the City of Denton's Economic Development Department, develop and maintain positive relationships with Denton businesses through a business retention and expansion program. h. Work closely with the City of Denton Office of Economic Development in the development of programs and policies to enhance economic development, including but not limited to incentives, business retention and expansion visits, retail recruitment, strategic planning and other areas of mutual interest. L Work in coordination with the Director of Economic Development for the City of Denton to carry Out objectives for the year, including the development of a "shovel- ready" sites program, workforce development strategies, and the development of a Strategic Plan. Work in cooperation with the City of Denton to identify performance measures for economic development annual work plan and objectives. j. Prepare and obtain approval of' the annual work plan and budget from the Economic Development Partnership Board, Provide the Board with monthly activity reports. On a quarterly basis, include performance measures and accomplishments, and financial reports that include expenses by category and budget-to-actual figures. J, lie financial report will be reviewed and approved quarterly by the Economic I)evelopment Partnership Board. 3. Support Services and Funding. The Chamber shall provide the office space, equipment and support staff necessary to the operations of the Chamber Office of Economic Development. For the fiscal year 2013-2014, the Chamber shall solicit and contribute private sector funds in the amount of $63,700, and the City shall provide funding in the amount of $227,467, which may be funded from the General Fund, the Utility Fund, or some combination thereof. The balance of' any unused City funds shall be returned to the City at the end of the fiscal year. Any funds provided by the City pursuant to this Agreement shall be retained in an account separate and segregated from the Chamber's general operating fund and shall only be used for the purpose provided for in this Agreement. The Chamber and the Office shall keep current and Page 3 accurate records of all funds received and expended, which shall be subJect to inspection and audit by the City at all reasonable times. All such financial records shall be subject to the Texas Public Information Act, Tex. Gov't Code Ch. 551 4. Status of Office. The Chamber Office of Economic Development shall be under the direct supervision and control of the Chamber and all personnel of the Office shall be considered employees or agents of the Chamber. The Chamber shall be responsible for the processing of all benefits or payment of liabilities of such employees or agents, including the withholding or payment of personal income or social security taxes, as provided by applicable law, and the payment of worker's compensation premiums. The Chamber shall maintain policies of insurance in the minimum amounts required by law to protect against liability arising from the operation of any vehicles used by employees of the Office and the Chamber agrees to defend against, and indemnify and hold the City, its elected officials, officers, agents, employees and representatives harmless from any claim arising from any negligent act of such employees. 5, Term of Agreement. This Agreement shall be effective from October 15, 2013 through September 30, 2014. Either party may terminate this Agreement by giving written notice to the other party with thirty (30) days advance notice, in which case any unexpended funds provided by the City shall be returned to the City. EXECu,rED this the day of 2013 CITY OF DENTON MARK A. BURROUGHS, MAYOR Page 4 ATTEST: JENNIFER WALTERS, CITY Sl:"(.,.Rl,.,,'I-ARY m APPROVED AS TO LEGAL FORM: ANITA BLJRGI-l'SS, CITY AT,rORNEY BY: mr Dl:.N TON CHAMBER OF(.',OMMIl'RCE Page 5 Coit�sei�,.0 .nru..Aa AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Engineering Services ACM: Jon Fortune SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, authorizing the City Manager, or his designee, to execute a Purchase Agreement (herein so called), as attached hereto and made a part hereof as Exhibit "A" by and between the City of Denton (the "City "), and Harlan Properties, Inc. (the "Seller") contemplating the sale by Seller and purchase by City of (1) fee simple to a 4.69 acre tract; (I1) a utility and slope easement encumbering 0.56 acre; and (II1) a utility and drainage easement encumbering 0.02 acre, said tracts located generally in the 2400 block of South Bonnie Brae Street, in the A. Tompkins Survey, Abstract Number 1246, in the City of Denton, Denton County, Texas (the "Property Interests ") for the purchase price of Two Hundred Thousand Dollars and No Cents ($200,000.00); authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the Purchase Agreement; authorizing the expenditure of funds therefor; and providing and effective date. (Bonnie Brae Street Widening and Improvements Project — Parcel 25) BACKGROUND The City Council considered and approved (1) an offer (October 16, 2012) pursuant to Ordinance No. 2012 -292 to purchase the captioned land rights; and (2) a final offer (February 5, 2013) pursuant to Ordinance No. 2013 -039 to purchase the captioned land rights; and (3) a finding to initiate eminent domain proceeding pursuant to Ordinance No. 2013 -184 (July 16, 2103) to acquire the captioned land rights. The Owner has recently provided staff a counter -offer containing the captioned purchase amount, as final settlement of the matter. Approval of the ordinance under consideration authorizes staff to proceed to closing the purchase transaction with the property owner. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. Agenda Information Sheet October 15, 2013 Page 2 PRIOR ACTION/REVIEW (Council, Boards, Commissions) October 16, 2012 (Offer to Purchase Ordinance 2012 -292) February 5, 2013 (Final Offer to Purchase Ordinance 2013 -039) July 16, 2013 (Eminent Domain Ordinance 2013 -184) FISCAL INFORMATION The overall Bonnie Brae Street Widening and Improvements project is being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRIP `08) funds and City of Denton local match funds. The purchase price of $200,000.00 plus closing costs, as prescribed in the Agreement are to be funded through a combination of these funding sources. BID INFORMATION Not applicable EXHIBITS 1. Location Map 2. Ordinance Respectfully submitted, Paul Williamson, Real Estate Manager Location Map HARLAN — P25 EXHIBIT 1 Attachment to AIS Bonnie Brae Widening and Improvements LL W co WI LLOWWOOD M WILLOW a Q) N m d00-I LAUREL � w Q z Q w __j o cn w Q z D Q Q Q Harlan U _ Property Location HIGHLAND PARK RD OLAR WAY o � o� C,. 0 GOOD CORBIN ROAD a � m a o m CIO 0 0 M ROSELAWN DRIVE z ROSELAWN MEMORIAL Location Map HARLAN — P25 EXHIBIT 1 Attachment to AIS Bonnie Brae Widening and Improvements sAlegal\ our documents \ordinances \13 \harlan contract of sale.doc EXHIBIT 2 attachment to AIS ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A PURCHASE AGREEMENT (HEREIN SO CALLED), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A ", BY AND BETWEEN THE CITY OF DENTON (THE "CITY "), AND HARLAN PROPERTIES, INC. (THE "SELLER ") CONTEMPLATING THE SALE BY SELLER AND PURCHASE BY CITY OF (I) FEE SIMPLE TO A 4.69 ACRE TRACT; (II) A UTILITY AND SLOPE EASEMENT ENCUMBERING 0.56 ACRE; AND (III) A UTILITY AND DRAINAGE EASEMENT ENCUMBERING A 0.02 ACRE, SAID TRACTS LOCATED GENERALLY IN THE 2400 BLOCK OF SOUTH BONNIE BRAE STREET, IN THE A. TOMPKINS SURVEY, ABSTRACT NUMBER 1246, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS (THE "PROPERTY INTERESTS ") FOR THE PURCHASE PRICE OF TWO HUNDRED THOUSAND DOLLARS AND NO CENTS ($200,000.00); AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE AND DELIVER ANY AND ALL OTHER DOCUMENTS NECESSARY TO ACCOMPLISH CLOSING OF THE TRANSACTION CONTEMPLATED BY THE PURCHASE AGREEMENT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AND EFFECTIVE DATE. WHEREAS, the City of Denton made an offer to the Owner to purchase the Property Interests on October 26, 2012, pursuant to Ordinance No. 2012 -292, passed and approved by the City Council of the City of Denton on October 16, 2012; WHEREAS, the City of Denton made a final offer to the Owner to purchase the Property Interests on February 20, 2013, pursuant to Ordinance No. 2013 -039, passed and approved by the City Council of the City of Denton on February 5, 2013; WHEREAS, the City of Denton, pursuant to Ordinance No. 2013 -184, passed and approved by the City Council of the City of Denton on July 16, 2013, found that a public use and necessity exists to widen and improve Bonnie Brae Street to serve the citizens of the City of Denton, Texas and that the public welfare and convenience required the acquisition of the Property Interests by exercise of its home -rule and statutory authority of eminent domain; WHEREAS, Seller has made a counteroffer to the offers of the City; WHEREAS, City is amenable to the counteroffer, and finds that it is in the best interest to agree to same; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council finds that a public use and necessity exists, and that the public welfare and convenience require the acquisition of the Property Interests by the City. The City Council hereby finds and determines that the acquisition of the Property Interests is necessary for public use to provide street and roadway expansion and improvements to serve the public and the citizens of the City of Denton, Texas. sAiegal\ our documents \ordinances \1 Viarlan contract of saIc.doc SECTION 2. The City Manager, or his designee, is hereby authorized to (a) execute for and on behalf of the City (i) the Purchase Agreement, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $200,000.00 and other consideration, plus costs and expenses, all as prescribed in the Purchase Agreement; and (ii) any other documents necessary for closing the transaction contemplated by the Purchase Agreement; and (b) make expenditures in accordance with the terms of the Purchase Agreement. SECTION 3. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY C Page 2 EXHIBIT "A" TO ORDINANCE PURCHASE AGREEMENT NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. fp THIS PURCHASE AGREEMENT (the "Agreement ") is dated �'C��'/1 7— 15 13 201-2, but effective as of the date provided below, between Harlan Properties, Inc., a Texas corporation (the "Owner ") and the City of Denton, Texas ( "City ") WITNESSETH: WHEREAS, Harlan Properties, Inc. is the Owner of a tract of land (the "Land ") in the A. Tompkins Survey, Abstract Number 1246, being affected by the public improvement project called the Bonnie Brae Widening and Improvements Project ( "Project "); and WHEREAS, City is in need of certain (i) fee simple lands, being a pant of the Land; and (ii) easements in, along, over, upon, under and across, a portion of the Land, each related to the Project; and WHEREAS, it is desirous of both parties to stipulate and agree to the terms and conditions associated with the purchase of the necessary real property interests for the Project; NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. A. At Closing, the Owner shall grant, execute, and deliver to the City (i) a Special Warranty Deed (herein so called), conveying to the City, subject to the reservations described below, the tract of land being depicted and described in Exhibit "A ", to that certain Special Warranty Deed (the "Fee Lands "), attached hereto as Attachment 1 and made a part hereof, (ii) a Utility and Slope Easement (herein so called), in, along, upon, under, over and across the tract of land being depicted and described in Exhibit "A ", to that certain Utility and Slope Easement (the "Utility and Slope Easement Lands "), attached hereto as Attachment 2 and made a part hereof, for utility and slope purposes, as more particularly described therein; and (iii) a Utility and Drainage Easement (herein so called), in, along, upon, under, over and across the tract of land being depicted and described in Exhibit "A ", to that certain Utility and Drainage Easement (the "Utility and Drainage Easement Lands "), attached hereto as Attachment 3 and made a part hereof, for utility and drainage purposes, as more particularly described therein (the Utility and Slope Easement Lands and the Utility and Drainage Easement Lands, are collectively referred to herein as the "Easement Lands "). The (i) Special Warranty Deed shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 1 "; (ii) the Utility and Slope Easement shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 2 "; and (iii) the Utility and Drainage Easement shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 3" (the Utility and Slope Easement and the Utility and Drainage Easement, are collectively referred to herein as the "Easements ") (the Fee Lands and the Easements are collectively referred to herein as the "Property "). B. Owner, subject to the limitation of such reservation made herein, shall reserve, for itself, its successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Fee Lands. Owner, its successors and assigns, shall not have the right to use or access the surface of the Fee Lands, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Fee Lands for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Fee Lands; and (ii) all substances which are at or near the surface of the Fee Lands. The intent of the parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). 3 As used herein, the term "surface of the Fee Lands" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. 2. As consideration for the granting and conveying of the Fee Lands and the Easements to the -rW0 ,nS11T 14 4 City, the City shall pay to Owner at Closing the sum of �e Hur��l /� Thousand ( A 2604 o co. no and No /100 Dollars ($i� 9;- 163--06°). The none -tary compensation prescribed in this Section 2 is herein referred to as the "Total Monetary Compensation ". 3. The Owner shall convey and grant to the City the Fee Lands and the Easements free and clear of all debts, liens and other encumbrances (the "Encumbrances"), The Owner shall assist and support satisfaction of all closing requirements of the City in relation to solicitation of releases or subordinations of the Encumbrances and other curative efforts affecting the Fee Lands and Easements, if necessary in the discretion of the City. In the event that all Encumbrances are not cured to the satisfaction of City prior to Closing, such shall not be a default hereunder, although Owner may otherwise be in default under Section 10, below. However, if the Encumbrances are not cured as provided herein, City has the option of (i) waiving the defects related to the remaining Encumbrances by notice in writing to Owner on or prior to the Closing Date, upon which the remaining Encumbrances shall become Permitted Exceptions (herein so called), and proceed to close the transaction contemplated by this Agreement; or (ii) terminating this Agreement by notice in writing to Owner, in which latter event Owner and City shall have no further obligations under this Agreement. 4 4. Owner stipulates that the Total Monetary Compensation payment constitutes and includes all compensation due Owner by City related to the Project, including without limitation, any damage to or diminution in the value of the remainder of Owner's property caused by, incident to, or related to the Project, damage to and /or costs of repair, replacement and /or relocation of any improvements, turf, landscape, vegetation, or any other structure or facility of any kind located within the Easement Lands related to activities conducted pursuant to the Easements, interference with Owner's activities on the Easement Lands caused by or related to activities within the scope of the rights granted by the Easements, whether accruing now or hereafter, and Owner hereby releases for itself, its successors and assigns, City, it's officers, employees, elected officials, agents and contractors from and against any and all claims it may have now or in the future, related to the herein described matters, events and /or damages. 5. The Closing (herein so called) shall occur in and through the office of Universal Title Agency, LLC, d /b /a Universal Land Title of Texas, 2650 Bardin Road, Suite 101, Grand Prairie, Texas 75052 ( "Title Company "), with said Title Company acting as escrow agent, on the date which is 60 days after the Effective Date, unless the Owner and the City mutually agree, in writing, to an earlier or later date ( "Closing Date "). In the event the Closing Date, as described above, occurs on a Saturday, Sunday or Denton County holiday, the Closing Date shall be the next resulting business day. 6. The stipulated Total Monetary Compensation amount shall be paid by the City at Closing to the Owner through the Title Company. Ad valorem taxes relating to the Fee Lands for the calendar year in which Closing shall occur shall be prorated between Owner and City as of the 67 Closing Date. If the actual amount of taxes for the calendar year in which Closing shall occur is not known as of the Closing Date, the proration shall be based on the amount of taxes due and payable with respect to the Fee Lands for the preceding calendar year, and shall be readjusted in cash as soon as the amount of taxes levied against the Fee Lands for the calendar year in which Closing shall occur is known. The result of such proration is that the Owner shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to Closing) and City shall pay for those taxes attributable to the period commencing as of the Closing Date. All other typical, customary and standard closing costs associated with this transaction shall be paid specifically by the City, except for Owner's attorney's fees, if any, which shall be paid by Owner. �NI t � City 7. The date on which this Agreement is executed by the Owner shall be the "Effective Date" of this Agreement. B.A. In the event Owner shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, City may exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the remedy of specific performance. B. In the event City shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, Owner may, as its sole and exclusive remedy, either (i) terminate this Agreement prior to 9 Closing by written notice of such election to City; or (ii) enforce specific performance of this Agreement. 9. THE LAWS OF THE STATE OF TEXAS SHALL CONTROL AND APPLY TO THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT IS PERFORMABLE IN DENTON COUNTY, TEXAS. VENUE FOR ANY ACTION ARISING HEREUNDER SHALL LIE SOLELY IN THE COURTS OF COMPETENT JURISDICTION OF DENTON COUNTY, TEXAS. 10. From and after the Effective Date of this Agreement, through and including the Closing Date, Owner shall not (i) convey or lease any interest in the Fee Lands or Easement Lands; or (ii) enter into any Agreement that will be binding upon the Fee Lands or Easement Lands or upon the Owner with respect to the Fee Lands or Easement Lands after the date of Closing. 11. Any notices prescribed or allowed hereunder to Owner or City shall be in writing and shall be delivered by telephonic facsimile, hand delivery or by United States Mail, as described herein, and shall be deemed delivered and received upon the earlier to occur of (a) the date provided if hand delivered or delivered by telephonic facsimile; and (b) on the date of deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: 7 OWNER: Harlan Properties, Inc. 2404 Texas Drive, Suite 103 Irving, Texas 75062 -7011 Telephone: 972.659.0655 Telecopy: 972.659.0587 Copies to: For Owner: Telecopy: CITY: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: 940.349.8951 For City: Richard Casner, First Assistant City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: 940.3 82.7923 12. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. Time is of the essence with respect to this Agreement. 13. Owner represents and warrants to City that (i) it has corporate power to execute and perform under this Agreement; and (ii) it has taken all actions necessary to authorize the execution and delivery of this Agreement. 14. The representations, warranties, agreements and covenants contained herein shall survive the Closing and shall not merge with the Special Warranty Deed and /or Easements. L 15. In the event prior to the Closing Date, condemnation or eminent domain proceedings are threatened or initiated by any entity or party other than the City that might result in the taking of any portion of the Property, City may, at its election, terminate this Agreement at any time prior to Closing. 16. Authority to take any actions that are to be, or may be, taken by City under this Agreement, including without limitation, adjusting the Closing Date of this Agreement, are hereby delegated by City, pursuant to action by the City Council of Denton, Texas, to Frank Payne, City Engineer of City, or his designee. CITY OF DENTON, TEXAS By: WOK GEORGE C. CAMPB L, City ^L ANA� R r'ttil �� 1 y1 Date: 0 2012 � ATTEST: JENNIFER WALTE N CITY SECRETARY 2012 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: (�_ _ Date: D6 /, 4�, // , 2012 W In Date: By: Date: By:- Z_- -- -.� Date: o Owner: Harlan roperties, Inc., a Texas corporation By: Natne: SURESH SHRIDHARANI Title: Date: l ©- I -- , 2013 10 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of one (1) executed copy of this Agreement. Title Company agrees to comply with, and be bound by, the terms and provisions of this Agreement to perform its duties pursuant to the provisions of this Agreement and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Universal Title Agency, LLC d /b /a/ Universal Land Title of Texas Attn: Elizabeth Bobo 2650 Bardin Road, Suite 101 Grand Prairie, Texas 75052 Telephone: (972) 206 -7570 Telecopy: (972) 206 -2870 By: Printed Name: Title: Contract receipt date: 2012.3 11 sllegaHour documents\contracts \12Uiarlan properties special warranty deed.doc ATTACHMENT 1 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That HARLAN PROPERTIES, INC., a Texas corporation (herein called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly depicted and described on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property ") Grantor, subject to the limitation of such reservation made herein, reserves, for itself, its successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, its successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to Conveyance and Warranty: [Insert Permitted Exceptions] TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not Page 2 of 3 otherwise. EXECUTED the day of 52012. Harlan Properties, Inc., a Texas corporation By: _ Name: Title: THE STATE OF § COUNTY OF __ § This instrument was acknowledged before me on , 2012 by of Harlan Properties, Inc., a Texas corporation, on behalf of said corporation. Notary Public, State of Texas My commission expires: — Page 3 of 3 EXHIBIT A - to Special Warranty Deed PAGE i OF 5 ,SR, ti 2925 S. BONNIE BRAE ALFRED & BECKY CAMP INST. NO. 2010 -62292 D.R.D.C.T. ti 1 h i ti i NOTE: i , POINT OF BEGINNING' FND 5/8" I.R THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 D.R.D.C.T. SET 1/2" I.R. W/ GAI CAP TO BE SET AT END OF CONSTRUCTION. �I N W M Cu 1D a 0 z E SHEET 2 01 O m (D 3 O O 0 O O 0 In N89'55' 12 "W 114.64' HARLAN PROPERTIES, INC. VOL. 4704, PG, 1297 D.R.D.C.T. 1/2- I.R. GAI CAP THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 D.R,D.C.T. BASIS OF BEARING IS NORTH AMERICAN DATUM OF 1983 (NAD -83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 25 -ROW -1 BEING A 204,477 SQ.FT. /4.69 ACRE OF WHICH 6,838 SQ. FT. LIES EXISTING RIGHT -OF -WAY OF BONNIE SITUATED IN THE A. TOMPKINS ABSTRACT NO. 12460 Graham Associates,inc. DENTON COUNTY, TEXAS CONSULTING ENGINEERS S PLANNERS 600 SIX f1.A09 DRIVE, aIHTE 800 ARLINGTON, TMAS;amf an 540 -assn THPE FlRM! F- 1101/19PL.4 101036 -00 WITHIN BRAE STREET SURVEY, GRAPHIC SCALE 1' =100' 0 50 100 150 DATE: SEPTEMBER 2012 2600 S.BONNIE BRAE 2743 S. BONNIE BRAE BARBARA SEAL LOT 30, SEC 2 y � VOL.4639, PG.1209 DUSTIN & SHANTEL 1 D.R. D. C.T. BARBER SOLAR WAY ADDITION SECTION TWO 2835 S. BONNIE BRAE BARBARA SEAL �\ INST. NO. 2009 -36221 i C.R.D.C.T. COR9{C{�ROAD 1 ,SR, ti 2925 S. BONNIE BRAE ALFRED & BECKY CAMP INST. NO. 2010 -62292 D.R.D.C.T. ti 1 h i ti i NOTE: i , POINT OF BEGINNING' FND 5/8" I.R THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 D.R.D.C.T. SET 1/2" I.R. W/ GAI CAP TO BE SET AT END OF CONSTRUCTION. �I N W M Cu 1D a 0 z E SHEET 2 01 O m (D 3 O O 0 O O 0 In N89'55' 12 "W 114.64' HARLAN PROPERTIES, INC. VOL. 4704, PG, 1297 D.R.D.C.T. 1/2- I.R. GAI CAP THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 D.R,D.C.T. BASIS OF BEARING IS NORTH AMERICAN DATUM OF 1983 (NAD -83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 25 -ROW -1 BEING A 204,477 SQ.FT. /4.69 ACRE OF WHICH 6,838 SQ. FT. LIES EXISTING RIGHT -OF -WAY OF BONNIE SITUATED IN THE A. TOMPKINS ABSTRACT NO. 12460 Graham Associates,inc. DENTON COUNTY, TEXAS CONSULTING ENGINEERS S PLANNERS 600 SIX f1.A09 DRIVE, aIHTE 800 ARLINGTON, TMAS;amf an 540 -assn THPE FlRM! F- 1101/19PL.4 101036 -00 WITHIN BRAE STREET SURVEY, GRAPHIC SCALE 1' =100' 0 50 100 150 DATE: SEPTEMBER 2012 EXHIBIT A - to Special Warranty Deed PAGE 2 OF 5 204 SOLAR WAY 202 SOLAR &Y LOT 13, SEC 2 LOT 14A, SSG 2 1 ; RONALD CORNELL RONALD CORNEL,l .:, SOLAR WAY ADDITION, SOLAR WAY AODITI N, ` SECTION TWO SECTION TWO t li 2400 S. BONNIE BRAE i 6:J� LOT 14B, SEC 2 CAROLYN MORENO SOLAR WAY ADDITION, !� SECTION TWO 0." Os�iON, C�OAx P� t' ypVPgtiOKN b' cAQ :P 201 GOODSON WAY 203 GOODSON WAY LOT iS, SEC 2 LOT 16, SEC 2 MICHAEL & ELIZABETH BRADLEY & LEAH SEILER VAUGHN SOLAR WAY ADDITION, LAP WAY ADDITION, SECTION TWO SECTION TWO SEE , w 1 ti r� 00 tuN tD .,iJ-t -- -- -- GOap � i►AY - -/Jj % 2e4�~ 3: mti 04 O O N �b Cu O O Z 202 GOODSON WAY LOT 29, SEC 2 MARY SUE STEWART SOLAR WAY ADDITION, ; SECTION TWO �l �' 2673 S. BONNIE BRAE S�10N' OeNAE BICKFORD HEET\\\\)T 3 &= 10'43'36" R= 2347.50' T =220.39' L= 439.49' Cp= S05'21'48 "E Lc- 438.85' W/ 112" AI CAP HARLAN PROPERTIES, INC. VOL, 4704, PG, 1297 O.R.D.C.T. M 0A (D� dy NO 0 O 0 pD , A0 9 INST. NO. 2010 -40218 yO�P��CO0�1pG j22 \ O.R.D.C.T, \ NOTE: SET 1/2" I.R. W/ GAI CAP TO BE SET AT END OF CONSTRUCTION. SEE SHEET 1 BASIS OF1983F(NADR83) STATE RPLANE E DATUM COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 25 -ROW -1 [Inll BEING A 204,477 SQ.FT. /4.69 ACRE OF WHICH 6,838 SQ. FT. LIES WITHIN EXISTING RIGHT -OF -WAY OF BONNIE BRAE STREET SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 12461 GRAPHIC SCALE -100' Graham Associates,lnc. S CONSULTING ENGINEERS PLANNERS DENTON COUNTY, TEXAS D 5D 100 150 000 sx FLAGS MM SUITE aoo ARUM K TEXAS 76MI (817) 840 -easy DATE: SEPTEMBER 2012 TBPE FINk F- 1191/1SPIS FIRM! M&M-00 EXHIBIT A - to Special Warranty Deed PAGE 3 OF 5 2324 HIGHLAND PARK RO MILTON B. CLEARMAN 6 SPOUSE. ANITA A. CLEARMAN VOL. 4437, PG. 2213 O.R,D.C.T. r �S89''3ff'1�" 06.52. ,SET W/ G I CAP i I t —S W/ GAI CAP Z VAI"V 2216 S. BONNIE BRAE 2 cc CHRISTO HOER M, WATTS VOL. 5102, PG. 2398 r SOLAR WAY ADDITION CAB. H. PG. 4A i P.R.D.C.T. R; 2220 S' BONNIE BRAE ' LOT 3A JOHN P. OANSBY VOL. 1554, PG. 969 D.R.D,C.T. �1 201 SOLAR WAY v LOT 38• SEC 2 V MARIEL- 6'R*Y - -- ' n TAM -RAY SOLAR WAY ADDITION' - - C SECTION TWO ` I � -- rir- - -- --`- -- -------- R O.IG ------------ ��60� -------- 2324 HIGHLAND PARK RO MILTON B. CLEARMAN 6 SPOUSE. ANITA A. CLEARMAN VOL. 4437, PG. 2213 O.R,D.C.T. r �S89''3ff'1�" 06.52. ,SET W/ G I CAP %r✓ 9jC� qA9, —S34 '16' 24 "W 28.28' —S W/ GAI CAP 2 S 10 '43' 36 "E 97.31' SET / GAI CAP o� I� Y PARK AOAD-------- r -__ rl S00 '29' 42 "W 35.50' 130,00' \—SET 1/2" I.R. SET S/2' I.R. W/ GA I CAP W/ GAT CAP A= 11'13'18" R= 564.50' T= 55.46' L =110.56' Cb= 684'53'03 "W Lc= 110.38' HARLAN PROPERTIES, INC. VOL. 4704, PG. 1297 D.R.D.C.T. A= 10 '43' 36" R =2347.50' T =220.39' L =439.49' Cb =S05'21' 48 "E Lc-43B.85' PARCEL 25 -ROW -1 BEING A 204,477 SQ.FT. /4.69 ACRE OF WHICH 6,838 SQ. FT. LIES EXISTING RIGHT -OF -WAY OF BONNIE SITUATED IN THE A. TOMPKINS ABSTRACT NO. 12460 DENTON COUNTY, TEXAS Graham Associates,ine. CONSULTING ERGS PLANNERS siFA DFdVFF, SUIE 5 A"OTOH, TEXAS 76011 81 640 -0.133 TDPE FM F- 1191/rOPLS i 101536 -00 NOTE: SET 1/2" I.R. W/ GAT CAP TO BE SET AT END OF CONSTRUCTION. BASIS OF BEARING IS NORTH AMERICAN DATUM OF 1983 (NAD -83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. WITHIN BRAE STREET I �I SURVEY, n ■I GRAPHIC SCALE i' -100' 0 50 100 150 DATE: SEPTEMBER 2012 Page 4 of 5 EXHIBIT A - to Special Warranty Deed PARCEL 25-ROW -1 LEGAL DESCRIPTION Being a 4.69 acre tract of land situated in the A. Tompkins Survey, Abstract No.1246, Denton County, Texas and being a portion of a tract of land conveyed to Harlan Properties, Inc. as recorded in Volume 4704, Page 1297, Deed Records, Denton County, Texas, and being more particularly described as follows: BEGINNING at a found 5/8 inch iron rod, said point being the southwest corner of said Harlan tract, being the southeast corner of a tract of land conveyed to Alfred and Becky Camp, as recorded in Instrument No. 2010 - 62292, Deed Records, Denton County, Texas, and being in the north line a tract of land conveyed to The Chamberlain Trust, as recorded in Volume 4522, Page 1336, Deed Records, Denton County, Texas; THENCE North 00 °16'23" East, leaving said north line and along the east line of said Camp tract, a distance of 333.08 feet to a point for corner, said point being the northeast corner of said Camp tract; THENCE North 00 °24'00" West, along the west line of said Harlan tract, a distance of 689.67 feet to a point for corner, said point being in the existing east right -of -way line of Bonnie Brae Street (having a variable width R.O.W.); THENCE North 00'19'42" East, along said west line and along said existing east right - of -way line, a distance of 760.24 feet to a point for corner, said point being in the approximate centerline of Highland Park Road (having a variable width R.O.W.), and being the northwest corner of said Harlan tract; THENCE South 89 °30'18" East, leaving said existing east right -of -way line, along the north line of said Harlan tract, and along said approximate centerline, a distance of 397.54 feet to a point for corner; THENCE South 00 °29'42" West, leaving said approximate centerline, a distance of 35.50 feet to a set 1/2 inch iron rod with GAI cap for corner, said point being in the proposed south right -of -way line of Highland Park Road (having a variable width R.O.W.); THENCE North 89 °30'18" West, along said proposed south right -of -way line, a distance of 130.00 feet to a set 1/2 inch iron rod with GAI cap for corner, for the beginning of a tangent curve to the left having a radius of 564.50 feet, a central angle of 11113'18", and a long chord which bears South 84 °53'03" West, 1 10.38 feet; THENCE along said proposed south right -of -way line and along said tangent curve to the . left, an are distance of 110.56 feet to a set 1/2 inch iron rod with GAI cap for corner; EXHIBIT A - to Special Warranty Deed Page 5 of 5 THENCE South 79 °16'24" West, continuing along said proposed south right -of -way line, a distance of 88.52 feet to a set 1/2 inch iron rod with GAI cap for corner, said point being the most northerly point of a corner -clip; THENCE South 34 °16'24" West, leaving said proposed south right-of-way line, and along said corner -clip, a distance of 28.28 feet to a set 1/2 inch iron rod with GAI cap for corner, said point being in the proposed east right-of-way line of Bonnie Brae Street (having a variable width R.O.W.); THENCE South 10 043'36" East, along said proposed east right -of -way line, a distance of 97.31 feet to a set 1/2 inch iron rod with GAI cap for corner, for the beginning of a tangent curve to the right having a radius of 2347.50 feet, a central angle of 10 °43'36 ", and a long chord which bears South 05 °21'48" East, 438.85 feet; THENCE continuing along said proposed east right -of -way line, and along said tangent curve to the right, an are distance of 439.49 feet to a set 1/2 inch iron rod with GAI cap for corner; THENCE South 00 °00'00" West, continuing along said proposed east right-of-way line, a distance of 1163.09 feet to a set 1/2 inch iron rod with GAI cap for corner, said point being in the north line of said Chamberlain tract; THENCE North 89 °55'12" West, leaving said proposed east right-of-way line, and along said north line, a distance of 114.64 feet to the POINT OF BEGINNING and CONTAINING 204,477 square feet, 4.69 acres of land, more or less, of which 6,838 square feet of land is being used as roadway use and drainage at this time. SGJ.'Q„� tAd �vY(1� M-L. PETERSON •• 59;99:; 0/17 /201-t sAlegal \our documents\ contracts \12 \harlan properties utility and slope easement.doc ATTACHMENT 2 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. UTILITY AND SLOPE EASEMENT THE STATE OF TEXAS, § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Harlan Properties, Inc., a Texas corporation ( "Grantor "), in consideration of the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt and sufficiency of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ( "Grantee ") a perpetual utility and slope easement in, along, upon, under, over and across the following described property (the "Property "), owned by Grantor, and situated in Denton County, Texas, located in the A. Tompkins Survey, Abstract Number 1246, to wit: PROPERTY DEPICTED AND DESCRIBED IN EXHIBIT "A ", ATTACHED HERETO AND MADE A PART HEREOF For the following purposes: Constructing, reconstructing, installing, repairing, relocating, operating, and perpetually maintaining utilities and lateral slope, and related facilities and appurtenances, in, along, upon, under, over and across said Property, including without limitation, the free and uninterrupted use, liberty, passage, ingress, egress and regress, at all times in, along, upon, under, over and across the Property to Grantee herein, its agents, employees, contractors, workmen and representatives, for the purposes set forth herein, including without limitation, the making additions to, improvements on and repairs to said facilities, lateral slope features or grade, or any part thereof. This Easement is subject to the following covenants and agreements: 1. Structures. No buildings, fences, structures, signs, facilities, improvements or obstructions of any kind, or portions thereof, shall be constructed, erected, reconstructed or placed in, along, upon, under, over or across the Property. Further, Grantor stipulates and acknowledges that the Grantee, in consideration of the benefits above set out, may alter the grade of the Property and may remove from the Property, such buildings, fences, structures, signs, facilities, improvements and other obstructions as may now or hereafter be found upon said Property and dispose of any such buildings, fences, structures, signs, facilities, improvements or obstructions in any manner it deems appropriate without liability to Grantee. 2. Maintenance of Lateral Slope. No activity, of any kind, shall be conducted on the Property by Grantor that may impair, damage or destroy the lateral slope, including without limitation, excavation or movement of soil or other material. 3. Access. For the purpose of exercising and enjoying the rights granted herein, the Grantee shall have access to the Property by way of existing public property or right -of -way. 4. Trees and Landscaping. No shrub or tree shall be planted upon the Property or that may encroach upon the Property. Grantee may cut, trim, or remove any shrubs or trees, or portions of shrubs or trees now or hereafter located within or that may encroach or overhang upon the Property without liability to Grantee, including without limitation, the obligation to make further payment to Grantor. 5. Grantor's Rights. Grantor shall have the right, subject to the covenants and restrictions contained herein, to make use of the Property for any purpose that does not interfere with the City's rights granted to it herein for the purposes granted. 6. Successors and Assigns. This grant and the provisions contained herein shall constitute covenants running with the land and shall be binding upon the Grantor and Grantee, and their successors and assigns. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. Witness my hand, this the _ day of , 2012. 2 Grantor: Harlan Properties, Inc., a Texas corporation By: _ Name: Title: Date: , 2012. ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2012 by _ of Harlan Properties, Inc., a Texas corporation, on behalf of said corporation. Notary Public, in and for the State of Texas My Commission Expires: Accepted this day of , 2012, for the City of Denton, Texas (Ordinance No. 2012 - �. Paul Williamson Real Estate Manager AFTER RECORDING RETURN TO: City of Denton — Engineering Department 901 -A Texas Street 3 EXHIBIT A - Utility and Slope Easement Tract I PAGE 1 OF 2 i>a Ov a POINT OF BEGINNING HARLAN PROPERTIES, INC. VOL, 4704, PG. 1297 D.R.D.C.T. -, N90'00'00 "E 15.00' \ w 00 \'a O \1a zz��� ' 5'12 "E 14.64' N89'55' 12 "W 15.00' qJ> Ma�eti� THE CHAMBERLAIN TRUST. VOL. 4522, PG. 1336 D.R.D.C.T. BASIS OF BEARING IS NORTH AMERICAN DATUM OF 1983 (NAO -B3) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 25-USE-1 BEING A 3,668 SQ.FT. 0.08 ACRE UTILITY & SLOPE EASEMENT n SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 12465 DENTON COUNTY, TEXAS GRAPHIC SCALE 1' -100' Graham Associates,lnc, CONSULTING ENGINEERS & PLANNERS 0 50 too 150 600 SIX FLAGS OPo"6, SUITE 600 H £NOFAMMI �Oi� et 10153 -� DATE DECEMBER 2011 u /uun w n /rco -u❑c -� I 2600 S.BONNIE BRAE 2743 S. BONNIE BRAE LOT 30, SEC 2 BARBARA SEAL VOL.4639, PG.12O9 DUSTIN & SHANTEL D.R.O.C.T. BARBER SOLAR WAY AOOITION SECTION TWO 2835 S. BONNIE BRAE BARBARA SEAL ,h INST. NO. 2009 -36221 i C.R.O,C.T. ROAD C(ji�1 �\ I 2925 S. BONNIE BRAE ALFRED & BECKY CAMP INST. NO. 2010 -62292 I � t POINT OF COMMENCING END 5/8" I.R THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 D.R.D.C.T. i>a Ov a POINT OF BEGINNING HARLAN PROPERTIES, INC. VOL, 4704, PG. 1297 D.R.D.C.T. -, N90'00'00 "E 15.00' \ w 00 \'a O \1a zz��� ' 5'12 "E 14.64' N89'55' 12 "W 15.00' qJ> Ma�eti� THE CHAMBERLAIN TRUST. VOL. 4522, PG. 1336 D.R.D.C.T. BASIS OF BEARING IS NORTH AMERICAN DATUM OF 1983 (NAO -B3) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 25-USE-1 BEING A 3,668 SQ.FT. 0.08 ACRE UTILITY & SLOPE EASEMENT n SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 12465 DENTON COUNTY, TEXAS GRAPHIC SCALE 1' -100' Graham Associates,lnc, CONSULTING ENGINEERS & PLANNERS 0 50 too 150 600 SIX FLAGS OPo"6, SUITE 600 H £NOFAMMI �Oi� et 10153 -� DATE DECEMBER 2011 u /uun w n /rco -u❑c -� Page 2 of 2 EXHIBIT A - Utility and Slope Easement Tract 1 PARCEL 25 -USE -I LEGAL DESCRIPTION UTILITY & SLOPE EASEMENT Being a 0.08 acre tract of land situated in the A. Tompkins Survey, Abstract No. 1246, Denton County, Texas and being a portion of a tract of land conveyed to Harlan Properties, Inc. as recorded in Volume 4704, Page 1297, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a found 5/8 inch iron rod, said point being the southwest corner of said Harlan tract, being the southeast corner of a tract of land conveyed to Alfred and Becky Camp, as recorded in Instrument No. 2010- 62292, Deed Records, Denton County, Texas, and being in the north line a tract of land conveyed to The Chamberlain Trust, as recorded in Volume 4522, Page 1336, Deed Records, Denton County, Texas; THENCE South 89 °55'12" East, along said north line, a distance of 114.64 feet to a point for the POINT OF BEGINNING, said point being in the said north line of The Chamberlain Trust tract and being in the proposed east right -of -way line of Bonnie Brae Street (having a variable width R.O.W.); THENCE North 00 100'00" East, leaving said south line and along said proposed east right -of -way line, a distance of 244.51 feet to a point for corner; THENCE North 90 °00'00" East, leaving said proposed east right -of -way line, a distance of 15.00 feet to a point for corner; THENCE South 00 °00'00" West, a distance of 244.53 feet to a point for corner, said point being in the south line of said Harlan tract and being the north line of said The Chamberlain Trust tract, being a common line; THENCE North 89 °55'12" West, leaving said proposed east right -of -way line and along said common line, a distance of 15.00 feet to the POINT OF BEGINNING and CONTAINING 3,668 square feet, 0.08 acres of land, more or less. EXHIBIT A - Utility and Slope Easement Tract 2 PAGE 1 OF 3 SEE SHEET 2 2600 S.BONNIE BRAE 2743 S. BONNIE BRAE LOT 30, SEC 2 ; BARBARA SEAL VOL.4639, PG.12O9 �! DUSTIN & SHANTEL D. R.O. C. T. BARBER SOLAR WAY ADDITIONpf /,' SECTION TWO (D W 3 2835 S. BONNIE BRAE , O �10 \i d BARBARA SEAL INST, NO. 2009 -36221 p • ) O \ O ti C. R. D.C. T. p \'O Z �((nn HARLAN PROPERTIES, INC. VOL. 4704, PG. 1297 �) D. R. D. C. T. POINT OF � �l BEGINNING \� W N3 27 83 6 2925 S. BONNIE BRAE ALFRED & BECKY CAMP �o INST. NO. 2010 -62292 0 a �•,er SURVEY LINE 589'55'12 "E POINT OF 114.64' COMMENCING FND 5/8' I.R THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 THE CHAMBERLAIN TRUST l D.R. D. C. T. VOL. 4522, PG. 1336 D.R.D.C.T, e I ae„ OASIS OF OEARTNG I5 NORTH AMERICAN DATUM OF 1983 (NAD-83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 25 -USE -2 BEING A 10,874 SQ.FT. /0.25 ACRE UTILITY & SLOPE EASEMENT [rnl SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 12461 DENTON COUNTY, TEXAS GRAPHIC SCALE 1' -i00• Graham Associates,lnc. CONSULTING ENGINEERS ai PLANNERS o 50 10o i5o NG ENGI Eo0 six DRIW, SUt1E 600 ARUNOTW, MtAS 40-NM DATE: DECEMBER 2011 ® � nRMi hn a 0tax -00 j /uenc0nprt5 -uae -z PAGE 2 OF 3 204 SOLAR WAY LOT 13, SEC 2 RONALD CORNELL SOLAR WAY ADDITION, SECTION TWO 1,�ZpN pOp NO 8p�'P 8E SN �pG t AA EXHIBIT A - Utility and Slope Easement Tract 2 202 SOLAR NAY LOT 14A, 54C 2 RONALD CORNELL I SOLAR WAY ADDITION, SECTION TWO C 2400 S. BONNIE BRAE LOT 14B, SEC 2 CAROLYN MORENO SOLAR WAY ADDITION, SECTION TWO I / \ 203 GOODSON WAY 2LOTG16, SECW2Y LOT 16, SEC 2 MICHAEL 6 ELIZABETH BRADLEY 6 LEAH SEILER VAUGHN SOLAR WAY ADDITION, LAR WAY ADDITION, SECTION TWO SECTION TWO i O'r � 1 ----•---- ¢� M rlr ci C! ,� y��urL4•. 10 2Q 0 202 GOODSON WAY LOT 29, SEC 2 MARY SUE STEWART SOLAR WAY ADDITION, SECTION TWO l \' Sttp� 2673 S. BONNIE BRAE DeNAE BICKFORD V pOG�A02� INST. S,3\- N0. 2010 -40218 PA9�COpt1pG;�2 \ D. R. O.C.T. BASIS OF BEARING IS NORTH AMERICAN DATUM OF 1983 (NAO -83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. O a Pa a'i 0 Qay a SHEET r HARLAN PROPERTIES, INC. VOL. 4704, PG. 1297 1 D.R.O.C.T. I i I N9O'00' 00 "E 15.00' O O O O PARCEL 25 -SE- -2 BEING A 10,874 SQ.FT. /0.25 ACRE UTILITY & SLOPE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, nnn ABSTRACT NO. 12489 DENTON COUNTY, TEXAS GRAPHIC SCALE 1' -100' ® Graham Associates,lnc. CONSULTING ENGINEERS do PLANNERS 0 50 100 150 1100 SIX tU08 MME, SUITE 600 ..TON, Tour 76011 (1117) 1140 -barb DATE: DECEMBER 2011 TM MW F- 11611nWLS piRMi 101636 -00 u /uonwi,i rco -wc -c \' fD O O O O PARCEL 25 -SE- -2 BEING A 10,874 SQ.FT. /0.25 ACRE UTILITY & SLOPE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, nnn ABSTRACT NO. 12489 DENTON COUNTY, TEXAS GRAPHIC SCALE 1' -100' ® Graham Associates,lnc. CONSULTING ENGINEERS do PLANNERS 0 50 100 150 1100 SIX tU08 MME, SUITE 600 ..TON, Tour 76011 (1117) 1140 -barb DATE: DECEMBER 2011 TM MW F- 11611nWLS piRMi 101636 -00 u /uonwi,i rco -wc -c Page 3 of 3 EXHIBIT A - Utility and Slope Easement Tract 2 PARCEL 25 -USE -2 LEGAL DESCRIPTION UTILITY & SLOPE EASEMENT Being a 0.25 acre tract of land situated in the A. Tompkins Survey, Abstract No. 1246, Denton County, Texas and being a portion of a tract of land conveyed to Harlan Properties, Inc. as recorded in Volume 4704, Page 1297, Deed Records, Denton County, Texas, and being more particularly described as follows; COMMENCING at a found 5/8 inch iron rod, said point being the southwest corner of said Harlan tract, being the southeast corner of a tract of land conveyed to Alfred and Becky Camp, as recorded in Instrument No, 2010 - 62292, Deed Records, Denton County, Texas, and being in the north line a tract of land conveyed to The Chamberlain Trust, as recorded in Volume 4522, Page 1336, Deed Records, Denton County, Texas; THENCE South 89 °55'12" East, along said north line, a distance of 114.64 feet to a point for corner, said point being in the said north line of The Chamberlain Trust tract and being in the proposed east right -of -way line of Bonnie Brae Street (having a variable width R.O.W); THENCE North 00 100'00" East, leaving said south line and along said proposed east right -of- way line, a distance of 291.30 feet to a point for the POINT OF BEGINNING; THENCE North 00 °00'00" East, continuing along said proposed east right -of -way line, a distance of 713.21 feet to a point for corner; THENCE North 90 °00'00" East, leaving said proposed east right -of -way line, a distance of 15.00 feet to a point for corner; THENCE South 00 °00'00" West, a distance of 736.65 feet to a point for corner; THENCE North 32 036'45" West, a distance of 27.83 feet to the POINT OF BEGINNING and CONTAINING 10,874 square feet, 0.25 acres of land, more or less. m5-15- -Zbl7- PAGE 1 OF 5 2600 S.BONNIE BRAE LOT 30, SEC 2 i DUSTIN 6 SHANTEL BARBER SOLAR WAY ADDITION SECTION TWO l ; 1 eg�afri!ROAD t EXHIBIT A - Utility and Slope Easement Tract 3 2743 S. BONNIE BRAE BARBARA SEAL VOL.4539, PG.12O9 D.R.O.C.T. 2835 S. BONNIE BRAE BARBARA SEAL INST. NO. 2009 -36221 C.R.O.C.T. i i r ; 2925 S. BONNIE BRAE NST E NO. BECKY 200-62292 D.R.D.C.T. POINT OF COMMENCING FND 5/6" I.R THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 t� D.R.O.C.T. r, SHEET In QIO W O 0 0 0 Z 0 o� a.� a w HARLAN PROPERTIES, INC. VOL. 4704, PG. 1297 D.R.D.C.T. �0�� 4 14.54 �y R, THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 O.R.D.C.T. �4 rOF SIS OF BEARING IS NORTH AMERICAN DATUM 198 3 (NAG -83) STATE PLANE COORDINATE STEM, TEXAS NORTH CENTRAL. PARCEL 25 -USE -3 BEING A 10,114 SQ.FT. /0.23 ACRE UTILITY & SLOPE EASEMENT t„' SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 12460 DENTON COUNTY, TEXAS GRAPHIC SCALE 1•-100' Graham Associates Inc. D 50 100 150 (� CONSULTING ENGINEERS St 6W RS 1500 o VE, 0o s1x Fos DRI Sv1'fTE 8GG ARLINGTON, roux 76011 ((017)) 040 -WM DATE: DECEMBER 2011 WE FIRM F- 1141/18PLS f1RMI 101038 -00 .�� uen �un� rca-wc-a , POINT OF COMMENCING FND 5/6" I.R THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 t� D.R.O.C.T. r, SHEET In QIO W O 0 0 0 Z 0 o� a.� a w HARLAN PROPERTIES, INC. VOL. 4704, PG. 1297 D.R.D.C.T. �0�� 4 14.54 �y R, THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 O.R.D.C.T. �4 rOF SIS OF BEARING IS NORTH AMERICAN DATUM 198 3 (NAG -83) STATE PLANE COORDINATE STEM, TEXAS NORTH CENTRAL. PARCEL 25 -USE -3 BEING A 10,114 SQ.FT. /0.23 ACRE UTILITY & SLOPE EASEMENT t„' SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 12460 DENTON COUNTY, TEXAS GRAPHIC SCALE 1•-100' Graham Associates Inc. D 50 100 150 (� CONSULTING ENGINEERS St 6W RS 1500 o VE, 0o s1x Fos DRI Sv1'fTE 8GG ARLINGTON, roux 76011 ((017)) 040 -WM DATE: DECEMBER 2011 WE FIRM F- 1141/18PLS f1RMI 101038 -00 .�� uen �un� rca-wc-a PAGE 2 OF 5 204 SOLAR WAY LOT 13, SEC 2 RONALD CORNELL SOLAR WAY ADDITION, SECTION TWO EXHIBIT A - Utility and Slope Easement Tract 3 ( i\ 202 SOLARIWAY LOT 14A, S�C 2- RONALD COR ELL SOLAR WAY ADDITION, SECTION TWO A- 10'43'36" — R- 2347.50' T =220.39' L- 439.49' Cb =NO5'21'4B "W Lc =438.85' 6� 2400 S. BONNIE BRAE LOT 14B, SEC 2 CAROLYN MORENO SOLAR WAY ADDITION, SECTION TWO , ti , r , r r I J, i 'rljrr A, tU 000 IV -S O 202 GOODSON WAY LOT 29, SEC 2 MARY SUE STEWART SOLAR WAY ADDITION, SECTION TWO �\ �10N, 2673 S. BONNIE BRAE DeNAE BICKFORD p00SH0 INST. NO. 2010 -40218 00�Ag�COOQG �22� tl D.R.D,C.T. BASIS OF BEARING IS NORTH AMERICAN DATUM OF 19B3 (NAD -B3) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. SHEET 3 A= 10'43'36" R= 2362,50' T =221,80' L =442.30' Cb =SO5'21'48 "E Lc =441,65' Lu v HARLAN PROPERTIES, INC. °o voo VOL. 4704, PG. 1297 D.R.D.C.T. 0 C °CD O Oa+ Z �a POINT OF BEGINNING O =� F O Pq i ®s Q1 of a P+ SHEET uI v m w 0 0 0 0 zz N90'00'00 "W 15.00' PARCEL 25 -USE -3 BEING A 10,114 SQ.FT. /0.23 ACRE UTILITY & SLOPE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 12469 1F' DENT ON COUNTY, TEXAS GRAPHIC SCALE 1' -100' Graham Associates,inc. CONS ENGINEERS do PLANNERS 0 50 100 150 800 SIX eoo SIX Funs DRIVE, SUITE soo ARLINOTDN, TOMS 70011 817 640-"" DATE: DECEMBER 2011 TOPE FIRMr F- 1101/IHPLS FIRMi 101838 -00 'J/uencon/re❑ -vac -j I i , 0,�.1ZON O� I1�OAA %A0 gE0�Y1, PO � ' 90Y-p 201 GOODSON WAY 203 GOODSON WAY LOT 15, SEC 2 LOT 16, SEC 2 MICHAEL & ELIZABETH ; BRADLEY & LEAH SEILER i VAUGHN SOLAR WAY ADDITION, LAR WAY ADDITION, SECTION TWO SECTION TWO > , ti , r , r r I J, i 'rljrr A, tU 000 IV -S O 202 GOODSON WAY LOT 29, SEC 2 MARY SUE STEWART SOLAR WAY ADDITION, SECTION TWO �\ �10N, 2673 S. BONNIE BRAE DeNAE BICKFORD p00SH0 INST. NO. 2010 -40218 00�Ag�COOQG �22� tl D.R.D,C.T. BASIS OF BEARING IS NORTH AMERICAN DATUM OF 19B3 (NAD -B3) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. SHEET 3 A= 10'43'36" R= 2362,50' T =221,80' L =442.30' Cb =SO5'21'48 "E Lc =441,65' Lu v HARLAN PROPERTIES, INC. °o voo VOL. 4704, PG. 1297 D.R.D.C.T. 0 C °CD O Oa+ Z �a POINT OF BEGINNING O =� F O Pq i ®s Q1 of a P+ SHEET uI v m w 0 0 0 0 zz N90'00'00 "W 15.00' PARCEL 25 -USE -3 BEING A 10,114 SQ.FT. /0.23 ACRE UTILITY & SLOPE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 12469 1F' DENT ON COUNTY, TEXAS GRAPHIC SCALE 1' -100' Graham Associates,inc. CONS ENGINEERS do PLANNERS 0 50 100 150 800 SIX eoo SIX Funs DRIVE, SUITE soo ARLINOTDN, TOMS 70011 817 640-"" DATE: DECEMBER 2011 TOPE FIRMr F- 1101/IHPLS FIRMi 101838 -00 'J/uencon/re❑ -vac -j PAGE 3 OF 5 �aA�`� 2216 S. BONNIE BRAE LOT 2 CHRISTOPHER M. WATTS VOL. 5102, PG. 2398 O.R.D.C.T. SOLAR WAY ADDITION CAB. H, PG. 44 i EXHIBIT A - Utility and Slope Easement Tract 3 ti i L ; ; i i 1� A= 10'43'36" R @2347 ,50' T =220,9' L =439.49' Cb-N05 '21 ' 48 "W Lc =438.85' J�Jr- -- --- - ----- ifA rJIJ, -- -- - -.. - - -- i � V� ti 1 ; ;I �D rod 2324 HIGHLAND PARK RD MILTON B. CLEARMAN & SPOUSE, ANITA A. CLEARMAN VOL. 4437, PG. 2213 D.R.O.C.T. IN _ _ jEaA ND PARK ROAD --------------- '.1 J----------------- _______„______. 2220 S. BONNIE BRAE LOT 3A ;$ ' JOHN P. DANSBY N N VOL. 1554, PG. 969 D.R.D.C,T. •^ La a W� ; ; 201 SOLAR WAY LOT 3B, SEC 2 m i MARIEL _& RAY — TAM -RAY SOLAR WAY ADDI.IION— _ — SECTION TWO A= 10'43'36" R @2347 ,50' T =220,9' L =439.49' Cb-N05 '21 ' 48 "W Lc =438.85' J�Jr- -- --- - ----- ifA rJIJ, -- -- - -.. - - -- i � V� ti 1 ; ;I �D rod 2324 HIGHLAND PARK RD MILTON B. CLEARMAN & SPOUSE, ANITA A. CLEARMAN VOL. 4437, PG. 2213 D.R.O.C.T. IN _ _ jEaA ND PARK ROAD --------------- '.1 J----------------- _______„______. N34'16'24 "E 21,21' _- ---- -- — — N N Qf'o LO �NW •^ La a W� m u9' cd �i HARLAN PROPERTIES, INC. VOL 1297 D R D. C T 10 '43' 36" A- R-2362.50' TA221.80' CbAS05321'48 "E \l Lca441,65' SHEET 2 BASIS OF BEARING IS NORTH AMERICAN DATUM OF 1983 (NA013) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 25 -USE -3 BEING A 10,114 SQ.FT. /0.23 ACRE UTILITY & SLOPE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, nn ABSTRACT NO. 12469 DENTON COUNTY, TEXAS GRAPHIC SCALE 1' +f00' Graham Associates Inc. CONSULTING ENGINEERS do PLNNERS 0 50 100 150 000 SIX tU09 04M SUITE 600 ARLINGTON, MUS 76011 617 640—MM DATE; DECEMBER 201 1 TSPE FIRMi F- 1101/79KS FIFM 101638 -00 J /U8nt0n /ven_use -a Page 4 of 5 EXHIBIT A - Utility and Slope Easement Tract 3 PARCEL 25 -USE -3 LEGAL DESCRIPTION UTILITY & SLOPE EASEMENT Being a 0.23 acre tract of land situated in the A, Tompkins Survey, Abstract No. 1246, Denton County, Texas and being a portion of a tract of land conveyed to Harlan Properties, Inc. as recorded in Volume 4704, Page 1297, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a found 5/8 inch iron rod, said point being the southwest corner of said Harlan tract, being the southeast corner of a tract of land conveyed to Alfred and Becky Camp, as recorded in Instrument No. 2010 - 62292, Deed Records, Denton County, Texas, and being in the north line a tract of land conveyed to The Chamberlain Trust, as recorded in Volume 4522, Page 1336, Deed Records, Denton County, Texas; THENCE South 89 °55'12" East, along said north line, a distance of 114.64 feet to a point for corner, said point being in the said north line of The Chamberlain Trust tract and being in the proposed east right -of -way line of Bonnie Brae Street (having a variable width R.O.W.); THENCE North 00 100'00" East, leaving said south line and along said proposed east right -of- way line, a distance of 1034.51 feet to a point for the POINT OF BEGINNING; THENCE North 00 100'00" East, continuing along said proposed east right -of -way line, a distance of 128.58 feet to a point for corner, for the beginning of a tangent curve to the left having a radius of 2347.50 feet, a central angle of 10 °43'36 ", and a long chord which bears North 05 021148" West; 438.85 feet; THENCE continuing along said proposed east right -of -way line and along said tangent curve to the left, an are distance of 439.49 feet to a point for corner; THENCE North 10 143'36" West, continuing along said proposed east right -of -way line, a distance of 97.31 feet to a point for corner, said point being the southwest corner of a corner -clip of the intersection said proposed east right -of -way line of Bonnie Brae Street and the proposed south right -of -way line of Highland Park Road (having a variable width R.O.W.); THENCE North 34 116'24" East, along said corner -clip, a distance of 21.21 feet to a point for corner; THENCE South 10 043'36" East, leaving said corner -clip, a distance of 112.31 feet to a point for corner, for the beginning of a tangent curve to the right having a radius of 2362.50 feet, a central angle of 10 043136 ", and a long chord which bears South 05 °21'48" East, 441.65 feet; THENCE along said tangent curve to the right, an arc distance of 442,30 feet to a point for corner; THENCE South 00 °00'00" West, a distance of 128.58 feet to a point for corner; EXHIBIT A - Utility and Slope Easement Tract 3 Page 5 of 5 THENCE North 90 °00'00" West, a distance of 15.00 feet to the POINT OF BEGINNING and CONTAINING 10,114 square feet, 0.23 acres of land, more or less. sAlegal\our docu men ts\ contracts \INiarlan properties utility and drainage case ment.doc ATTACHMENT 3 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. UTILITY AND DRAINAGE EASEMENT THE STATE OF TEXAS, § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Harlan Properties, Inc., a Texas corporation ( "Grantor "), in consideration of the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt and sufficiency of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ( "Grantee ") a perpetual utility and drainage easement in, along, upon, under, over and across the following described property (the "Property "), owned by Grantor, and situated in Denton County, Texas, located in the A. Tompkins Survey, Abstract Number 1246, to wit: PROPERTY DEPICTED AND DESCRIBED IN EXHIBIT "A ", ATTACHED HERETO AND MADE A PART HEREOF For the following purposes: Constructing, reconstructing, installing, repairing, relocating, operating, and perpetually maintaining utilities and drainage, and related facilities and appurtenances, in, along, upon, under, over and across said Property, including without limitation, the free and uninterrupted use, liberty, passage, ingress, egress and regress, at all times in, along, upon, under, over and across the Property to Grantee herein, its agents, employees, contractors, workmen and representatives, for the purposes set forth herein, including without limitation, the making additions to, improvements on and repairs to said facilities, drainage features or grade, or any part thereof. This Easement is subject to the following covenants and agreements: 1. Structures. No buildings, fences, structures, signs, facilities, improvements or obstructions of any kind, or portions thereof, shall be constructed, erected, reconstructed or placed in, along, upon, under, over or across the Property. Further, Grantor stipulates and acknowledges that the Grantee, in consideration of the benefits above set out, may alter the grade of the Property and may remove from the Property, such buildings, fences, structures, signs, facilities, improvements and other obstructions as may now or hereafter be found upon said Property and dispose of any such buildings, fences, structures, signs, facilities, improvements or obstructions in any manner it deems appropriate without liability to Grantee. 2. Maintenance of Lateral Slope. No activity, of any kind, shall be conducted on the Property by Grantor that may impair, damage or destroy the lateral slope established for drainage, including without limitation, excavation or movement of soil or other material. 3. Access. For the purpose of exercising and enjoying the rights granted herein, the Grantee shall have access to the Property by way of existing public property or right -of -way. 4. Trees and Landscaping. No shrub or tree shall be planted upon the Property or that may encroach upon the Property. Grantee may cut, trim, or remove any shrubs or trees, or portions of shrubs or trees now or hereafter located within or that may encroach or overhang upon the Property without liability to Grantee, including without limitation, the obligation to make further payment to Grantor. 5. Grantor's Rights. Grantor shall have the right, subject to the covenants and restrictions contained herein, to make use of the Property for any purpose that does not interfere with the City's rights granted to it herein for the purposes granted. 6. Successors and Assigns. This grant and the provisions contained herein shall constitute covenants running with the land and shall be binding upon the Grantor and Grantee, and their successors and assigns. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. Witness my hand, this the _ day of 32012. Grantor: 2 Harlan Properties, Inc., a Texas corporation By: _ Name: Title: Date: _, 2012. ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2012 by of Harlan Properties, Inc., a Texas corporation, on behalf of said corporation. Notary Public, in and for the State of Texas My Commission Expires: Accepted this day of , 2012, for the City of Denton, Texas (Ordinance No. 2012- ). By: Paul Williamson Real Estate Manager AFTER RECORDING RETURN TO: City of Denton — Engineering Department 901 -A Texas Street Denton, Texas 76209 Attn: Paul Williamson 3 PAGE I OF 2 2600 S.BONNIE BRAE LOT 30, SEC 2 s DUSTI ANTEL BARBER SOLAR WAY ADDITION SECTION TWO S% i 99p��ROAD l + EXHIBIT A - Utility and Drainage Easement Tract 1 2743 S. BONNIE BRAE BARBARA SEAL VOL.4639, PG.1209 N. I D.R.D.C.T, I w eta ,z. 2835 S. BONNIE BRAE BARBARA SEAL INST. NO. 2009 -36221 N r7 C.R.U.C.T. av ! FIARLAN PROPERTIES, INC, 0 ! VOL, 4704, PG, 1297 P4 I 0.R.D.C.T. i J fig• ti 2925 S. BONNIE BRAE ALFRED & BECKY CAMP INST. NO. 2010-62292 O.R.D.C.T. POINT OF COMMENCING FND 5/8' I.R i ` THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 D.R.D.C.T. I N00'00'00 "E 46.79' �I POINT OF BEGINNING 14.64' 0 0 0 Z 2'36'45"E 37.11' SO0 '00 ' 00 "W 16,53' N90 '00 ' 00 "W 20.00' 16 V�. SURVEY THE CHAMBERLAIN TRUST (' VOL. 4522, PG. 1336 D.R.D.C.T. � r SIS OF BEARING IS NORTIi AMERICAN DATUM 1983 (NAD -83) STATE PLANE COORDINATE STEM, TEXAS NORTH CENTRAL. PARCEL 25 -UDE - 1 BEING A 623 SQ.FT. /0.01 ACRE UTILITY & DRAINAGE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 1246, DENTON COUNTY, TEXAS GRAPHIC SCALE 1' -160' r- Jill pmmo—n� 0 50 100 150 Graham Assoclates,inc. ® CONSULTING NGINEERS PLANNERS 800 OX eGO ex fuos Dro S ve, suns 600 ARLINGTON, TEXAS 78011 (61')') 640 -6333 TSPe FlR)h F- 11D1/m" t 1010.78 -OG [nn DATE: SEPTEMBER 2012 i� POINT OF COMMENCING FND 5/8' I.R i ` THE CHAMBERLAIN TRUST VOL. 4522, PG. 1336 D.R.D.C.T. I N00'00'00 "E 46.79' �I POINT OF BEGINNING 14.64' 0 0 0 Z 2'36'45"E 37.11' SO0 '00 ' 00 "W 16,53' N90 '00 ' 00 "W 20.00' 16 V�. SURVEY THE CHAMBERLAIN TRUST (' VOL. 4522, PG. 1336 D.R.D.C.T. � r SIS OF BEARING IS NORTIi AMERICAN DATUM 1983 (NAD -83) STATE PLANE COORDINATE STEM, TEXAS NORTH CENTRAL. PARCEL 25 -UDE - 1 BEING A 623 SQ.FT. /0.01 ACRE UTILITY & DRAINAGE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 1246, DENTON COUNTY, TEXAS GRAPHIC SCALE 1' -160' r- Jill pmmo—n� 0 50 100 150 Graham Assoclates,inc. ® CONSULTING NGINEERS PLANNERS 800 OX eGO ex fuos Dro S ve, suns 600 ARLINGTON, TEXAS 78011 (61')') 640 -6333 TSPe FlR)h F- 11D1/m" t 1010.78 -OG [nn DATE: SEPTEMBER 2012 Page 2 of 2 EXHIBIT A - Utility and Drainage Easement Tract 1 PARCEL 25 -UDE -1 LEGAL DESCRIPTION UTILITY & DRAINAGE EASEMENT Being a 0.01 acre tract of land situated in the A. Tompkins Survey, Abstract No.1246, Denton County, Texas and being a portion of a tract of land conveyed to Harlan Properties, Inc. as recorded in Volume 4704, Page 1297, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a found 5/8 inch iron rod, said point being the southwest comer of said Harlan tract, being the southeast corner of a tract of land conveyed to Alfred and Becky Camp, as recorded in Instrument No. 2010- 62292, Deed Records, Denton County, Texas, and being in the north line a tract of land conveyed to The Chamberlain Trust, as recorded in Volume 4522, Page 1336, Deed Records, Denton County, Texas; THENCE South 89 °55'12" East, along said north line, a distance of 114.64 feet to a point for comer, said point being in the said north line of The Chamberlain Trust tract and being in the proposed east right-of-way line of Bonnie Brae Street (having a variable width R.O.W.); THENCE North 00 °00'00" East, leaving said south line and along said proposed east right -of- way line, a distance of 244.51 feet to a point for the POINT OF BEGINNING; THENCE North 00 100'00" East, continuing along said proposed east right -of -way line, a distance of 46.79 feet to a point for corner; THENCE South 32 136'45" East, leaving said proposed east right -of -way line, a distance of 37.11 feet to a point for corner; THENCE South 00 000'00" West, a distance of 15.53 feet to a point for corner; THENCE North 90 °00'00" West, a distance of 20.00 feet to the POINT OF BEGINNING and CONTAINING 623 square feet, 0.01 acres of land, more or less. EXHIBIT A - Utility and Drainage Easement Tract 2 PAGE 1 OF 3 SEE SHEET 2 i � i 2600 S.BONNIE BRAE 2743 S. BONNIE BRAE BARBARA SEAL ^ LOT 30, SEC 2 DUSTIN & SHANTEL �� VOL.4639, PG. ]209 BARBER SOLAR WAY ADDITION SECTION TWO 1,4j I = 0 �7 i 2835 S. BONNIE BRAE J N INSTgAN0AR2009 -36221 T. to I C. R. D. C. op o I HARLAN PROPERTIES, INC. o� I VOL. 4704, PG. 1297 l a w I D, R. D. C. T. i� 1 1104D o ofC 1 blO I � Z ( i 2925 S. BONNIE BRAE ALFRED & BECKY CAMP i INST. NO. 2010 -62292 D.R.D.C.T. I � r , I � I , t L\ I I i � SURVEY LINE S89'55'12 "E 1,01W OF 154.64' COMMENCING�� FND 5 /B" I.R ey i THE CHAMBERLAIN TRUST THE CHAMBERLAIN TRUST ,g VOL. 4522, PG. 1336 D.R.D.C.T. VOL, 4522, PG. 1336 D. R. D. G. 7, � OF BEARING IS NORTH AMERICAN DATUM rBASIS 1983 (NAD -83) STATE PLANE COORDINATE TEM, TEXAS NORTH CENTRAL. PARCEL 25 -UDE -2 BEING A 600 SQ.FT. /0.01 ACRE UTILITY & DRAINAGE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 1246, DENTON COUNTY, TEXAS GRAPHIC SCALE V -500' 0 50 100 150 Graham Associates Inc. CONSULTING ax ENGINEERS It wOERS 600 SI% FLAGS ORIV$ SUITE 600 AR15%OTON. TEXAS 76011 61 640 -6536 TWE MW F -1101/ 19PLS 101 53 5 -00 [rnll DATE: SEPTEMBER 2012 PAGE 2 OF 3 204 SOLAR WAY LOT 13. SEC 2 RONALD CORNELL SOLAR WAY ADDITION, SECTION TWO RXATRIT A - Utility and Drainage Easement Tract 2 � 1\ 1 \ \ ` I 202 SOLAR AY LOT 14A, S�C 2 SOLAR WAY ADDITI- btT,-' ' SECTION TWO �P 20 �� XF 2400 07 S. 148. N RAE SEC B2 n%�(� CAROLYN MORENO 4ey SOLAR WAY ADDITION, \ SECTION TWO i i i i i PV Pp�ZwpAA _ '� GOODSON WAY 15, SEC 2 )LEY & LEAH VAUGHN WAY ADDITION, r - - - - _ - 202 GOODSON WAY LOT 29, SEC 2 MARY SUE STEWART SOLAR WAY ADDITION, SECTION TWO .y i ti �w .z H �J ,Q N 1 L WAY C 2 ZABETH ITION, WO m7 �N oob -14 - Q pIvokI NPR 0 1 1 � X29 1.1301 �G oo0 N p. 100'00'00"E 30.00' POINT OF BEGINNING 0 0 o W o p o� o ate.. Z O Aai HARLAN PROPERTIES, INC. VOL. 4704, PG. 1297 D.R.D.C.T. N90 '00' 00 "E 20.00' S00 '00' 00 "W 30.00' )'00'00 "W 20.00' �Iy b SEE SHEET 1 BASIS OF BEARING I5 NORTH AMERICAN DATUM OF 1983 (NAD -83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 25— UDE- -2 BEING A 600 SQ.FT. /0.01 ACRE UTILITY & DRAINAGE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 1246, DENTON COUNTY, TEXAS GRAPHIC SCALE 1'-100' 0 50 100 150 Graham Associates,inc. CONSULTING ENGINEERS Dc PLANNERS noo six MOS owvE. sh aoo A RMi '° `As76(- 41-SW T E Fl F-li Ol� irI 1 o [nn DATE; SEPTEMBER 2012 /n—f — /DDR_i inc -:) /2673 S. BONNIE BRAE DeNAE BICKFORD INST. N0. 2010-4021B D.R.O.C.T, 100'00'00"E 30.00' POINT OF BEGINNING 0 0 o W o p o� o ate.. Z O Aai HARLAN PROPERTIES, INC. VOL. 4704, PG. 1297 D.R.D.C.T. N90 '00' 00 "E 20.00' S00 '00' 00 "W 30.00' )'00'00 "W 20.00' �Iy b SEE SHEET 1 BASIS OF BEARING I5 NORTH AMERICAN DATUM OF 1983 (NAD -83) STATE PLANE COORDINATE SYSTEM, TEXAS NORTH CENTRAL. PARCEL 25— UDE- -2 BEING A 600 SQ.FT. /0.01 ACRE UTILITY & DRAINAGE EASEMENT SITUATED IN THE A. TOMPKINS SURVEY, ABSTRACT NO. 1246, DENTON COUNTY, TEXAS GRAPHIC SCALE 1'-100' 0 50 100 150 Graham Associates,inc. CONSULTING ENGINEERS Dc PLANNERS noo six MOS owvE. sh aoo A RMi '° `As76(- 41-SW T E Fl F-li Ol� irI 1 o [nn DATE; SEPTEMBER 2012 /n—f — /DDR_i inc -:) Page 3 of 3 EXHIBIT A - Utility and Drainage Easement Tract 2 PARCEL 25 -UDE -2 LEGAL DESCRIPTION UTILITY & DRAINAGE EASEMENT Being a 0.01 acre tract of land situated in the A. Tompkins Survey, Abstract No. 1246, Denton County, Texas and being a portion of a tract of land conveyed to Harlan Properties, Inc. as recorded in Volume 4704, Page 1297, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a found 5/8 inch iron rod, said point being the southwest corner of said Harlan tract, being the southeast corner of a tract of land conveyed to Alfred and Becky Camp, as recorded in Instrument No. 2010- 62292, Deed Records, Denton County, Texas, and being in the north line a tract of land conveyed to The Chamberlain Trust, as recorded in Volume 4522, Page 1336, Deed Records, Denton County, Texas; THENCE South 89 055'12" East, along said north line, a distance of 114.64 feet to a point for corner, said point being in the said north line of The Chamberlain Trust tract and being in the proposed east right -of -way line of Bonnie Brae Street (having a variable width R.O. W.); THENCE North 00 °00'00" East, leaving said south line and along said proposed east right -of- way line, a distance of 1004.51 feet to a point for the POINT OF BEGINNING; THENCE North 00 °00'00" East, continuing along said proposed east right -of -way line, a distance of 30.00 feet to a point for corner; THENCE North 90 100'00" East, leaving said proposed east right of way line, a distance of 20.00 feet to a point for corner; THENCE South 00 °00'00" West, a distance of 30.00 feet to a point for corner; THENCE North 90 000'00" West, a distance of 20.00 feet to the POINT OF BEGINNING and CONTAINING 600 square feet, 0.01 acres of land, more or less. AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Parks and Recreation ACM: John Cabrales, Jr. SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of the Industrial Street International Pop Festival (AKA Geezer Palooza), a music festival to benefit Serve Denton. The event will be held at 103 - 115 Industrial Street, on Sunday, October 20, 2013, from noon until 9 p.m. The exception is specifically requested to increase sound levels from 70 to 75 decibels and for amplified sound on Sunday. Staff recommends approval of request. BACKGROUND The Industrial Street International Pop Festival will feature five live tribute -bands playing 60s and 70s music. No vendor booths will be hosted at this event. The stage will be in front of Dan's Silverleaf, located at 103 Industrial Street, and the music will be broadcast towards Mulberry Street. Event organizers expect approximately 500 — 750 attendees at this free event. Donations will be accepted to benefit Serve Denton. PRIOR ACTION/REVIEW (Council, Boards, Commissions) City Council has approved three requests for exceptions to the noise ordinance to be increased from 70 to 75 decibels for events held on Industrial Street. FISCAL INFORMATION None EXHIBIT Letter of Request Respectfully submitted: tk. OV4��, Emerson Vorel Director of Parks and Recreation Prepared by: Community Events Coordinator September 27, 2013 Janie McLeod Community Events Coordinator City of Denton 601 E. Hickory, Suite B Denton, TX 76205 Dear Ms. McLeod: Please let this letter serve as a request for a noise exemption for the Industrial Street International Pop Festival (AKA Geezer Palooza), planned for Sunday, October 20, 2013, from noon to 9 p.m. on Industrial Street. The event will take place in the east side parking areas from 103 to 115 Industrial Street. This event is a concert featuring five "tribute" bands that play music from the 1960s and 1970s. The concert is open and free to the public. Donations will be accepted for the non - profit organization, Serve Denton. One small area will be set aside for Serve Denton to answer questions about their organization. This will either be a table and chairs, or a pop up canopy, on the sidewalk. In the case of inclement weather, the event will move inside Dan's Silverleaf, at 103 Industrial. We are requesting a noise exception up to 75 decibels and for amplified sound on Sunday. Thank you for your time and consideration in the matter. Sincerely, R2V�,O�� rzob�v�,sov�, Randy Robinson (817) 996 -5076 AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Parks and Recreation ACM: John Cabrales, Jr. SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of amplified music for the 2nd Annual WakePoolooza to be held on Avenue A, between Mulberry and Hickory, on Saturday, October 19, 2013, beginning at 3 p.m. and concluding at 10 p.m. This request is for increased amplified sound from the allowable 70 decibels to 75. Staff recommends approval of the request for amplified sound up to 75 decibels. BACKGROUND APC Events LLC is requesting an exception to the noise ordinance for the 2" a Annual Wakepoolooza. "Avenue A" will be closed from Hickory to Mulberry to accommodate the vendors and crowd. The Red Bull promotional trick and disc jockey will broadcast music during the wakeboarding activities. Two large tanks of water will be placed in the street as professional wake boarders ride their wakeboards on the rail and showcase their skills as they're pulled from one tank of water to the other by a cable. The festival will have boats on display and host a variety of vendors. The WakePoolooza event is designed to raise awareness for the sport and let the Denton community know the University of North Texas has a wakeboarding team. RECOMMENDATION Staff recommends approval of the request for an exception to the noise ordinance from 70 to 75 decibels. PRIOR ACTION/REVIEW (Council, Boards, Commissions) City Council has previously approved requests for exceptions to the noise ordinance from 70 to 75 decibels for events held on Avenue A and in the Fry Street area. EXHIBIT Letter of Request Respectfully submitted: A" OV4� Emerson Vorel Director Prepared by: Janie McLeod Community Events Coordinator 121 Avenue A r r- M=, 11111!11701n�� "TITAMM. I � �10 �- 1 , �-IM 1 11 1 1 1 1 1 1 11 1 1 1 1 1 1! 1 1 1 1 ! I I •! I I I � I I III I I • 1 0 T T I I . event is a family friendly event and we encourage people of all ages to come watch professional roTIT47-M The public interest will be served by showing the audience how fun and exhilarating cable wakeboarding g1pi a live MC explaining each trick with a Di playing music during the event. We are requesting an exception 111111!!l 1�1!!Ijl !IIIIIIII!!I 11311111 IqI!!Il';r1I111l I , 111111111"!1! 11H I ITNFO�� • [TONUMME M11- Sincerely, AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Parks and Recreation ACM: John Cabrales, Jr. flE, SUBJECT Consider a request for an exception to the Noise Ordinance for the purpose of having music played during the Denton Plaza Party located at 508 S. Elm Street on two Saturdays, November 9 and November 16, 2013, from noon to 10 p.m. This request is for an increase in decibels from 70 to 75. Staff recommends approving 75 decibels to 10 p.m. BACKGROUND Mr. Sada Bhagwat, tenant's representative and owner of the Denton Plaza, requests permission for a noise exception to have amplified music. The purpose of the event is to increase citizen awareness regarding various businesses open in the shopping center. There will be music played by several bands; a bounce house, Irish dancers, and bagpipe players for family entertainment throughout the day. In the evening, music will be played for the adult audience. Mr. Bhagwat plans to have two off -duty officers on the premises during the event. Attendees can bring their own chairs and snacks or buy items from local businesses. Neither food nor alcoholic beverages will be sold in the parking lot. Future holiday events such as Christmas, Easter, and Saint Patrick's Day, will also be hosted at this location. RECOMMENDATION Staff recommends approving 75 decibels to 10 p.m. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION None EXHIBIT Request from Mr. Sada Bhagwat Respectfully submitted: Emerson Vorel Director Prepared by: Community Events Coordinator From: s bhagwat [mailto:s bhagwat@hotmaii.com] Sent: Tuesday, October 8, 2013 5:35 PM To: McLeod, Janie T. Subject: Re: Denton Center event Yes, indeed we replied. We will go with Staff's recommendations; 10 pm. Thank you for your kind assistance. suda - Denton Plaza Tenant Rep. From: s bhagwat [mailto:s bhagwat@hotmaii.com] Sent: Monday, September 23, 2013 4:32 PM To: McLeod, Janie T. Subject: Re: Denton Center event Name : Denton Plaza Party Address: 508 south elm street, denton, Texas 76201 Date: November 9, 2013 Time: 12 pm (noon) until 12:00 am Sound permit: up to 75 decibels. Two bands, one in afternoon for family entertainment; second after 8 pm for grown ups. This is what the tenants are proposing. We are flexible as necessary to obtain the permit. As City Council knows this is a dead part of town. We are trying to increase citizen awareness regarding various businesses opened on the shopping center. Thank you for your kind assistance. Suda bhagwat Tenants representative Sent from my iPhone AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Engineering Services ACM: Jon Fortune SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a temporary access permit (the "Permit "), by and between the City of Denton, Texas and EagleRidge Operating, LLC, a Texas limited liability company ( "EagleRidge "), granting a license to EagleRidge to temporarily access certain City owned lands located in the James Edmonson Survey, Abstract Number 401 and the James L. Harris Survey, Abstract Number 555, located generally 1,800 feet southwest of the intersection of South Bonnie Brae and Vintage Boulevard, City of Denton, Denton County, Texas, in connection with the overland transport of water for gas well operations; and providing an effective date. BACKGROUND Staff recently fielded a request by EagleRidge asking permission to temporarily place two (2) water pipelines across the 88 acre City owned tract, presently solely occupied by Fire Station Number 7. EagleRidge is in the process of reworking several gas wells in the southwest quadrant of the City and permitting this request would be an accommodation to them in their efforts. Staff research indicates that placement of such temporary waterlines are routine in respect to proximity gas well operations. To date, the City has not issued any permits for temporary water lines upon City of Denton fee owned tracts, however, "Street Right -of -Way" permits are being issued in those instances where these types of temporary waterlines are traversing streets within the City's jurisdiction. The staff recommended rental rate for the Permit at hand was modeled after the present permit rates in effect for the City of Fort Worth, for such installations upon that city's fee owned tracts. That rental rate, for two (2) pipelines, closely approximates a market ground rental rate for the affected 88 acre tract. The Permit provides for site restoration for any disturbance to the surface, insurance and performance bond requirements, and city staff inspection, similar in respect to the Geophysical Survey License Agreement permits issued by the City in recent years. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. Agenda Information Sheet October 15, 2013 Page 2 RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION The temporary access permit fee calculates to be $1,400.00. The methodology being: 3,500 lineal feet of waterline x ($0.20 /ft.) x (2) waterlines = $1,400.00 EXHIBITS 1. Location Map 2. Letter from applicant 3 . Ordinance Respectfully submitted, r Paul Williamson, Real Estate Manager EXHIBIT 1 attachment to AIS Location Map N NTS October 04, 2013 EXHIBIT 2 attachment to AIS Eagle Ridge Energy www.eagIeridgeenergy.com To: City Service Center 901 A Texas Street, 2nd Floor Denton, Texas 76209 Attn: Paul Williamson — Utilities Engineering Mr. Williamson, Eagle Ridge Energy is currently working on four new gas wells in the area of South Bonnie Brae and Vintage Road. So, Eagle Ridge Energy proposes to install (2)10" temporary above ground aluminum water lines across property owned by the City of Denton at 4111 Vintage Blvd. The waterlines will enter at the Northwest corner and exit at the Southeast corner of the property for approximately 3,500 ft, as shown on map below. The waterlines are used to transport fresh water from one holding pit to another pit east of Denton property during the fracing process. We will need the waterlines for approximately 45 days beginning around November 1, 2013. If you have any questions in regards to this request please contact Mike Fongers at 817 - 980 -0802 or mike.fongersPgmail.com Thanks, w Mike Fongers Water and ROW Agent 3500 Oak Lawn Ave, Ste 300, Dallas, TX 75219 0- 214 - 295 -6704 F- 214 - 520 -2773 sAlegai\our documents \ordinances \13 \cagleridge temp access permit ord.doc EXHIBIT 3 attachment to AIS ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A TEMPORARY ACCESS PERMIT (THE "PERMIT "), BY AND BETWEEN THE CITY OF DENTON, TEXAS AND EAGLERIDGE OPERATING, LLC, A TEXAS LIMITED LIABILITY COMPANY ('`EAGLERIDGE "), GRANTING A LICENSE TO EAGLERIDGE TO TEMPORARILY ACCESS CERTAIN CITY OWNED LANDS LOCATED IN THE JAMES EDMONSON SURVEY, ABSTRACT NUMBER 401 AND THE JAMES L. HARRIS SURVEY, ABSTRACT NUMBER 555, LOCATED GENERALLY 1,800 FEET SOUTHWEST OF THE INTERSECTION OF SOUTH BONNIE BRAE AND VINTAGE BOULEVARD, CITY OF DENTON, DENTON COUNTY, TEXAS, IN CONNECTION WITH THE OVERLAND TRANSPORT OF WATER FOR GAS WELL OPERATIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council finds the granting of a temporary license, as contemplated by the Permit, is in the best interest of the citizens of the City of Denton; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Permit for and on behalf of the City of Denton, said Permit being attached hereto and incorporated herein by reference. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY .. s:Alegal \our documents \ordinances \13 \eagleridge temp access permit ord.doc APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: .... Page 2 TEMPORARY ACCESS PERMIT This Temporary Access Permit and Workspace License Agreement ( "Permit" or "License ") is made and entered into by and between the City of Denton, Texas (hereinafter referred to as "City "), a home -rule municipal corporation organized under the laws of the State of Texas, and EagleRidge Operating, LLC, a Texas limited liability company, (hereinafter referred to as "Company "). The following statements are true and correct and constitute the basis upon which the City has executed the Permit: A. The City owns certain real property described in Exhibit "A ", attached hereto and made a part hereof (the "Land "). B. Company desires to install a temporary water pipeline over and across the Land and wishes to use a certain designated portion of the Land in connection therewith. C. The City has reviewed Company's request and agrees to grant Company use of the designated portion of the Land in accordance with the terms and conditions of this Permit. Agreement I. Term The term of this Permit shall consist of one (1) license period of one hundred and twenty (120) consecutive calendar days ( "License Period "). The Company shall have the ability to select the date on which the License Period shall commence, provided, however, that: (i) the Company must notify the City's Real Estate Division (the "RE Division ") at least five (5) business days prior to the date on which the License Period will commence; and (ii) the License Period shall terminate no later than six (6) months from the date on which this Permit is fully executed. No use of or access to the Licensed Premises (as defined below) shall be allowed outside of the designated License Period. Company's rights in the Licensed Premises hereunder shall be strictly limited and shall frilly and absolutely terminate and be of no further force and effect at the conclusion of the License Period, unless terminated sooner pursuant to the terms hereof. After the expiration or termination of this License, all rights of the Company to occupy the Licensed Premises shall, automatically and without the need for any further documentation, fully and unconditionally terminate, whereupon the Company shall have no right of entry or use of the Licensed Premises whatsoever. II. Licensed Premises Subject to the terms and conditions set forth in this Permit, for and in consideration of the monetary payments to be made hereunder and the other covenants and promises expressed herein, the City does hereby agree to license to the Company during the License Period, without warranty of any kind, including without limitation, warranties of title, the use of a portion of Land, as described in Exhibit "B ", attached hereto and made a part hereof (the "Licensed Premises "). Prior to entry upon the Licensed Premises, Company shall first obtain: 1. A "Site Entry Letter" fi-om the Real Estate Division of the City. The City representative or representatives designated by the City Manager of City shall have the right to approve the plans for the activities to be performed on the Licensed Premises, to place restrictions, obligations and instructions upon Company in addition to those specifically provided by this Permit and to observe the activities of Company hereunder to ensure that such activities are conducted in accordance with the terms of this Permit. 2. A "Right -of -Way Inspection Permit" from the City Engineering Services. The role of the City Right -of -Way Inspector shall be to ensure that Company and /or their contractor(s) are conforming to best practices in their general operations upon the Licensed Premises. A City Right -of -Way Inspection Permit has a fee component, the minimum being one hundred dollars ($100.00). Except as may be permitted or authorized by the City, by and through the City Engineer, no street or highway in the City of Denton shall be blocked or obstructed during the activities permitted by this Permit. Company shall not, under any circumstance, disturb in any way, manner or form, the surface of any street, sidewalk, alley, easement or highway within or in the vicinity of the Licensed Premises. III. License Fee Within five (5) days of the date on which this Permit is fully executed, Company shall deliver to the offices of the RE Division, payment of a License Fee of One Thousand Four Hundred Dollars ($1,400.00) as full and complete monetary compensation for the rights and privileges granted under this Permit. Such payment does not include any payment due, if any, to owners or holders of easements, surface and /or mineral lessees, mineral owners, royalty owners and /or any other party and /or parties. Additionally, this Permit does not purport to license or allow any rights to Company as concerns the owners of such interests and encumbrances. Company agrees not to enter upon the Licensed Premises for any purpose whatsoever until permission of all of the owners of such encumbrances or interests have been obtained. IV. Acceptance of Licensed Premises The Company takes all portions of the Licensed Premises and all appurtenances in "AS IS" condition without any express or implied warranty on the part of the City. The Company accepts the Licensed Premises in their present condition, finds them suitable for the purposes intended, and further acknowledges that it is thoroughly familiar with such condition by reason of personal inspection and does not rely on any representations by the City as to the condition of the Licensed Premises or their suitability for the Page 2 of 10 purposes intended. The Company accepts the Licensed Premises subject to any and all previously recorded easements or other interests that may have been granted on, along, over, under, or across said property, and releases the City from any and all damages, claims for damages, loss, or liabilities that may be caused to owners of any interests in the Licensed Premises, and /or Company's invitees', licensees, or trespassers, by reason of the exercise of such rights or privileges hereunder. The Company's taking possession of the Licensed Premises shall be conclusive evidence that: (a) the Licensed Premises are suitable for the purposes and uses for which same are licensed; and (b) the Company waives any and all defects in and to the Licensed Premises and all the appurtenances thereto. THE CITY ITS OFFICERS ELECTED OFFICIALS AGENTS AND EMPLOYEES SHALL NOT BE LIABLE TO THE COMPANY, ITS AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, INVITEES, LICENSEES OR GUESTS FOR AND THE COMPANY HEREBY RELEASES THE CITY, ITS OFFICERS, ELECTED OFFICIALS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY DAMAGE TO ANY PERSON OR PROPERTY DUE TO THE ACTS OR OMISSIONS OF THE COMPANY, ITS AGENTS, EMPLOYEES, CONTRACTORS, OR SUBCONTRACTORS, INCLUDING BUT NOT LIMITED TO LIABILITY, CLAIMS, LOSSES AND DAMAGES ARISING FROM OR CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF ANY KIND, TYPE OR DEGREE, OF THE CITY, ITS OFFICERS AGENTS ELECTED OFFICIALS AND EMPLOYEES. IT IS UNDERSTOOD AND AGREED THAT THE RELEASE PROVIDED FOR IN THIS SECTION RELEASES THE CITY OF DENTON, TEXAS, ITS OFFICERS, AGENTS ELECTED OFFICIALS AND EMPLOYEES FROM AND AGAINST ITS OWN NEGLIGENCE WHETHER THAT NEGLIGENCE IS THE SOLE OR THE CONTRIBUTING OR CONCURRENT CAUSE OF THE RESULTANT LIABILITY CLAIM LOSS OR DAMAGE. V. Use Not Exclusive This Permit and all rights granted to Company herein are strictly non - exclusive. The City reserves the right to enter into and grant other and future licenses, leases, and other authorizations for use of the Licensed Premises to other persons and entities as the City deems appropriate. This Permit does not establish any priority for the use of the Licensed Premises by the Company or by any present or future licensees or other permit holders. VI. Limitations on Use Company is authorized to utilize the Licensed Premises solely for the placernent of two (2) above ground water pipelines. All Company equipment and materials shall be placed solely within the confines of the Licensed Premises. Unless otherwise approved by the RE Division, the Company shall enter and leave the Licensed Premises via South Bonnie Brae Street and Vintage Boulevard only. South Bonnie Brae Street and Vintage Boulevard shall be used solely for ingress and egress purposes, and no equipment or materials may be placed or maintained on any street or roadway of the City, except when in transit to or from the Licensed Premises, unless authorized by separate permit(s). Paoe 3 of 10 In accessing and using the Licensed Premises, Company shall comply with all of its obligations and responsibilities under this Permit and under any and all applicable, federal, state, or local laws, rules, regulations and /or ordinances. VII. Public Safety Company shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with Company's use of the Licensed Premises. Company shall take all necessary precautions and shall provide all necessary protection to prevent damage, injury, or loss to (a) all persons accessing portions of the Licensed Premises on which any activities are being performed by or on behalf of the Company; (b) all materials and equipment to be incorporated therein that are under the care, custody, or control of the Company, or the Company's employees, agents, contractors, or subcontractors, regardless of whether such material and equipment is stored on or off the Licensed Premises; and (c) other property on, adjacent to, or in the vicinity of, the Licensed Premises. VIII. Protection of the Environment Company shall not handle, place or store any Hazardous Materials on the Licensed Premises. For purposes of this Permit, "Hazardous Materials" shall mean potentially dangerous hazardous wastes, toxic substances, or related materials, including, but not limited to, pollutants; asbestos; polychlorinated biphenyl (PCB); petroleum or other fuels (including crude oil or any fraction or derivative thereof); underground storage tanks, and substances considered hazardous, toxic, or the equivalent ptusuant to any applicable state, federal or local laws, rules, regulations and /or ordinances. Company shall not create or aggravate any condition upon the Licensed Premises that could present a threat to human health or to the environment. IX. DocumentinI4 Condition of Licensed Premises Company must provide the RE Division with videographic documentation of the condition of the Licensed Premises as they exist before, after installation, and upon removal of, the pipeline. All such video must include a visible date and time stamp indicating when the videography occurred. Company must submit documentation of the pre - installation condition at least five (5) business days prior to the date on which the License Period will commence under Section I of this Permit. Post- installation and removal doCiunentation must be submitted no later than five (5) business days after the last day of the License Period. RE Division staff will distribute copies of the documentation to all appropriate City personnel to determine whether any damage has been done to the Licensed Premises. X. No Impact upon Vegetation Company shall not cut, remove or negatively impact any trees or other vegetation on the Licensed Premises. Company shall conduct all operations in due regard to the surface of the Licensed Premises, and, in addition to any other requirements that may be imposed upon Company as provided by Article 11, above, shall: (i) not access any part of the Licensed Premises which is unpaved during wet conditions; (ii) not use any explosive Page 4 of 10 charges of any kind or nature; (iii) report to the Fire Department of the City any and all fires or other health or safety related conditions observed during the activities hereunder, and shall utilize any and all efforts necessary to prevent and suppress any fires on the Premises; (iv) only conduct activities permitted by this License within the hours of 7 a.m. and 7 p.m.; (v) not place upon the Licensed Premises any truck or other equipment with a gross vehicle weight in excess of 10,000 pounds; and (vi) conduct all operations authorized by this Permit so as not to cause any damage to pipelines, whether water, sewer, gas or product of any type, utility lines, water wells and /or structures of any kind. XI. Minimizing Impact of Utilities The Company acknowledges the potential of the existence of City -owned utilities in the Licensed Premises (including, but not limited to, waterlines, sewer lines, and storm drains and lines) and shall avoid impact upon same. XII. Restoration of Improvements To the extent any road, curb, gutter, irrigation system, utility line, barricade, fence, or any other improvement of any kind or type is destroyed, damaged, or altered in connection with or related to, the Company's activities under this Permit (such activities being prohibited), the Company shall reconstruct and restore such improvement in a good and workmanlike manner to a condition that is equal to or better than the one in which such improvement existed as of the date this Permit is fully executed, as evidenced by the pre - installation video required under Section IX of this Permit. XIII. Restoration of Surface of Licensed Premises Company shall restore, to the satisfaction of City, the surface of the Licensed Premises in the event any damage to the surface and /or vegetation shall be caused, in whole or in part by Company's activities. XIV. Insurance Company shall provide or cause to be provided the insurance described below upon execution of this Permit and maintain same during the term of this Permit. The insurance to be provided hereunder is independent of the indemnity obligations provided in Article XV, below. a. Commercial General Liability Insurance. This coverage must include premises /operations, blowout or explosion, products /completed operations, blanket contractual liability, underground property damage, broad form property damage, independent contractors and personal injury. This coverage shall be a minimum Combined Single Limit of $1,000,000 per occurrence for Bodily Injury and Property Damage. The insurance shall also include coverage for Environment Impairment. b. Excess Liability Insurance. Excess Liability Insurance shall be provided with limits of not less than $5,000,000.00 annual aggregate. Page 5 of 10 C. Worker's Compensation Insurance. In addition to the minimum statutory requirements: (1) Employer's Liability limits of at least $100,000 for each accident, $100,000 for each employee, and a $500,000 policy limit for occupational disease; and (2) The insurer agrees to waive rights of subrogation against the City, its officials, agents, employees, and volunteers for any work performed for the City by the Company; and (3) The Company shall comply with the provisions of with Section 406.096 of the Texas Labor Code and rule 28TAC 110.1 10 of the Texas Worker's Compensation Commission. Automobile Liability Insurance. (1) Minimum Combined Single Limit of $500,000 per occurrence for Bodily Injury and Property Damage; and (2) The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of the liability section in Item 2 of the declarations page which includes coverage for hired, leased and non -owned vehicles. e. General provisions (1) All policies shall be endorsed to read "THIS POLICY WILL NOT BE CANCELLED OR NON - RENEWED WITHOUT 30 DAYS ADVANCED WRITTEN NOTICE TO THE OWNER AND THE CITY EXCEPT WHEN THIS POLICY IS BEING CANCELLED FOR NONPAYMENT OF PREMIUM, IN WHICH CASE 10 DAYS ADVANCE WRITTEN NOTICE IS REQUIRED ". (2) Commercial General Liability and Automobile Liability insurance shall be written by companies with A: VIII or better rating in accordance with the current AM Best Key Rating Guide. (3) Commercial General Liability, Automobile Liability, and Excess Liability insurance policies shall be primary and shall name as "Additional Insured" the City and its officials, agents, employees, and volunteers. (4) Certificates of insurance must reflect all coverages and endorsements required by this section. (5) Coverage shall be placed with insurance carriers licensed to do business in the State of Texas or with nonadmitted carriers that have a financial rating comparable to carriers licensed to do business in Texas approved by the City. (6) The insurance requirements set forth in this section and any recovery by the City Pane 6 of 10 of any sum by reason of any insurance policy required under this Permit shall in no way be construed or affected to limit or in any way affect Company's liability to the City or other persons as provided by this Permit or law. XV. Indemnity and Performance Bond A. Indemnification. Company shall and hereby does indemnify, defend and hold harmless the City, its officers, agents, elected officials and employees fi-om all suits, losses, damages, actions or claims of any character, name and description brought for or on account of any injuries or damages received or sustained by any person, persons of- property on account of or related to the operations of the Company, its agents, employees, contractors or subcontractors; or on account of or related to any action or omission of Company, its agents, employees, contractors or subcontractors, related to the rights licensed herein, and /or the occupation of City owned property or property interests by Company, its agents, employees, contractors and subcontractors, in connection with or related to the obligations or rights of the Company under this Permit; and shall pay any loss, damage, claim and any judgment, with costs, and including reasonable attorneys' fees and costs related thereto, which may be incurred by, occasioned upon or be obtained against the City, its officers, agents, elected officials and employees, growing out of of- related to such injury or damage, INCLUDING BUT NOT LIMITED TO, LIABILITY CLAIMS, LOSSES, AND DAMAGES ARISING FROM OR CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF ANY KIND, TYPE OR DEGREE, OF THE CITY, ITS OFFICERS, AGENTS, ELECTED OFFICIALS AND EMPLOYEES. IT IS UNDERSTOOD AND AGREED THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION IS AN INDEMNITY EXTENDED BY THE COMPANY TO INDEMNIFY AND PROTECT THE CITY OF DENTON, TEXAS ITS OFFICERS AGENTS ELECTED OFFICIALS AND EMPLOYEES FROM AND AGAINST ITS OWN NEGLIGENCE WHETHER THAT NEGLIGENCE IS THE SOLE OR THE CONTRIBUTING OR CONCURRENT CAUSE OF THE RESULTANT LIABILITY CLAIM, LOSS OR DAMAGE. B. Performance Bond. Company shall provide a performance bond, in the amount of Fifty Thousand Dollars ($50,000.00), to secure Company's obligations under this License. The performance bond shall be executed by a surety company authorized to do business in the State of Texas in accordance with Chapter 2253 of the Texas Government Code. XVI. Prohibition Against Liens The Company shall not do any act or make any contract that may be purported to create or be the foundation of any lien on, or any interest in, the Licensed Premises. Any such act, contract, or lien attempted to be created shall be void. Should any purported lien on the Licensed Premises be created or filed, the Company shall, at its sole expense, liquidate and discharge same within ten (10) business days after notice from the City to do so. Page 7 of 10 XVIL Notices All notices required or permitted under this Permit shall be conclusively determined to have been delivered (i) when hand- delivered or provided by telephonic facsimile to the other party, its agent, employee, servant, or representative, or (ii) the date of deposit o£ in a regularly maintained receptacle for the United States Mail, postage prepaid, return receipt requested, at the address stated below or to such other address as one party may from time to time notify the other in writing. To THE CITY: Paul Williamson Real Estate & Capital Support 901 -A Texas Street Denton, Texas 76209 Facsimile: 940/349 -8951 With a copy to: Anita Burgess City Attorney 215 E. McKinney Denton, Texas 76201 Facsimile: 940/382 -7923 XVIII. Independent Contractor To COMPANY: Mark Grawe EagleRidge Operating, LLC 3500 Oak Lawn, Suite 300 Dallas, Texas 75219 Facsimile: 214.520.2773 With a copy to: Facsimile: It is expressly understood and agreed that Company shall operate as independent entity in each and every respect hereunder and not as an agent, representative, or employee of the City. Company shall have the exclusive control and the exclusive right to control all details and day -to -day operations and activities relative to operation of the Company and installation of the pipeline and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Company acknowledges that the doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, servants, employees, contractors, subcontractors, licenses, and invitees. Nothing contained in this Permit shall be construed as the creation of a partnership or joint enterprise between the City and Company. XIX. Prohibition Against Assignment; Right of Termination The Company may not sell, assign, or otherwise transfer any of its rights or obligations under this Permit without the prior, written consent of the City. Any such attempted assignment without the City's consent shall be void. The City may terminate this Permit at any time without cause upon ten (10) days notice to Company. Page 8 of 10 XX. Compliance with Laws and Regulations and Permit Terms In operating under this Permit, Company agrees to comply with all applicable federal, state, and local laws, rules, regulations, and ordinances, including all City ordinances, charter- provisions, and rules, regulations, and requirements of the City's Police, Fire, Code Compliance, Engineering, Transportation, Public Works, and Health Departments, or any other department of the City. Company will not do or suffer to be done anything on the Licensed Premises during the term of this Permit in violation of any of the laws, statutes, ordinances, rules, regulations, charter provisions, directives or requirements referenced in this Permit. If Company (i) uses the Licensed Premises for purposes other than the rights licensed herein; (ii) uses the Licensed Premises in a manner inconsistent with the rights licensed herein; or (iii) breaches or fails to comply with any term or condition of this Permit, as determined reasonably by the City, the City may exercise any and all rights and remedies available to it by law, equity, contract or otherwise, including, without limitation, the right to declare this Permit null and void whereupon Company shall have no further rights of usage of the Licensed Premises and assert any other rights available to City. The rights granted by this Permit convey no interest in the real property or real property interests comprising the Licensed Premises. No rights to any other lands or interests owned by City, or located within the City, other than the Licensed Premises, are provided herein. XXI. Taxes The Company acknowledges and agrees that it shall be solely responsible for paying all taxes assessed or imposed by any governmental entity in connection with the construction, installation, operation, maintenance, repair, or reconstruction of the pipeline and with the use of the Licensed Premises related to activities within the scope of this Permit. XXII. Headings The section headings contained herein are solely for convenience in reference and are not intended to define or limit the scope of any provision of this Permit. XXIII. Choice of Law; Venue This Permit shall be governed by and construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Permit, sole and exclusive venue for such action shall lie in courts of competent jurisdiction located in Denton County, Texas. XXIV. Governmental Powers It is understood and agreed that by execution of this Permit, City does not waive or surrender any of its governmental powers or immunities. Page 9 of 10 XXV. Authorization By executing this Permit, Company's agent affirms that he or she is authorized by the Company to execute this Permit and that all representations made herein with regard to Company's identity, address and legal status are true and correct. XXVI. Entirety of Allreement This instrument (including all attachments, schedules, and exhibits attached hereto) constitutes the entire understanding and agreement of the City and Company as to use of the Licensed Premises. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with the terms and conditions of this Permit. This Permit shall not be amended unless agreed to in writing and authorized by both parties. By executing this Permit, Company agrees to and accepts the terms, conditions and provision contained herein. IN WITNESS WHEREOF, the parties hereto have executed this Permit this day of , 2013 in Denton, Denton County, Texas. THE CITY OF DENTON, TEXAS By ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: w George C. Campbell City Manager COMPANY: Eagle idge Ming, LLC By Mark, Grawe, Chief Operating Officer Page 10 of 10 f f 9 f " 1 " 1 - R F- z z t i t. . .. . . 0 A -1 . . . . . . . . . . . �K! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ou HE, 5 M MW - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - -- - - - - - - - - - - - - - — - - - - - - - - - - - I - - - - - - - - - - - - - - - - - - - - - - - - 1� ---------- LOW, A 88.547 acres the "Land" Wy Instl ijt No. 2005-6056 2 Real Property Records, Denton Cpunty, Texas 12 I Z 7 fl - - - - - - - - - - fz OA Ix W1 yg , (71MAY11,11011,Yd V-,1 KL EXHIBIT "A" attachment to Temporary Access Permit y a� r a a t YE s p � a Em O e—i 00 O a— f.• Q N O CN ra - LOcation • CD �y i _ cT o� v a a O e—i 00 O a— f.• Q N O CN ra - LOcation • CD �y AGENDA DATE DEPARTMENT: ACM: SUBJECT AGENDA INFORMATION SHEET October 15, 2013 Materials Management Bryan Langley i -A Questions concerning this acquisition may be directed to Elton Brock at 349 -7133 Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Cooperative Purchasing Program Agreement with the University of North Texas Murphy Center for Entrepreneurship under Section 791.001 of the State of Texas Government Code, to authorize City of Denton contracts for the purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 5382 - Interlocal Agreement with the University of North Texas Murphy Center for Entrepreneurship in the amount of $26,400). FILE INFORMATION This Agreement will allow the City of Denton to contract with the University of North Texas Murphy Center for Entrepreneurship (UNT) to conduct a new training initiative known as the Leadership Excellence and Enhancement Program (LEEP). The goal of the LEEP program is to develop leadership competencies in employees, improve cross functional communication, and implement organizational improvements. LEEP consists of twenty -two (22) modules of training which will be offered in 2014 to a small number of City employees. The professor(s) will also help guide the participants as they work on a project designed to address a real City challenge. The kickoff will be January 22, 2014, and classroom training will extend through December 2014. If needed, this Agreement will allow for extension of training and /or project guidance through March 1, 2015. Section 791.001 of the Texas Government Code requires that all interlocal contracts must be authorized by the governing body, regardless of the dollar amount. The only exception to this is municipally owned electric utilities -these entities have a $100,000 threshold before authorization by the governing body is required. RECOMMENDATION Approve an Interlocal Cooperative Purchasing Program Agreement with the University of North Texas Murphy Center for Entrepreneurship in the amount of $26,400. PRINCIPAL PLACE OF BUSINESS University of North Texas Murphy Center for Entrepreneurship Denton, TX Agenda Information Sheet October 15, 2013 Page 2 ESTIMATED SCHEDULE OF PROJECT The University of North Texas Murphy Center for Entrepreneurship will perform the tasks detailed in the Interlocal Cooperative Purchasing Program Agreement during the time period of January 22, 2014 through March 1, 2015. The Agreement may be renewed upon written agreement by both parties. FISCAL INFORMATION The Leadership Excellence and Enhancement Program will be funded from the Human Resources Training account (150001.7820). EXHIBITS Exhibit 1: Ordinance and Interlocal Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance 1 -.CIS -File 7382 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL COOPERATIVE PURCHASING PROGRAM AGREEMENT WITH THE UNIVERSITY OF NORTH TEXAS MURPHY CENTER FOR ENTREPRENEURSHIP UNDER SECTION 791.001 OF THE STATE OF TEXAS GOVERNMENT CODE, TO AUTHORIZE CITY OF DENTON CONTRACTS FOR THE PURCHASE OF VARIOUS GOODS AND SERVICES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE (FILE 5182- INTERLOCAL AGREEMENT WITH THE UNIVERSITY OF NORTH TEXAS MURPHY CENTER FOR ENTREPRENEURSHIP IN THE AMOUNT OF $26,400). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute the Interlocal Cooperative Purchasing Program Agreement with the University of North Texas Murphy Center for Entrepreneurship under Section 791.001 of the Texas Government Code, a copy of which is attached hereto and incorporated by reference herein (the "Agreement'). SECTION 2. The City Manager, or his designee, is authorized to expend funds pursuant to the Agreement for the purchase of various goods and services. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5382 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 2- ORD- Interlocal Agreement With I TNT Murphy Center for Entrepreneurship INTERLOCAL AGREEMENT This Interlocal Agreement (the "Agreement ") is made and entered into this 15th day of October, 2013, between The City of Denton, Texas, a political subdivision of the State of Texas (hereinafter "CITY") and the University of North Texas, Murphy Center for Entrepreneurship, , and an agency of the State of Texas ( "UNT "). WHEREAS, both the City and the State of Texas have the authority to enter into this Agreement pursuant to Chapter 791, Texas Government Code; and WHEREAS, the service agreement for Leadership Excellence and Enhancement Workshops ( "Service Agreement ") contemplated under this Agreement is of mutual interest and benefit to UNT and to the CITY and will further the instructional and technical objectives of UNT in a manner consistent Nvith its status as an agency of the State of Texas; and WHEREAS, it is mutuallv beneficial to both parties to execute this Agreement whereby each entity can achieve common objectives relating to the professional development of the employees of the City of Denton, and in the interest of saving the City of Denton and State of Texas taxpayer funding; and NOW THEREFORE, in consideration of the mutual representations, terms and covenants hereafter set forth, the parties hereby agree as follows: 1. STATEMENT OF WORK. UNT agrees to use its reasonable efforts to perform the Leadership Excellence and Enhancement Workshop(s) described in the Service Agreement appended hereto and incorporated as Attachment 1. 2. PROGRAM COORDINATOR. The Program will be super-,ised by Dr. Don Powell, Professor (a The University of North Texas. 3. PERIOD OF PERFORMANCE. UNT will perform the program and tasks detailed in the "Service Agreement" during the period of January 22, 2014 through March Ist, 2015. This Agreement may be renewed only by written agreement executed by both parties. 4. TOTAL AMOUNT OF THE CONTRACT. The City agrees to pay UNT the fixed price of $26,400 (twenty six thousand and four hundred dollars), as agreed to in the payment schedule, listed below. 5. PAYMENT SCHEDULE. The City shall make payments upon receipt of invoices, in accordance Nvith the statutory- provisions of Texas Government Code; Chapter 2251.The payment schedule indentified below, strictly follows a milestone performance schedule, in meeting of the stated DELIVERABLES (_attachment 1), and in the approval of invoices submitted to the City. 30% ($7,920) due upon execution of the Agreement, and receipt of invoice 17.5% ($4,620) due upon receipt of quarterly invoice starting May 1, 2014 17.5% ($4,620) due upon receipt of quarterly invoice starting August 1, 2014 17.5% ($4,620) due upon receipt of quarterly invoice starting November 1, 2014 17.5% ($4,620) due upon receipt of quarterly invoice starting March 1, 2015 Invoices shall be sent to the following address: Name: City of Denton, Accounts Payable Department Address: 215 East :NIchinnev Street City State Zip: Denton, TZ 76201 Company Rep Name: Accounts Payable Phone: 940- 349 -8223 Email: accountspayabhe ( a cityofdenton.com 6. TERMINATION. This agreement may be terminated by either party, upon sixty (60) days prior written notice 7. BREACH / OPPORTUNITY TO CURE. The parties hereto expressly covenant and agree that in the event either party is in default of its obligations herein, the party not in default shall provide to the party in default at least thirty (30) days written notice to cure said default before exercising any of its rights as provided for in this Agreement. 8. LIABILITY. The parties to this Agreement and their respective officers and employees shall not be deemed to assume any liability for the acts, omissions and negligence of the other party. 9. DISCLAIMER OF LIABILITY. TEES MAKES NO REPRESENTATIONS AND EZTENDS NO WARRANTIES OF ANY hIND, EITHER EZ -PRESS OR IMPLIED IN CONNECTION WITH THE TECHNICAL REPORTS, INVENTION DISCLOSURES OR RESEARCH DATA FURNISHED UNDER THIS AGREEMENT. THERE ARE NO EZ -PRESS OR Page 1 of 5 OGC app. 6/2006 IMPLIED W ARRANTIES OF :NIERCH ANT ABILITY OR FITNESS FOR A P ARTICtT AR PURPOSE, OR THAT USE OF SUCH MATERIALS OR :NIODIFIC ATION OF SUCH :NIATERLALS WILL NOT INFRINGE ON ANY PATENT, COPYRIGHT, TR =,1ARh, OR OTHER PROPRIETARY RIGHT. 10. FORCE MAJUERE. Except for the obligation for the payment of money, if either party fails to fulfill its obligations hereunder when such failure is due to an act of God, or other circumstance beyond its reasonable control, then said failure shall be excused for the duration of such event and for such a time thereafter as is reasonable to enable the parties to resume performance under this Agreement. 11. DISPUTE RESOLUTION. The City must use the dispute resolution process provided in Chapter 2260 of the Texas Government Code to attempt to resolve a dispute arising under this contract and such process is a required prerequisite to suit in accordance Nvifli Chapter 107, Texas Civil Practice and Remedies Code. The City must submit written notice of a claim of breach of contract under this chapter to UNT. UNT is an agency of the State of Texas, and the CITY is a local - government entity and nothing in this Agreement waives or relinquishes the right of either party to claim any exemptions, privileges and immunities as may be provided by law. 12. REMEDIES. This Agreement shall be construed by and governed by the laws of the State of Texas. Venue for any legal action necessary to enforce the Agreement will be in Denton County, Texas. No remedy herein conferred upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by A ny party of any right, power or remedy hereunder shall preclude any other or further exercise thereof. 13. ENTIRE REPRESENTATION. This Agreement contains the entire agreement between the parties and supersedes any prior oral or written agreements, commitments, understandings, or communications with respect to the subject matter of the Agreement. No amendments or modification of this Agreement shall be effective unless set forth in writing executed by duly authorized representatives of each party. This Agreement shall be construed in accordance with the laws of the State of Texas. 14. WAIVER. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any right or remedy, or future exercise thereof. 15. ASSIGNMENT. This Agreement may not be assigned in whole or in part by any of the Parties without prior written consent of the other Party. 16. SEVERABILITY. In the event that any section, paragraph, sentence, clause or provision hereof is held by a court of competent jurisdiction to be invalid, such shall not affect the remaining portions of this Agreement and the same shall remain in full force and effect. 17. AMENDMENTS. This Agreement may be amended from time to time by written amendment by both parties. 18. NOTICE. Any notice required to be given in cormec6c)n Nvifli this Agreement shall be in writing and shall be deemed effective if hand delivered, or if sent by United States certified mail, return receipt requested, postage prepaid, or if sent by private receipted courier guaranteeing same -day or next -day delivery, addressed to the respective party at its address provided below. If sent by U.S. certified mail in accordance wifli this Section, such notices shall be deemed given and received on the earlier of (a) actual receipt at the address of the named addressee, or (b) on the third (3rd) business day after deposit wide the United States Postal Service. Notice given by any other means shall be deemed given and received only upon actual receipt at the address of the named addressee. University of North Texas Murphy Center for Entrepreneurship Denton, TZ 76205 Attn: Dr. Finley Graves, Dean Telephone: Email: City of Denton Purchasing Department 90113 Texas Street Denton, Texas 76201 Attn: Purchasing Manager Telephone: 940 -349 -7133 Email: purchasin.g(a cityofdenton.com 19. NO THIRD PARTY BENEFICIARIES. For purposes of this Agreement, including its intended operation and effect, the parties specifically agree and contract fliat (1) the Agreement only affects matters disputes between the parties to this Agreement, and is in no way intended by the parties to benefit or oflierwise affect any third person or entity notyviflistanding the fact that such third person or entity may be in contractual relationship yvifli the State or City, or both; and (2) the terms of this Agreement are not intended to release, either by contract or by operation of law, any third person or entity from obligations owed by them to either the State or City. Page 2 of 5 OGC app. 6/2006 30. ENTIRETY OF AGREEMENT. This Agreement represents the entire understanding between the County and City and supersedes all other negotiations, representations or agreement, written or oral, relating to this Agreement. The parties have caused this Agreement to be executed by their duly authorized representative. University of North Texas Dr. Finlev Graves, Dean College of Business Dr. Anthonv Mendes, Director Murphy Center Dr. Don Powell, Program Coordinator City of Denton, Texas Elton D. Brock, RIBA, C.P.M. Manager, Materials Management ACKNOWLEDGEMENT STATE OF TELLS j COLiNTY OF DENTON j Date Date Date Date This instrument was acknowledged before me on the day of behalf of the City of Denton, Texas. 2013 by Notary Public in and for the State of Texas Page 3 of 5 OGC app. 6/2006 on Attachment 1 University of North Texas — Service Agreement URF&WEB" UN TER f"O UNT Date: September 28, 2013 Customer: Cite of Denton Human Resources Department 601 E. Hickon -, Suite A Denton, TX 76205 Program Title: Leadership Excellence and Enhancement Workshop WORK TO BE COMPLETED The Murphy Center for Entrepreneurship (henceforth called the " Murphy Center") at the University of North Texas will deliver through its associates, a professional development program for the employees of the Cite of Denton on their premises located at 601 E. Hickon Denton TX 76205. The program consists of twenty -two modules. "Leadership Excellence" will be the central themes of these modules. IRa@ Rmaamr _74 1maCV_1aI DIM a101a:Mr_1a1011am The agreement begins with City of Denton's acceptance of this proposal and ends with the deliven- of all the modules by the Enterprise Center. The Murphy- Center and Cite of Denton agree to begin the program on Januan_- 22, 2014 with completion by March 1, 2015. These dates may be altered by mutual agreement of the parties. The Cite of Denton is responsible for providing appropriate facilities, adequate audio - visual, computer equipment, cite employee computer access, projection s -\-stems, etc., for successful deliven- of the program. Participant binders and PowerPoint Masters will be provided by The Murphy Center. The City of Denton is responsible for copying the Masters for inclusion in participant binders. Participants are responsible for their own computers and any other learning support materials they choose to bring to the sessions. Dr. Don Powell, Professor, UNT, will be the Program Coordinator. He will be responsible for managing, and coordinating the professional development. Modules will be delivered by members of the faculty of the Universit-\- of North Texas. Should the Murphy Center supplement the professional development resources, such alterations will be made at no additional charge to the Citv of Denton. This is a fixed price agreement to provide professional development services to a maximum of 12 City of Denton participants. The price includes all services and professional development materials described herein. The price for each training module provided by The Murphy Center is $1,000 USI), administrative overhead for the program (15 %) is $3,300, and contingency (5 %) is $1,100. Hence, total cost of the program to the City of Denton is $26,400.00 (twenty six thousand and four hundred dollars). Payment is due as per inyoice(s), with 30% upfront (Januan- 22, 2014), and four equal quarterly payments for the remaining 70 %, starting in Mai- 1, 2014. Page 4 of 5 OGC app. 6/2006 Page 5 of 5 OGC app. 6 /2006 s:\ I egaRour documentsViiis eel I aneous\l 3\attri (is midtex-i-rin 2013 -1 -ais accompanying reso I tit ion-final- 100 11 3,doc Coi'�sei'0 Agei,Ai FF AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Legal Department CA: Anita Burgess, City Attorney SUBJECT: Consider approval cif a resolution for a change in Atmos Energy Corporation, Mid- Tex Division's ("Arnios") rates as a result of settlement between Atmos and the Atmos Texas Municipalities ( "A "TM " ") under the rate review mechanism; and providing an effective date. BACKGROUND: The City is a member of the Atmos Texas Municipalities ("ATM"). The ATM group was organized by a number of municipalities served by Atmos and has been represented by the law firm of Herrera & Boyle, I)LLC' (through Mr. Alfred R. Herrera). ATM also retained the services of a consulting firm, Utilitech, Inc. (Mr. Mike Brosch and Mr. Steve Carver) to assist in reviewing an application submitted by the Mid-'I"ex Division of Atmos Energy ("Atmos") that seeks to change Atrnos' rates. The firm of Utilitech has also participated in prior rate cases involving Atmos. In the summer of 2013, Atmos and ATM entered into an agreement that approved a process for calculating annual changes to Atmos' rates under a tariff` called the Rate Review Mechanism. Atmos submitted its RRM package to the cities on or around July 15, 2013. Atmos requested an increase in rates on a system-wide basis of $22.7 million. Atmos' requested amount of $22.7 million includes a $3 million reduction that is a component of the RRM tariff. Without the reduction, Atmos' request would have been $25.7 million. After reviewing Atmos' rate-filing package, experts retained by ATM concluded in a preliminary report that an increase of only $8.5 million was supported by Attrios' data. ATM's experts' recommendations focused on Atmos' Operations and Maintenance expenses, Medical and Dental Benefits, Insurance expenses, Tax Adjustments, Capital Structure and Cost of Debt, and Regulatory Assets. Following a series of settlement negotiations between Atmos' experts and ATM's experts, and the back and forth that accompanies such negotiations, Atmos offered to resolve this matter for an increase of $16.6 million, a $6.1 million decrease from its original proposal. In response to ATM's request, and as part of its settlement offer, Atmos also agreed to postpone the effective date of the increased rates by two weeks, which has the effect of reducing its total system-wide increase by about $300,000.00. Thus, at this juncture, the ATM cities' options are as 1`61lows: Qption 1. To deny Atmos' requested increase and approve no increase; Option 2. 'To deny Ati-nos' requested increase and approve an increase of $8.5 million, based on ATM's consultants' report; or Option 3. To deny Atmos' requested increase of $22.7 million but approve an increase of $16.6 million. sAlegakour docLiiiient5 \iiiiscelhiiieotis\13\atiiios michex-ri-111 2013 -1 -ais accompanying re SO ILL fiffll-t-11MI-100 I I 3.doc Note that under Option I and Option 2, Atmos has the right to appeal the ATM cities' decisions to the Railroad Commission of Texas (Commission) and pending such an appeal would have the right to immediately implement its proposed increase of $22.7 million, subject to refund if the Commission's review later Finds it inappropriate. In an appeal to the Commission, Atmos would in all likelihood argue that the costs of appeal should be borne by only the ATM cities. Given the Commission's tendency to err in favor of' utilities, Atmos would likely prevail. An appeal would significantly increase the burden on ratepayers by adding rate case expenses, which would include both ATM's and Atmos' costs of preparing and prosecuting the appeal, and the costs of a hearing. Also, there is a substantial risk that the Commission would grant Atmos a greater increase than the currently proposed settlement arnount. RECOMMENDATION: After a series of negotiations with Atmos, and given the risks of continued litigation of this matter, ATM's special counsel recommends approval of an increase of $16.6 million. While this amount is materially higher than ATM's experts' preliminary report suggests, if the A" 'M cities reject Atmos' settlement offer, Atmos would appeal the cities' decision to reject their original request to the Commission, and there are a number of contested issues whose outcome would be uncertain in an appeal. Also, an increase of $1.6.6 million is within the range of possible outcomes on appeal, particularly in light of the many rulings the Commission has issued that favor the utilities over ratepayers. Therefore, given the cost of litigation, and the risks of an unfavorable outcome at the Commission, special counsel advises ATM to accept a settlement increasing rates by $16.6 million which is about 27% less than Atmos' full requested increase. The rate schedules to accomplish the increase are attached to the Resolution approving the increase. Approval of this increase in rates increases an average customers' total bill as follows: Residential Customer: Commercial customer: Industrial/Transportation Customer $0.74/month and 1.75% overall. $2.16/month and 1.011 % overall. $53.65/month and 2,02% overall. The attached Resolution directs Atmos to reimburse ATM's rate-case expenses and also establishes Atmos' Pension and Other Post Employment Benefits for purposes of establishing the benchmark. for Pension /C PEB costs. Attachment: 1. Resolution 2 of 2 Anita Burgess., "ity Attorney sAegakour doctunentsVeso I uti on s\1 3 \at mos rindtex-rain 201:3 -2- resolution approving settlement -I inal- 1001 13.docx R.ESOLUfION NO. AN RESOLUFION BY J14E CITY Of' DENTON, 'TEXAS ("C]'I'Y"), APPROVING A CHANGE IN 11113 RA'1'ES OFATMOS ENERGY CORPORAT]ON, MID-J` EX DIVISION ("A'I'MOS") AS A RESULT' OF A SET "I'LEMEN-l"BE'rWEEN AJ'MOS ANDJ'HE A1`M.OS 'I'EXAS MUNICIPALITIES ("A'I'M") UNDER 1`1113 RAT'E REVIEW MECHANISM; FINDING 111E RAT'ES SE] BY '11113 A1-I`ACf-IED 'I'ARIFFS `1`0 BE JUST` AND REASONABLE; DIRECTING ATMOS ENERGY '1`0 REIMBURSE 41-113 CI 'Y'S RA'I`E- CASE EXPENSES; FINDING J`HAT` THE MI E'I'ING COMPLIED W111-1 11-113 OPEN MEE'I'INGS ACT'; DECLARING AN EFFEC'f IVE DATE; AND REQUIRING DEt,IVERY OF TT-IE R.ESOLUJ`ION'fOTHE COMPANY AND LEGAL COUNSEL. WHEREAS, the City of Denton, 'I I exas ("City") is a regulatory authority under the Gas Utility Regulatory Act ("GtJR-A") and under § 103.001 of GURA has exclusive original jurisdiction over Atmos Energy Corporation - Mid -Tex Division's ("Atnios") rates, operations, and service of a gas utility within the municipality; and WHEREAS, Section 103,021 of GtJRA authorizes the City to obtain infori-nation from Atmos as necessary to make a determination of the basis for the Atmos' proposed increase in rates; and WHEREAS, Section 103.022 of GURA provides that Atmos shall reimburse the City its reasonable cost of engaging personnel to assist it in reviewing Atmos' application; and WHEREAS, the City has participated in prior cases regarding Atmos as part of a coalition of cities known as the Atmos Texas Municipalities ("ATM"); and WI-JEREAS, the Rate Review Mechanism ("RRM") for 201.3 that Atmos filed with the City Secretary on or around July 15, 2013 proposed a system -wide increase of $22.7 million; and WHE,Rf. AS, experts representing A]"M have analyzed data furnished by Atmos and have interviewed Atmos' management regarding the RRM; and WHEREAS, it is necessary to establish the benchmark cost for Pensions and. Other post Employment Benefits (Petision/OPEB); and WHEREAS, on September 26, 2013, ATM and Atmos entered into a settlement agreement which would provide for a net increase of $16.6 million. 'rhis will cause the rates to increase by $0.74 per month for a typical residential Customer; and WHEREAS, the settlement agreement's net decrease to Atmos' previously filed request would be approximately 27% less than such filed RRM; and WHEREAS, the Steering Committee of A'I'M and its counsel recommend approval of the attached tariffs, set forth as Attachment A; NOW, 11-JEREFORE, sAlegaMur docunientsVeso I utions\1 3\atnios tindi.ex-trin 201 3-2-rcso I tit ion approving settlement-final -1001 13.docx THE COUNCIL 01-,'T.IIE CITY OF DFN'I`ON Flf,"REBY RESOLVES: SECTION I. 'The findings set forth in this Resolution are hereby in all things approved. SECTION 2, The amended tariffs in Attachment A are hereby adopted to become effective on November 1, 2011 SECTION 3. The benchmark for Pension and Other Post Employment Benefits shall be as shown in Atrnos' RRM 2013 Application at Workpapers 1 ,-2.3 and f`-2.3.1, for fiscal year 2013, appended to this Resolution as Attachment B. SECTION ON 4. Atmos is hereby directed to reimburse the City's costs, as part of the Atmos Texas Municipalities, of engaging counsel, rate consultants, and other personnel in assisting the City in its investigation of Atmos' Proposed increase in rates. SECTION 5. To the extent any Resolution or Ordinance previously adopted by the City Council is inconsistent with this Resolution, it is hereby superseded. SECTION 6. The meeting at which this Resolution was approved was in all things conducted in strict compliance with the J'exas Open Meetings Act, Texas Government Code, Chapter 551. SECTION 7. It" any one or more sections or clauses of this Resolution is Judged to be unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions of this Resolution and the remaining provisions of the Resolution shall be interpreted as if the offending section or clause never existed. SECTION 8. This Resolution shall become effective from and after its passage. SECTION 9. A copy of this Resolution shall be sent to Aftnos Mid-'I I ex, care of Christopher Felan, Vice President of Rates and Regulatory Affairs, Atmos Energy Corporation, 5420 L,BJ Freeway, Suite 1600, Dallas, Texas 75240 and to Mr. Alfred R. Herrera, Herrera & Boyle, PLLC, 816 Congress Avenue, Suite 1250, Austin, Texas 78701. PASSED AND APPROVED this the day 2013. ATTEST: . . JENNIFER WALTERS, CITY SECRETARY M 2 I MARK A. BURROUGHS, MAYOR sAlegahour d0CUmenIs\reso I Lit ions\1 3\atiTlos micitex-i-mi 201 3-2-rCSO ILI it Oil approving sett I ement-fina I -100 113. d ocx APPROVED AS TO LEGAL FORM: ANITA B�U[WESS, CITY A'FFORNEY BY: Rate Schedule: R — Residential Sales Rate Schedule: C — Commercial Sales Rate Schedule: I — Industrial Sales Rate Schedule: T — Transportation Sales Rate Schedule: WNA — Weather Normalization Adjustment ■ MID-TEX DIVISION ATMQS ENERGY CORPORATION RATE SCHEDULE: R — RESIDENTIAL SALES APPLICABLE TO: ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE: Bills Rendered on or after 11/01/2013 Application Applicable to Residential Customers for all nmdune| gas provided at one Point of Delivery and measured through one meter. Type of Service Where service ofthetypedesinsdbyCustomerisnoto|naadyovai|ob|estthePointcf Delivery, additional charges and special contract arrangements between Company and Customer may be required prior to oen/io* being furnished. Monthly Rate Customer's monthly bill will be oa|ou|abad by adding the following Customer and Cof charges to the amounts due under the riders listed below: | Charge | Amount | Gas Cost Recovery: Plus an amount for gas costs and upstream transportation costs calculated in accordance with Part (a) and Part (b), respectively, of Rider GCR. Weather Normalization Adjustment: Plus or Minus an amount for weather normalization calculated in accordance with Rider VVNA. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated Tax Adjustment: Plus an amount for tax calculated in accordance with Rider TAX. Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s) Agreement An Agreement for Gas Service may be required. Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company's Tariff for Gas Service. 1 Reference Rider CEE - Conservation And Energy Efficiency as approved in GUD 10170. Surcharge billing effective July 1 2013. MID-TEX DIVISION ATK8[)S ENERGY CORPORATION RATE SCHEDULE: C — COMMERCIAL SALES APPLICABLE TO: ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE: Bills Rendered on or after 11/01/2013 Application Applicable to Commercial Customers for all natural gas provided at one Point of Delivery and measured through one meter and to Industrial Customers with an average annual usage of less than 30,000 Ccf� Type of Service Where service of the type desired by Customer is not already available at the Point of De|ivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's monthly bill will be om|cu|ebsd by adding the following Customer and Ccf charges to the amounts due under the riders listed below: Charge I Amount Gas Coat Recovery: Plus on amount for gas costs and upstream transportation costs calculated in accordance with Part (a) and Part (b), respectively, of Rider GCR. Weather Normalization Adjustment: Plus or Minus on amount for weather normalization calculated in accordance with Rider VVl Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s) Agreement Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company's Tariff for Gas Service. 1 Reference Rider CEE - Conservation And Energy Efficiency as approved in GUID 10170, surcharge billing effective July 1.2V1l MID-TEX DIVISION AT00QS ENERGY CORPORATION RATE SCHEDULE: I — INDUSTRIAL SALES APPLICABLE TO: ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE: Bills Rendered on or after 11/01/2013 Application Applicable to Industrial Customers with a maximum daily usage (MDU) of less than 3,500 MMBtu per d for all natural gas provided at one Point of Delivery and measured through one meter.. Service f Industrial Customers with an MDU equal to or greater than 3,500 MMBtu per day will be provided Company's sole option and will require special contract arrangements between Company and Customel Type ofService Where service of the type desired by Customer is not e|naody available at the Point of De|ivery, additional charges and special contract arrangements between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's monthly bill will be calculated by adding the following Customer and K8MBhu charges to the amounts due under the riders listed below: Gas Cost Recovery: Plus an amount for gas costs and upstream transportation costs calculated in accordance with Part (o) and Pod (b), respectively, of Rider GCR. Franchise Fee Adjustment: Plus an amount for franchise fees calculated in accordance with Rider FF. Rider FF is only applicable to customers inside the corporate limits of any incorporated Surcharges: Plus an amount for surcharges calculated in accordance with the applicable rider(s) Curtailment Overpull Fee Upon notification by Company of an event of curtailment or interruption of Customer's deliveries, Customer will, for each MMBtu delivered in excess of the stated level of curtailment or interruption, pay Company 200% of the midpoint price for the Katy point listed in Platts Gas Daily published for the applicable Gas Day in the table entitled "Daily Price Survey." Replacement Index In the event the "midpoint" or "common" price for the Katy point listed in Platts Gas Daily in the table entitled "Daily Price Survey" is no longer published, Company will calculate the applicable imbalance fees utilizing a daily price index recognized as authoritative by the natural gas industry and most closely approximating the applicable index. kU|DTEX DIVISION ATMOS ENERGY CORPORATION RATE SCHEDULE: I — INDUSTRIAL SALES APPLICABLE TO: ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE: Bills Rendered on or after 11f01/2013 Agreement An Agreement for Gas Service may be required. Notice Service hereunder and the nsbaa for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company's Tariff for Gas Service. Special Conditions In order to receive service under Rate 1, Customer must have the type of meter required by Company. Customer must pay Company all costs associated with the acquisition and installation of the meter. MID-TEXDIVISION ATMOS ENERGY CORPORATION RATE SCHEDULE: T — TRANSPORTATION APPLICABLE TO: ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE: Bills Rendered on or after 11/01/2013 Application 4pp|icab|e, in the event that Conlpany has entered into a Transportation Agreement, to a Customer directly connected to the AtrnOs Energy Corp., Mid-Tex Division Distribution System (Customer) for the transportation of all natural gas supplied by Customer or Customer's agent at one Point of Delivery for use in Customer's facility. Type of Service Where service of the type desired by Customer is not already available at the Point of Oe|iv8ry, additional charges and special oontraotornanQementa between Company and Customer may be required prior to service being furnished. Monthly Rate Customer's bill will be calculated by adding the h}Umming Customer and &1M13tu charges to the amounts and quantities due under the riders listed below: Imbalance Fees All fees charged to Customer under this Rate Schedule will be charged based on the quantities determined under the applicable Transportation Agreement and quantities will not be aggregated for any Customer with multiple Transportation Agreements for the purposes of such fees, Monthly Imbalance Fees Customer shall pay Company the greater of (i) $0.10 per MMBtu, or (ii) 150% of the difference per MMBtu between the highest and lowest "midpoint" price for the Katy point listed in Platts Gas Daily in the table entitled "Daily Price Survey" during such month, for the MMBtu of Customer's monthly Cumulative Imbalance, as defined in the applicable Transportation Agreement, at the end of each month that exceeds 10% of Customer's receipt quantities for the month, MID-TEX DIVISION ATMOS ENERGY CORPORATION . .. . ....... . __._. ........ . . . ....... ......... . ........... _ . . . .............. . RATE SCHEDULE: T — TRANSPORTATION . ......... ....__.__........v...__ _.. _...__.. _ . . .. . ... ......... . _______..._._ ............... . . . . . . . ... . .. . ....... . APPLICABLE TO: ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF DALLAS AND UNINCORPORATED AREAS . . ...... ........... ___._.__._ - — ----- - . _ _ - — --- - ---------- I - --- — ---------- - . ... . ........... EFFECTIVE DATE: Bills Rendered on or after 11/01/2013 ........ .. ....... .... . ........ . .. . .. . ........... . . _ . ....... . .. Curtailment Overpull Fee Upon notification by Company of an event of curtailment or interruption Of Customer's deliveries, Customer will, for each MMBtu delivered in excess of the stated level of curtailment or interruption, pay Company 200% of the midpoint price for the Katy point listed in Platts Gas Daily published for the applicable Gas Day in the table entitled "Daily Price Survey." Replacement Index In the event the "midpoint" or "common" price for the Katy point listed in Platts Gas Daily in the table entitled "Daily Price Survey" is no longer published, Company will calculate the applicable imbalance fees utilizing a daily price index recognized as authoritative by the natural gas industry and most closely approximating the applicable index. Agreement Notice Service hereunder and the rates for services provided are subject to the orders of regulatory bodies having jurisdiction and to the Company's Tariff for Gas Service. Special Conditions In order to receive service under Rate T, customer must have the type of meter required by Company, Customer must pay Company all costs associated with the acquisition and installation of the meter. The Commodity Charge per Ccf (100 cubic feet) for gas service set forth in any Rate Schedules utilized N y the cities • the Mid-Tex Division service area for determining normalized winter period revenues shall be adjusted by an amount hereinafter described, which amount is referred to as the "Weather Normalization Adjustment." The Weather Normalization Adjustment shall apply to all temperature sensitive residential and commercial bills based on meters read during the revenue months of November through April, The five regional weather stations are Abilene, Austin, Dallas, Waco, and Wichita Falls, Ri Commodity Charge rate of temperature sensitive sales for the ith schedule or classification. HSFi heat sensitive factor for the ith schedule or classification divided by the average bill count in that class NDD billing cycle normal heating degree days calculated as the simple ten-year average of actual heating degree days. ADD billing cycle actual heating degree days. Bli base load sales for the ith schedule or classification divided by the average bill count in that class WNAj = WNAFi x qij P I ill I I I I 1 1:111 i I I Ill i i i I i I I i , 1 MID-TEXDIVIS0N ATMOS ENERGY CORPORATION RIDER: WNA — WEATHER NORMALIZATION ADJUSTMENT ALL CUSTOMERS IN THE MID-TEX DIVISION EXCEPT THE CITY OF APPLICABLE TO: DALLAS AND UNINCORPORATED AREAS EFFECTIVE DATE: Bills Rendered on or after 11/01/2013 __.____.__________.. = ... . . ........ . ....... . . Base Use/Heat Use Factors Residential Commercial Base use Heat use Base use Heat use Weather Station Ccf CdYHIlD Ccf Ccd7HI}D Abilene 9.97 01318 96.50 0.5659 Austin 11.05 01262 189.53 0,7195 Dallas 13.13 01832 171.84 O�8797 VV000 9.78 0.1262 11T60 05774 Wichita 10.99 OA297 107.70 0,5041 Falls Weather Normalization Adi On or before June 1 of each year, the company posts on its website at atmosenergy.com/mtx-wna, in Excel format, a Weather Normalization Adjustment (WNA) Report to show how the company calculated its WNAs factor during the preceding winter season. Additionally, on or before June 1 of each year, the company files one hard copy and a Excel version of the WNA Report with the Railroad Commission of Texas' Gas Services Division, addressed to the Director of that Division. 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LL CL m (D o m a CL V) z, x W a) E cl LL 0 LL 0) m » r Lr5 (D co a) "T N N N and I AGENDA DATE: DEPARTMENT: ACM: SUBJECT AGENDA INFORMATION SHEET October 15, 2013 Materials Management Bryan Langley 1 -4 Questions concerning this acquisition may be directed to Tim Fisher at 349 -7190 Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for the constriction of the Southwest Elevated Storage Tank for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (Bid 5350 - awarded to Landmark Strictures I, L.P. in an amount not to exceed $5,074,000). FILE INFORMATION The Southwest Elevated Storage Tank project consists of the constriction of a 3.0 million gallon (MG) Elevated Storage Tank on Lively Road as part of the Water Utilities Department's Capital Improvement Program (CIP) for constriction in Fiscal Year 2013 -2014. The tank will be located in the Southwest Upper Pressure Plane and is intended to provide enhanced pressure maintenance, fire flow, and water service delivery to the southwestern portion of the City of Denton, including portions of the Country Lakes development and all of Robson Ranch. A detailed description of the project is included in the Public Utilities Board Agenda Information Sheet (Exhibit 1). A map of the proposed location of the storage tank is included as Exhibit 2. Invitation for Bid 5350 was sent to 347 prospective suppliers- no local firms were identified that could provide this specialized service. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and the notice to prospective suppliers was advertised in the local newspaper. Two (2) bids were received (Exhibit 3). Landmark Strictures I, .L.P., (Landmark) is the lowest responsible bidder meeting specification. Landmark successfully constricted the last two composite elevated storage tank projects for the City of Denton, the 1.0 MG Northwest Elevated Storage Tank in 2001 -2003 and the 3.0 MG Roselawn Elevated Storage Tank in 2008 -2011. The pricing was competitive and in line with the engineer's estimate and within budget. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On October 14, 2013, the Public Utilities Board will consider recommending approval to forward this item to the City Council for consideration. Agenda Information Sheet October 15, 2013 Page 2 RECOMMENDATION Approve the award of Bid 5350 to Landmark Strictures 1, L.P. in an amount not to exceed $5,074,000. PRINCIPAL PLACE OF BUSINESS Landmark Strictures I, L.P. Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT The constriction schedule for the proj ect is from December of 2013 to the late spring of 2015. FISCAL INFORMATION This project will be funded from Capital Improvement Program account 630275523.1360.40100. FXHIRITC Exhibit 1: Public Utilities Board Agenda Information Sheet without Exhibits Exhibit 2: Location Map Exhibit 3: Bid Tabulation Respectfully submitted: C.�� Chuck Springer, 349 -8260 Director of Finance 1 -AIS -Bid 5350 Exhibit 1 PUBLIC UTILITIES BOARD AGENDA ITEM #7 AGENDA INFORMATION SHEET AGENDA DATE: October 14, 2013 DEPARTMENT: Utility Administration _Ih� ACM: Howard Martin, 349 -8232 SUBJECT Consider recommending approval of Bid No. 5350 — Southwest Elevated Storage Tank project to Landmark Strictures I, L.P. in an amount not to exceed $5,074,000.00. BACKGROUND The Southwest Elevated Storage Tank project consists of the constriction of a 3.0 million gallon (MG) Elevated Storage Tank on Lively Road as part of the Water Utilities Department's Capital Improvement Program (CIP) for constriction in FY2013 -2014. The tank will be located in the Southwest Upper Pressure Plane and is intended to provide enhanced pressure maintenance, fire flow and water service delivery to the southwestern portion of the city of Denton, including portions of the Country Lakes development and all of Robson Ranch (for location map refer to Exhibit 1). The Southwest Upper Pressure Plane service area is currently supplied water from the Southwest Ground Water Storage and Booster Pumping Station facilities that are located on the east side of Interstate 35 W on John Payne Road. These facilities were installed and placed into service in 2007 and have been supplying water service to portions of the Country Lakes development and to the Robson Ranch development using hydro pneumatic pressure storage tanks without the benefit of conventional elevated storage. Due to growth in the system, the area can no longer be reliably served without adding elevated storage to this upper pressure plane. The project has been included in the current 10 year Water Impact Fee Capital Improvements Plan and is also included in the Water Utilities 5 year CIP program. Bonds for the proj ect were sold and funding is in place to move forward with the proj ect. Bids for the project were structured with a base bid for the 2.5 MG capacity, 35 -foot head range tank and an alternative bid for a larger, 3.0 MG, 40 -foot head range capacity. Water Utilities pursued pricing on the alternative bid in the interests of evaluating the ability to obtain additional service delivery volume at the current outer reaches of the distribution system while taking advantage of the base bid pricing (economy of scale). It is worth noting that the preliminary design study for the Southwest Upper Pressure Plane service area projected water service populations of over 55,000 for this service area near build out. In addition, recent water distribution system master planning for the Robson Ranch development build out identifies that as much as 2.5 MG of elevated storage tank capacity is needed just for the Robson Ranch development at build out. AIS — PUB Agenda Item 47 October 14, 2013 Page 2 of 3 Bids for the project were received on September 26, 2013. There were a total of two bidders, with bids ranging from a low base bid of $4,771,000.00 to a high base bid of $7,600,363.00. Landmark Strictures I, L.P. of Fort Worth, Texas submitted the low base bid and the low alternative bid for the 3.0 MG capacity at $5,074,000.00. The tabulation of bids received is included herein as Exhibit 2. The Engineer's opinion of probable construction cost for the project (Exhibit 3) was $5,285,000 for the 3.0 MG alternate. The constriction cost estimate included in the FY 2012 -2013 Water Utilities CIP for the 2.5 MG base bid tank (Exhibit 4) was $5,075,000. OPTIONS 1. Approve the bid to Landmark Strictures I.L.P., for the base bid 2.5 MG Elevated Storage Tank in the total amount of $4,771,000.00. 2. Approve the bid to Landmark Strictures I.L.P., for the alternate bid 3.0 MG Elevated Storage Tank in the total amount of $5,074,000.00. 3. Reject all bids. RECOMMENDATIONS Staff recommends Option 2. The increased tank size of 3.0 MG is within the current budget for the project and provides 20% more storage for only a 6.4% increase to the project cost. Additionally, the projected longer term needs for elevated storage in the Southwest Upper Pressure Plane service area will require more elevated storage at a much greater future cost. By comparison, the 3.0 MG bid alternate for the Southwest Elevated Storage Tank ($5,074,000) project is slightly lower in cost than the 3.0 MG Roselawn Elevated Storage Tank Project that was bid in 2008 ($5,146,000) and the additional 0.5 MG of storage between the base bid 2.5 MG and alternate bid 3.0 MG is at a lower cost ($303,000 for the Southwest Elevated Storage Tank in 2013 versus $480,000 for the Roselawn Elevated Storage Tank Project bid in 2008). Landmark Strictures, I.L.P., is the most experienced composite elevated storage tank contractor and has successfully constricted the last two composite elevated storage tank projects for the City of Denton (The 1.0 MG Northwest Elevated Storage Tank in 2001 - 2003 and the 3.0 MG Roselawn Elevated Storage Tank in 2008 - 2011). The pricing was competitive and in line with the engineer's estimate and within budget. The engineer has reviewed the bids and is recommending award of the 3.0 MG bid alternate to Landmark Strictures I.L.P., as the qualified low bidder (Exhibit 5). PRIOR ACTION REVIEW (COUNIL, BOARDS, COMMISSION) December 10, 2012 PUB Approval of PSA with Kimley- Horn Associates, Inc., for the Final Design of the Southwest Elevated Storage Tank Project in the Amount of $ 325,000. AIS - PUB Agenda Item 47 October 14, 2013 Page 3 of 3 December 18, 2012 City Council Approval of PSA with Kimley -Horn Associates, Inc., for the Final Design of the Southwest Elevated Storage Tank Project in the Amount of $ 325,000. March 11, 2013 PUB Acceptance of Property Deed from Robson Ranch for the Southwest Elevated Storage Tank Project. March 19, 2013 City Council Acceptance of Property Deed from Robson Ranch for the Southwest Elevated Storage Tank Project. ESTIMATED SCHEDULE OF PROJECT The constriction schedule for the proj ect is from December of 2013 to the late spring of 2015. FISCAL INFORMATION A total of $ 5,595,000 was budgeted for the project and included $ 5,075,000 for the constriction contract (Exhibit 4). EXHIBITS 1. Location Map 2. Bid Tabulation 3. Engineer's Cost Estimate 4. CIP Project Detail 5. Engineer's Letter of Recommendation Respectfully submitted: -�ko ax,�Wt�, N,-t� Howard Martin Assistant City Manager, Utilities Prepared by: Timothy S. Fisher, P.E. Manager, Water Utilities Exhibit 2 1 inch = 200 feet CN IFB # 5350 EXHIBIT 3 DATE: 09/26/13 Description: SW Elevated Storage Tank Construction No. DESCRIPTION VENDOR VENDOR Caldwell Tanks Landmark Structures I, L.P. Principle Place of Business: Louisville, Kentucl -c Fort Worth, TX 1 BASE BID ITEM 1 $ 7,562,363.00 S 4,741,000.00 2 BASE BID ITEM 2 S 3,000.00 S 2,000.00 3 PERFORMANCE AND PAYMENT BONDS: S 35,000.00 S 28,000.00 4 TOTAL PRICE FOR CONSTRUCTION S 7,600,363.00 S 4,771,000.00 4 ALTERNATE BID ITEM 4 S 8,100,789.00 S 5,044,000.00 5 BASE BID ITEM 5 S 3,000.00 S 2,000.00 6 PERFORMANCE AND PAYMENT BONDS: S 35,000.00 S 28,000.00 7 TOTAL PRICE FOR CONSTRUCTION S 8,138,789.00 S 5,074,000.00 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE SOUTHWEST ELEVATED STORAGE TANK FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (BID 5350- AWARDED TO LANDMARK STRUCTURES I, L.P. IN AN AMOUNT NOT TO EXCEED $5,074,000. WHEREAS, the City has solicited, received and tabulated competitive bids for the constriction of public works or improvements in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and recommended that the herein described bids are the lowest responsible bids for the constriction of the public works or improvements described in the bid invitation, bid proposals and plans and specifications therein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive bids for the constriction of public works or improvements, as described in the "Bid Invitations ", "Bid Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids: I:1I9� NUMBER CONTRACTOR AMOUNT 5350 Landmark Strictures I, L.P. $5,074,000 SECTION 2. The acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for constriction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. The City Manager is hereby authorized to execute all necessary written contracts for the performance of the constriction of the public works or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under Bid 5350 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. Upon acceptance and approval of the above competitive bids and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: -ORD -Bid 5350 CITY OF DENTON CITY COUNCIL MINUTES September 10, 2013 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, September 10, 2013 at 2:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Council Member Engelbrecht, Council Member King, Council Member Hawkins, Council Member Gregory, Council Member Roden ABSENT: Mayor Burroughs, Mayor Pro Tem Kamp Due to the absence of the Mayor and Mayor Pro Tem, Council Member Gregory called the meeting to order. 1. Citizen Comments on Consent Agenda Items There were no citizen requests to speak on Consent Agenda Items. 2. Requests for clarification of agenda items listed on the agenda for September 10, 2013. Council did not request any clarification of items on the agenda. 3. Receive a report, hold a discussion, and give staff direction regarding the Hickory Grand Street project. PS Arora, DRC Project Administrator, stated that the design of the project was almost completed. To get input from the stakeholders on the design elements before the 100% design completion, a progress presentation was made to the merchants and residents in the Grand Street corridor. Staff also presented the project progress information to the Downtown Task Force. The input received from the members and residents was presented to the Task Force. He noted that the complete list of those concerns and recommendations were listed in the agenda backup materials. A review of the project limits was presented, noting that an additional project was the rearranging of the Williams Trade Square parking lot. Currently there were 234 parking spaces in the lot and with redesign 80 more spaces would be added. The overall plans for the area, rain garden area and specifications for the project were presented. July 19th merchant/neighborhood meeting - about 50 people attended the meeting. Concerns expressed during that meeting included (1) a place to put signage and /or ongoing notices of phasing during constriction; provide a link on the project progress on the city's website, (2) provisions for bike and motorcycle parking areas, (3) opportunity to use powder coated light poles versus rock covered poles, and (4) concern regarding pedestrian access to businesses during constriction. Arora reviewed the bike rack locations. Currently were 39 proposed spaces with a proposed increase to 16 for a total of 53 spaces. Council Member Gregory felt that 16 new spaces would not be enough. City of Denton City Council Minutes September 10, 2013 Page 2 Arora stated that the number of spaces could be increased by increasing the size of the racks. Phase 1 of the project would involve Locust to Austin. Work in this phase included full closure between Locust and Austin and all work, right -of -way to right -of -way to be completed during this phase between Locust and Austin. Phase 2 would involve Austin to Bell north and would involve removing on- street parking, traffic shifts south to two 10' lanes. A minimum of 3 feet of accessible sidewalk would be maintained at all times throughout all constriction phases with temporary access provided to businesses through plywood panels over the constriction. Phase 3 would involve Austin to Bell south. Projects in that phase would include moving traffic to 1 -10' lane per direction on new pavement (north), and on- street parking constricted in Phase 2 opened and available. A minimum of 3 feet of accessible sidewalk to be maintained at all times through all constriction phases with temporary access to be provided to businesses through plywood panels over constriction. Phase 3F involved Austin to Bell south with projects including all drainage elements, driveway and main lane pavements to be laid in one phase from Austin to Bell south of the location of traffic. Also temporary access would be provided at driveway crossings during the paving. Additional comments from the July 19th merchant/neighborhood meeting included (1) any provisions for DME to install electric vehicle charging stations, (2) First United Methodist Church would like two access points into the Wells Fargo /Williams Trade Square parking area, (3) merchants would like to see the Wells Fargo and Williams Trade Square parking areas constricted in Phase 1 prior to street constriction because of loss of on- street parking during constriction, and (5) concern on where inventory and beverage vehicles would park during constriction and upon project completion. Arora reviewed the reconfiguration of the Williams Trade Square Parking Lot. Currently there were 211 spaces, the change in Hickory Street on- street parking would provide 110 spaces for a total of 321 spaces compared to the current 234 existing spaces. Changes in the parking lot included rounded edges removed, modification of curbs, islands and striping and a 50' access required to the dumpster location. A proposed loading zone 65 feet in length located on Industrial Street would accommodate the trick traffic for the business locations. July 19th merchant/neighbor meeting concerns continued - (1) where would the crosswalks be located on Hickory Street, (2) would the project affect the Day of the Dead festival, (3) comment about no parking provided along Weldon's Western Wear near Bell /Hickory Street, (4) what was the status of DME, Verizon and Atmos coordination, (5) were there provisions to enable lighting of street trees like the Downtown Square and (6) concern regarding back -in angled parking on steep slopes. Council Member Roden felt that a better place for a crosswalk would be in the middle of the street rather than at the corners of the street. Council Member Engelbrecht suggested looking at angle crosswalks in the middle of the street for a safer means of crossing. Mayor Pro Tem Kamp arrived at the meeting and took over the chair from Council Member Gregory. City of Denton City Council Minutes September 10, 2013 Page 3 Arora stated that Council Member Roden had commented at the July 19th meeting on the final sidewalk size and accommodations for outdoor patio spots. Mayor Burroughs arrived at the meeting. Council discussed the widths of the sidewalks and the streets in the area of Hickory Street. Mayor Pro Tem Kamp asked about LED lighting on the streets Arora stated that it was his understanding not to proceed in that direction. If Council wanted to pursue that option, he would bring back the pros and cons of the feature. 4. Receive a report, hold a discussion, and give staff direction regarding road impact fees. PS Arora, Assistant Director of Wastewater, stated that staff used the Mobility Plan, Connectivity Plan, current CIP project information, the Transportation Criteria Manual, and the Development Code requirements to assess road exactions for proposed developments. In applying the road exaction ordinance located in the Denton Development Code (DDC), staff found several deficiencies. New developments or a higher intensity use in an existing development created additional traffic. To accommodate this additional traffic, the proposed development needed to pay for necessary road improvements. This resulted in exactions for road improvements per the DDC. Current DDC exactions included existing perimeter street improvements, new perimeter streets, sidewalks, offsite improvements, signal cost participation and proportionality assessment. Examples of what exactions for road improvements were assessed for some of the proposed developments were reviewed. A $1,500 road impact fee versus actual constriction costs for several projects was also presented. Council discussed the variances in the fee scenarios and the reasons for those differences. The discussion also included the difference between TxDOT roadways as opposed to city streets and an improved street versus a non - improved street. Arora continued with a definition of an impact fee. An impact fee was a mechanism for funding the infrastructure necessary to accommodate new development. It would be a one -time charge assessed to new development for a portion of costs related to a specific capital improvement program. Components that could be paid for through an impact fee program and components that could not be paid for through an impact fee program were reviewed. Next the positive and negative aspects of the DDC and Impact fees were discussed. The current DDC required payment to be limited to the project location, $2.5 million was tied to specific locations, had provisions for "road /sidewalk to nowhere" constriction and had unnecessary transitions to tie to existing road. Impact fees allowed for pooling of funds and allowed for the implementation of key system improvements over a piece -meal approach. Council discussed the pooling of funds and how the funds would be used for different projects. Arora reviewed fee benchmarking in the Metroplex area and showed possible impact fee service areas including how many service areas would be necessary to comply with the State law requirement. Staff had compiled a draft list of what arterials and collector streets, and signals City of Denton City Council Minutes September 10, 2013 Page 4 and intersection improvements might be eligible for Road Impact Fees. Staff had also compiled all of the development project data in the past four years and determined what could have been assessed as Road Impact Fees in those years for a $1500 or a $2000 Road Impact fee. Council Member King questioned if the development community would view these fees as punitive. The State mandated tasks to implement impact fees included (1) establish Service Areas, (2) develop land use assumptions, (3) a capital improvements plan, (4) determine cost per Service Unit, (5) general land use equivalency table, and (6) hold a public hearing process. Based on the cost to implement the Road Impact fee by several other cities in Texas, it was estimated that Road Impact Fees implementation in Denton could amount to $250,000 to $300,000. Staff had included funding of $300,000 in the 2013 -14 budget that was currently in the public hearing process for adoption. Bryan Locldey, Assistant City Manager, stated that staff would be bringing back more information to Council on the fees but had included the $300,000 in the budget for the study. Arora stated that in summary, the combination of impact fees and the proportionality model used in the DDC would allow for fair and predictable assessment of road impact exactions and provide for growth paying for growth. It would allow for a revenue stream that could be pooled and applied to road improvements within a service area and not be tied to a specific address location. It would also allow for a more predictable and efficient use of the capacity related to transportation dollars. Staff was recommending to proceed with the implementation of road impact fees. Mayor Burroughs felt that the developer committee would be good place to review these suggestions regarding the impact fees. 5. Receive a report, hold a discussion, and give staff direction regarding LEED (Leadership in Energy and Environmental Design) certification for the design and constriction of Fire Station 2. Ross Chadwick, Fire Chief, stated that staff was needing direction from Council on whether or not to proceed with LEED certification for the design and constriction of Fire Station 2. A presentation had been made to the Committee on the Environment regarding the certifications. Mayor Pro Tem Kamp stated that the Committee had a good discussion regarding the certification and agreed to a commitment for sustainability and green building. Many costs for the certification were already included in the building project. Chadwick continued that the design services contract was awarded to Kirkpatrick Architectural Studio (KAS) for the design of Fire Station 2. KAS and the Fire Department's design committee were working on the design process for this reconstruction. However, before KAS and Fire Department staff can complete final design, direction was needed from Council regarding whether or not to pursue specialized certification from LEED. The cost of the certification was $165,000 for design and certification. Questions to consider were whether Council wanted the LEED certification at a cost of $165,000 and what would gained in terms of return on this City of Denton City Council Minutes September 10, 2013 Page 5 substantial investment. Staff was recommending that some of the LEED design costs be considered even if the Council desired not to do a LEED certified station. This would include energy modeling, commissioning and soil testing for geo- thermal. David Robinson, KAS, stated that the firm was also recommending doing an energy model and the commissioning. The commissioning involved a third party reviewing the design of the systems, reviewing what was submitted and reviewing the work to make sure it was installed correctly. Mayor Burroughs stated that the real issue was not the substance to build it green but rather the delta between doing everything required from LEED versus the actual certification which required supervision and report submittal which were not indicative of an outcome. He questioned what the money difference was between getting LEED certification as opposed to non -LEED certification in terms of cost. Robinson stated that the difference in commissioning for non -LEED and the energy model would be about a $145,000- $165,000 difference. Council Member Gregory asked about the Daylight and Energy modeling cost. Robinson stated that those were two models involving a daylight and an energy model. With just the energy model and commissioning the cost would be $145,000. Council Member Engelbrecht stated that would be a $120,000 difference and questioned if that would be the same for each station. Jim Kirkpatrick, KAS, stated that an alternative would be to LEED certify the first station and not do it for the duplicate stations after that. Then there would be at least one LEED certified station. Mayor Pro Tem Kamp was in favor of having LEED certification on this station and moving forward perhaps considering a different certification for the other stations. Going forward look at another process if desired but for this station keep it LEED certified. Robinson stated that there was the International Green Code. He assumed there was some testing required but was not certain about commissioning requirements. This program would be administered by the Building Department. Council Member Hawkins asked if there would be any difference in the facility if the LEED certification was not pursued but a LEED quality building was constricted. Perhaps a Denton Green Building Committee could be formed to watched over the constriction and indicate that it followed all of the LEED certification. The only difference would be that there was no national marketing situation. Robinson stated that LEED was a credit based system that allowed a design team to follow common language and goals which produced qualified results that could be gauged. On the design side it was possible that the difference might not be that great. It was more difficult on the City of Denton City Council Minutes September 10, 2013 Page 6 constriction side. The outcome might be the same but having the LEED certification would be paying for the comfort that it was certified. Council Member Hawkins stated that it would provide leverage on the first station but not on the others. Mayor Pro Tem Kamp stated that other cities were going towards LEED certification and those cities were nationally known. The controversy was the amount of money to get a project certified. She was advocating to go forward with this station and then give direction for staff to put something else together in the future. Council Member Roden stated that the question for this issue came from the design committee. The committee assumption was that if the $165,000 was not spent on LEED the money could be used for other types of firefighter needs. However, that that would not be the case and the committee needed education that the money would not be used other places. Chief Chadwick stated that the committee had been educated on the issue but still did not understand. Council Member Roden asked what would be saved annually with the $165,000. Chuck Springer, Director of Finance, stated that it was about 10% per year or about $16,000 per year for 20 years for the debt service. Council Member Roden stated that he agreed with LEED certification for this station. He did not want to lose the national recognition for the LEED certification for only $16,000 per year. Council Member Gregory asked if it was already known what kind of level the certification would be and if there was a cost difference for the different kinds of levels. Robinson stated that an initial analysis of the plan design should provide a silver certification level. Council Member King agreed with Mayor Pro Tem Kamp except he was under the impression that there was a specific list right now that was developed to not put in the design of the new station. If that was wrong, he would be in favor of doing a LEED certification and develop a list for other stations. Mayor Pro Tem Kamp stated that there were some things found from the design of Station 7 that were recommended not to take to the next fire stations. Chief Chadwick replied that was why there were firefighters on the design team so some of those issues were not repeated in the future. Council Member King felt that the LEED certification could be given up and still have a green building. He questioned that the $165,000 would still be spent regardless of the level of certification. City of Denton City Council Minutes September 10, 2013 Page 7 Robinson replied yes that the amount was the time based on certification. Council Member Gregory stated that the building was going to be built according to LEED certifications but when the actual certification was paid, the process was using a contractor and subcontractors to levels of accountability. That provided knowledge that the systems were LEED certified and procedures in constriction lived up to those standards. He was in favor of the LEED certification for this station and continue to look at other certification avenues for future buildings where there would still have an accountability level for the constriction process to follow green standards. Council Member Hawkins asked what the paying for the certification would provide. Robinson stated that it would provide certification of the documentation submitted, revisions to the documentation and that much of that money was the process of certification. Mayor Burroughs stated that part of the payment was for time and graphic presentations but mostly time and coordination. He asked Council for their thoughts on pursuing the LEED certification. Council Member Engelbrecht indicated that he was not in favor of LEED certification in this case. The money for paper and a plaque was not worth it. A general contractor should be doing this anyway. He felt this was too much money and by not using the certification should set a standard to LEED that it was too much to pay for the certification. Council Members Roden and Gregory along with Mayor Burroughs and Mayor Pro Tem Kamp were in favor of the certification. Council Members King, Engelbrecht and Hawkins were not in favor. Consensus of the Council was to proceed with the LEED certification. 6. Receive a report, hold a discussion, and give staff direction regarding the FY 2013 -14 City Manager's Proposed Budget, Capital Improvement Program, and Five -Year Financial Forecast. Mayor Burroughs asked if there was any discussion needed on this item. City Manager Campbell stated that staff had a presentation for Council to consider. Mayor Burroughs stated that this item would be done after the completion of the regular meeting. Following the completion of the Work Session, the Council went into Closed Session to consider the following: 1. Closed Meeting: A. Consultation with Attorney - Under Texas Government Code Section 551.071. 1. Consult with City's attorneys regarding status and options for resolution and disposition of litigation styled Jones v. City of Denton, Cause No. City of Denton City Council Minutes September 10, 2013 Page 8 2011 -50255 -367, currently pending in the 367th District Court, Denton County, Texas. B. Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074. 1. Deliberate and discuss the appointment and duties of public officers to boards or commissions exercising discretionary or rile making power as opposed to purely advisory powers, which includes without limitation the Health and Building Standards Commission, the Historic Landmark Commission, the Planning and Zoning Commission, and the Zoning Board of Adjustment. C. Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. 1. Receive competitive public power information from staff in the form of a proposed operating budget for Denton Municipal Electric (DME) for the upcoming fiscal year, including without limitation, revenues, expenses, commodity volumes, and commitments, and the direction of DME; and discuss, deliberate, consider adoption of the budget and other matters, and provide staff with direction regarding such matters. This item was not discussed in Closed Session. D. Consultation with Attorney - Under Texas Government Code Section 551.071. 1. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with: (1) the Gas Well Ordinance regulation of gas well drilling and production within the City Limits and extraterritorial jurisdiction; (2) the setting of gas well inspection fees, road damage remediation fees, and bond and insurance requirements; (3) the implementation of a freshwater well sampling program and an air quality monitoring program in connection with the Gas Well Ordinance and Fee Ordinance; and (4) the enforcement, including remedies available to the City, of violations of the Gas Well Ordinance and Fee Ordinance; E. Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074. 1. Review and discuss the duties and goals for the City Manager, City Attorney, and Municipal Judge. City of Denton City Council Minutes September 10, 2013 Page 9 This item was considered in a Closed Session following the completion of the regular meeting. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall. The start time of the meeting was 7:15 p.m. due to the length of the Closed Session. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations /Awards 1. Blood Cancer Awareness Month The proclamation was not done at this meeting. 2. Mean Green Pride Fridays Mayor Burroughs presented the proclamation for Mean Green Pride Fridays. 3. Government Finance Officers Association Distinguished Budget Award Chuck Springer presented the award to the Council. He noted that this was the 27th straight year the City received the award. 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: 1. Receive an update from Amber Briggle regarding fundraising efforts for a Denton Splash Park. Ms. Briggle stated that there was a group of citizens who were trying to bring a splash park to Denton. It was an area of water play that had no standing water. She detailed the benefits of a splash park which included the fact that it was free and swimmers and non - swimmers could use the park. She presented information on the project history and what they had accomplished so far plus what was next for the group. She requested that Council add this item to the 2014 bond package. City of Denton City Council Minutes September 10, 2013 Page 10 4. CONSENT AGENDA Council Member King motioned, Mayor Pro Tem Kamp seconded to approve the Consent Agenda and the accompanying ordinances and resolutions. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. Ordinance No. 2013 -217 A. Consider adoption of an ordinance of the City of Denton, Texas, amending the Fiscal Year 2012 -13 Budget and Annual Program of Services for the City of Denton to allow for an adjustment to the Animal Control Donation Fund of Two Hundred Twenty Thousand Dollars ($220,000) from the original budget amount of Thirty Thousand Dollars ($30,000) to Two Hundred and Fifty Thousand Dollars ($250,000) to provide additional expenditure authority related to veterinary contract costs; declaring a municipal purpose; providing a severability clause; providing an open meetings clause, and providing an effective date. The Audit/Finance Committee recommends approval (3 -0). Ordinance No. 2013 -218 B. Consider adoption of an ordinance of the City Council of the City of Denton, Texas, amending the City's Fund Balance Policy; and providing an effective date. The Audit/Finance Committee recommends approval (3 -0). Ordinance No. 2013 -219 C. Consider adoption of an ordinance of the City Council of the City of Denton, Texas, amending the Street Improvement Fund; defining and committing certain fees and other revenues of the City to the Street Improvement Fund; providing a severability clause; and providing an effective date. The Audit/Finance Committee recommends approval (3 -0). Resolution No. R2013 -027 D. Consider approval of a resolution adopting a revised City of Denton Handbook for Boards, Commissions, and Council Committees; and declaring an effective date. Ordinance No. 2013 -220 E. Consider adoption of an ordinance awarding a contract under the Texas Multiple Award Schedule ( TXMAS) program for the purchase of HON Brand Office Furniture for various City of Denton departments as awarded by the State of Texas Contract TXMAS -6 -7- 1111060; providing for the expenditure of funds therefor; and providing an effective date (File 5268 -HON Furniture for various City Departments awarded to Multiple Approved Vendors as listed on Contract TXMAS -6 -7- 1 1 1 1 060 in the three (3) year not -to- exceed amount of $500,000). Ordinance No. 2013 -221 F. Consider adoption of an ordinance of the City of Denton, Texas authorizing the expenditure of funds for payments by the City of Denton for Electrical Energy City of Denton City Council Minutes September 10, 2013 Page 11 Transmission Fees to Electric Transmission Texas; and providing an effective date (File 5083- Electrical Energy Transmission Fees for Fiscal Year 2012 -2013 to Electric Transmission of Texas in the additional amount of $56,911.72 for a total award amount of $407,090.64). The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -222 G. Consider adoption of an ordinance of the City of Denton, Texas authorizing the expenditure of funds for payments by the City of Denton for Electrical Energy Transmission Fees to Lone Star Transmission; and providing an effective date (File 5260- Electrical Energy Transmission Fees for Fiscal Year 2012 -2013 to Lone Star Transmission in the additional amount of $16,514.92 for a total award amount of $175,12035). The Public Utilities Board recommends approval (6 -0). Approved the noise exception request listed below. H. Consider a request for an exception to the Noise Ordinance for the purpose of performing live music for the 2nd Annual Mexican Independence Day Fair at the corner of McKinney Street and Railroad Avenue in the vicinity of La Estrella Mini Market on Saturday, September 14, 2013, beginning at 4 p.m. and concluding at midnight. This request is for an extension of hours from 10 p.m. to midnight. The music will remain at the allowable 70 decibels. Staff recommends the exception be granted until midnight. Ordinance No. 2013 -223 L Consider adoption of an ordinance approving a city sponsorship in an amount not to exceed $16,000 of in -kind services for the 15th Annual Blues Festival to be held in Quakertown Park on September 21 -22, 2013; and providing an effective date. Approved the noise exception request listed below. J. Consider a request for an exception to the Noise Ordinance for the purpose of having music played during an engagement party at a residential home located at 1109 Indian Ridge Drive on Saturday, September 14, 2013, from 7 p.m. to 11:30 p.m. This request is for an extension in hours for sound from 10 p.m. to 11:30 p.m. The music will remain at the allowable 65 decibels. Staff recommends approving request. Abbroved the minutes listed below K. Consider approval of the minutes of: August 1, 2013 August 5, 2013 August 6, 2013 Resolution No. R2013 -028 L. Consider approval of a resolution by the City of Denton, Texas, authorizing the City Manager to submit an application and all other necessary documents to obtain a grant under the Texas Department of Housing and Community Affairs, Amy Young Barrier Removal Program and take all other actions necessary to implement the program; and providing for an effective date. City of Denton City Council Minutes September 10, 2013 Page 12 Ordinance No. 2013 -224 M. Consider adoption of an ordinance awarding a contract for the capital lease purchase of desktop Personal Computers (PCs), notebook PCs, peripherals, and services as awarded by the State of Texas Department of Information Resources (DIR) Contract Number DIR -SDD -1951; providing for the expenditure of funds therefor and providing an effective date. (File 5337 awarded to Dell Financial Services LP for a total lease amount of $1,343,277.36 and additional products in the amount of $423,900 for a not -to- exceed amount of $1,767,177.36). 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. Consider nominations /appointments to the City's Boards & Commissions. 1. Airport Advisory Board 2. Community Development Advisory Committee 3. Historic Landmark Commission 4. Human Services Advisory Committee 5. Public Art Committee 6. Traffic Safety Commission 7. Zoning Board of Adjustment The following individuals were nominated: Airport Advisory Board — Pete Lane Traffic Safety Commission — Adam Reese Zoning Board of Adjustment — Reggie Hill; all three of the current alternates Council Member Roden motioned, Council Member King seconded to approve the nominations. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. 6. PUBLIC HEARINGS A. Hold a second public hearing on a proposal to adopt a tax rate of $0.68975 per $100 valuation, which will exceed the lower of the rollback rate or the effective rate. Chuck Springer, Director of Finance, stated that this second public hearing was required by state law. He detailed the tax rate, effective tax rate and rollback rate. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. City of Denton City Council Minutes September 10, 2013 Page 13 No action was required on this item at this time. 7. CITIZEN REPORTS There were no citizen reports at this meeting. 8. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Council Member Roden mentioned the Mentor Denton Program with the DISD and encouraged everyone to sign up for it. Council Member Engelbrecht felt that the beautification project of Fry Street and Hickory was well done. Mayor Burroughs noted that DCTA had been installing benches at the bus stops and providing places for citizens to sit at the stops. Mayor Burroughs stated that he had read a report from the EPA and TCEQ regarding air quality in north Texas. He requested to look at the possibility for provisions for anti - idling over 5 minutes for big tricks. Mayor Burroughs requested a memo where LED street lights were being installed in the city and the future of installing more of these types of lights. Mayor noted that Council would be going back into the Work Session to complete the item not considered earlier. B. Possible Continuation of Closed Meeting under Sections 551.071 - 551.086 of the Texas Open Meetings Act. Mayor Burroughs noted that Council would be going into Closed Session following the completion of the Work Session item but no action would be taken on that item. City of Denton City Council Minutes September 10, 2013 Page 14 Council went to the Work Session to consider Item 6 listed on the agenda. 6. Receive a report, hold a discussion, and give staff direction regarding the FY 2013 -14 City Manager's Proposed Budget, Capital Improvement Program, and Five -Year Financial Forecast. Chuck Springer, Director of Finance, stated that there were proposed additions to the budget. He detailed those additional items and the associated budget implications. Park Foundation Executive Director — the position would provide $35,000 in contractual services in the General Fund. The purpose was to increase funding for Park CIP projects and funding would be for a maximum of three years subject to a letter of agreement. Downtown Public Wi -Fi - $72,574 was needed for the first year with $11,723 in recurring costs coming from the Technology Fund. Grant funding was no longer available so the security cameras were excluded. The costs would be allocated in 2014 -15 to the General Fund. The project would provide free outdoor Wi -Fi in the Downtown Square, along East Hickory Street and at the DCTA passenger platform. The system would support up to 300 simultaneous users distributed across the area. Mayor Burroughs suggested waiting to implement anything until a new COG grant came out to help with the financing. City Manager Campbell stated that implementation of the project would be delayed until staff could check on future funding. Springer stated that staff would include this project in the budget for next year. Creation of a Downtown Reinvestment Fund — Appropriate changes would be made to the General Fund for this fund. Council Member Roden asked why the need was identified now for an Executive Director for the Park Foundation. He questioned if this funding would set a precedence for public funding for a private foundation. City Manager Campbell felt that it would provide an opportunity to help with fundraising. Council Member King stated that the DISD had a similar arrangement for the School Foundation. This would help with grant funding, etc. Council Member Gregory stated that with the Public School Foundation, the vendors with the DISD made contributions to help underwrite the Director. He felt that within several years the Park Foundation would generate enough donations to make it unnecessary for the City to continue funding. John Cabrales, Assistant City Manager, stated that in conversations with the Foundation there would be a guarantee funding campaign for Eureka Park. If there was a community park type project the Foundation would help raise funds for the new park. City of Denton City Council Minutes September 10, 2013 Page 15 Council Member Roden asked about a contract potential triggered by year. If there was no activity the City could pull out of the agreement or commitment for 3 years. Cabrales stated that there were benchmarks in the agreement that would be assessed each year. This would be a contract individual and not a city position. Springer reviewed the General Fund revised projections. He presented information on proposed increased street maintenance funding. An increased level of funding was required to get back to the 2009 OCI rating and maintain it going forward. Funding options included (1) additional funding transferred from the General Fund, (2) reduce current programs and shift resources, (3) dedicate property tax rate increase, (4) defer non - street maintenance capital program and use debt service savings, (5) additional bond election with sales beginning in 2014 -15, (6) dedicated street maintenance fee, (7) adoption of street impact fees to reduce debt service tax rate and shift rate for street maintenance purposes, and (8) a combination of two or more of the above options. Funding recommendations included (1) continue budgeting all growth in franchise fees to the Street Improvement Fund, (2) move forward with street impact fee study for consideration of fee adoption effective 2014 -15, (3) schedule additional work sessions to consider specific proposals /options for a street maintenance fee, and (4) include an additional $20 million in bond funding (another five year program) in November 2014 bond program. Options for additional street maintenance funding could include the redirecting of funds by reducing or eliminating supplemental packages for 2013 -14 to street maintenance. Mayor Burroughs stated that he had no interest in doing that. He was not interested in cutting services as momentum was building up the fund. Staff needed confirmation from Council that they were in agreement with the direction presented. Consensus of the Council was that there were in agreement with the direction. Strategic planning to engage stakeholders — the direction was to fund the planning effort through partnership or facilitate the process internally. Staff recommended the redirection $20,000 from the supplemental package for Economic Development to initiate this planning effort. Consensus of the Council was to continue with the plan. Additional discussion was held regarding the Better Block program and other issues /programs. Council Member Roden stated that given the timing, he would ask staff to identify the funding if Council wanted to move forward. Council Member Gregory stated that the last time he mentioned on- street bike facilities he had presented incorrect math. The funding was about 65% which was much better than he thought. He was not asking for additional money for this year for the bike program. Following the completion of the Work Session, the Council returned to the Closed Meeting at 8:25 p.m. to consider the following item: City of Denton City Council Minutes September 10, 2013 Page 16 1. Closed Meeting: E. Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074. 1. Review and discuss the duties and goals for the City Manager, City Attorney, and Municipal Judge. Following the completion of the Closed Meeting, the Council returned to open session and adjourned the meeting. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES September 17, 2013 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, September 17, 2013 at 3:00 p.m. in the Council Work Session Room. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins ABSENT: None 1. Citizen Comments on Consent Agenda Items There were no citizen comments on Consent Agenda Items. 2. Requests for clarification of agenda items listed on the agenda for September 17, 2013. Council Member Roden noted that Consent Agenda Item A was recommended for approval by the Council Mobility Committee. Council Member Hawkins asked how often the fee would have to be charged for Consent Agenda Item U. City Attorney Burgess indicated that the fee would be discussed in the upcoming Closed Session. Mayor Burroughs asked about Budget Consent Agenda Item 5A on the park fees increase. He asked if a study had been done or was the recommendation done informally. He questioned what the fee increase might do to usage. Emerson Vorel, Director of Parks and Recreation, indicated that there was no study on what the rates would be and that historically staff felt the small increases would not impact the usage. He noted that some of the rates had not been increased in 20 years. 3. Receive a report, hold a discussion and give staff direction regarding a proposed Hotel and Convention Center project. Jon Fortune, Assistant City Manager, stated that his discussion would include a project overview, development agreements, project feasibility process, development steps, agreement elements, financing for Convention Center constriction, example of a project proforma and next steps. He would be presenting a follow -up discussion at the October I" meeting regarding the financing of the center. Project overview — the project was a collaboration between the city of Denton, O'Reilly Hospitality Management (OHM), O'Reilly Hotel Partners Denton (OHPD) and the University of North Texas. The project would be an Embassy Suites Hotel, a Denton Convention Center and a Houlihan's restaurant. The site was 13.5 acres located on UNT property. The hotel and restaurant would be OHPD funded. The convention center would be City funded. The total project cost was $85 million with $25 million for the convention center and $60 million for the hotel and restaurant. City of Denton City Council Minutes September 17, 2013 Page 2 OHPD would lease the land from UNT for the hotel /restaurant and would be funded and owned by OHPD. OHM would have management of constriction and the facilities would be operated by OHM. The hotel would be 12 stories with 318 suites. It would be LEED certified with an element of master agreement. An educational opportunity would be available through the UNT School of Hospitality. The development agreement would allow for a minimum of 9 stories with 275 suites based on economic conditions at the time of constriction. Council Member Gregory asked if that was a new element. Fortune stated yes but that OHM was working towards the maximum. Project Overview- Convention Center — the City would lease the land from UNT and would fund and own the convention center. The City was not funding the hotel. OHM would serve as architect and constriction manager. There would be a sub -lease for the convention center to OHPD. The convention center would be operated and managed by OHM. The size of the convention center would be approximately 100,000 sq. ft. and would be a single story stricture versus a two story stricture. A bigger grand ballroom was proposed that would be completely finished out and provide more meeting space. The proposed size was a better fit for the site with a lower profile and visibly less intrusive. These were rough figures that would be more detailed as the design features were worked out. Council Member Gregory stated that at the San Marcos project the food facilities were located closer to the conference center and had a shared space for food prep. It appeared the proposed Denton facility did not have that concept. Fortune stated that the current proposal was a very preliminary concept and that there would probably have some shared concepts for banquets. Mayor Burroughs stated that as the concept currently stood, the actual space for the conference center was separate from food prep, storage, etc. Fortune stated that the focus was on the grand ballroom which was dividable and around the grand ballroom would be smaller break out rooms. Development Agreements - Master Development Agreement — the City and UNT would have a land lease agreement. The City and OHPD would have an agreement for a convention center sub -lease which included an operating agreement for the convention center. OHPD and UNT would enter into a land lease agreement. There would be a professional service agreement with OHM to design the project. There would also be a professional service agreement with OHM for constriction management. Council Member Gregory asked if staff had talked with other cities with similar agreements regarding the development agreement. Fortune stated that staff had several models from other cities to look at. This was a unique agreement and bond counsel had been retained to help with the stricture of the development agreement. City of Denton City Council Minutes September 17, 2013 Page 3 Project Feasibility Process - the project feasibility process was beneficial as it allowed project participants to determine feasibility before constriction, to withdraw from development before closing on bonds or financing before constriction, to minimize the level of financial commitment, to obtain preliminary architectural plans, to obtain a guaranteed maximum price for constriction proposals, and to further define the details of a TIRZ. Council Member Roden asked about an estimated time for the process from the time the master agreement was signed. Fortune stated that it was about a six month process with a lot dealing with preliminary architectural design. Development Steps — the development steps included: (1) hire an architect and constriction manager agent through a contract with OHM, (2) initiate a project design to obtain design development drawings, (3) implement the creation of the TIRZ and determine the level of participation from other governmental entities, and (4) solicit constriction proposals for a guaranteed maximum price. Mayor Burroughs asked at what point was the design of the exterior stricture finalized and how much influence did the City have in that. Fortune stated that UNT had high design standards as it was on their property. He continued with the development steps: (5) evaluate constriction proposals and award guaranteed maximum price contract to be contingent on City funding and include a savings sharing clause, (6) finalize a constriction budget, (7) the feasibility period ends and participants determine whether to continue, (8) city initiates the process for the sale of bonds, (9) bond closing and funds available, (10) with funding available, the design was completed, (11) the City hires a project manager, (12) complete the TIRZ creation, (13) begin hotel /convention center marketing, (14) begin constriction and (15) open the hotel /convention center. Mayor Pro Tem Kamp asked about whether there were funds set aside in the budget for marketing. Fortune stated that the funds would be available but that there would also be coordination with the Convention and Visitors Bureau on what they would do in terms of marketing. Council Member Gregory stated that the City would have a potential investment of $200,000 in the preliminary design and have another decision to make on whether to continue with the project. At that point the City could withdraw. The most money the City would be out before deciding to continue would be $200,000. Fortune stated that what was anticipated at this point. There would be a decision for all three entities involved, not just for the City. Council Member Gregory expressed concern that UNT had no money in and that after the City agreed to put in the $200,000 they might not want to continue. The same was for OHPD. Fortune stated that OHPD would have an in -house design team that would be spending money. City of Denton City Council Minutes September 17, 2013 Page 4 Council Member Roden asked for an explanation of the ordering for the master development feasibility period. There were two decisions on whether to go forward and questioned why not reverse the agreement order to commit the $200,000 before getting to that. Fortune stated that the primary concern was that it had taken a long time to get to this point and the fear was that once the entities went through the process, if the riles were not known before the start of the project, the riles would have to be done while the project was in progress. Mayor Burroughs asked where in the steps before Step 8 the feasibility aspects of TIRZ would be finalized. Fortune stated that they anticipated some communication and work sessions with the others. There would be some understanding of participation at that level so the OHM group could decide to move forward. Council Member King asked about a ball park figure for the manager agent cost. Fortune stated that it was not known at this point. It may be a percentage of the cost. Agreement Elements - UNT would lease the property to the City with a 50 year lease with two 10 year renewal options. The cost would be $1 /year during terms of debt payment for 25 years. After the debt was retired, the rent would be increased to approximately $175,000 /yr with adjustments every ten years. The City would sub -lease the property to OHPD. The sublease term would match the UNT lease and included the details for operating the convention center. The rent to the City would equal the amount to guarantee debt payment with the rent to the city beginning in Year 3 of operations. UNT would lease the land to OHPD with a 50 year term and two 10 year renewal options. Rent for years 0 -3 would be $1 /year of operations. Rent for Year 4 and beyond would be 1.5% of the gross project revenue. The agreement also included coordination with the UNT College of Merchandising, Hospitality and Tourism which might allow a portion of the hotel value to be tax exempt. Council Member Roden questioned when that would be decided. Fortune stated it would be included in the Master Development agreement and the agreement with the franchisee for the hotel. Council Member Roden stated that he would like more information on that aspect as the amount could change each year due to Appraisal District valuation. Fortune stated that right now all of the property was tax exempt so any arrangement would be more beneficial than what currently existed. Mayor Burroughs questioned what would happen to the debt payment if that went up. Fortune stated that there was an obligation either on the rent side or the tax side. He did not feel it would be more than 15% for the school side based on OHM comments. City of Denton City Council Minutes September 17, 2013 Page 5 Council Member Engelbrecht stated that it was not so much coordination but rather usage. He would like specific definitions with regard to how to define it and how use it. Fortune stated that some of those elements were still fluid and that he was not talking about space in the convention center but only in the hotel portion. Financing - Convention Center — the goal would be to have the convention center self - supporting. The City would sell Certificates of Obligation to fund the project and the debt would be supported from the project revenue including OHM rent. A Tax Increment Finance District (TIRZ) would be created which would help ensure that the project was developed. The project would be located on UNT property that was currently tax exempt. The leasehold interest in the hotel would be taxable and would provide an opportunity for participation by the DISD and the County. Debt service would be funded by hotel occupancy taxes related to the development of the project, TIRZ revenue, city sales taxes derived from the project and OHPD lease payments to the City. Fortune presented a proforma example for the next 20 years. Assumptions were (1) a property tax based hotel income at 85% taxable, (2) sales tax based on food and beverage sales from the hotel and restaurant, (3) debt service estimate based on a 5% taxable issue, (4) lease payment assumed TRIZ contribution from the DISD and County, and (5) lease payment assumed an additional City contrition. Council Member Roden felt that the projected occupancy rates might be high for Denton's market. He questioned if the occupancy rates and room rates were lower, was all that risk taken by OHM. Fortune stated yes that if they were lower, the rent payments to the City would go up. Next Steps — next steps included finalizing the development agreement, leases and professional service contract which required Council and UNT Regents approval; starting the feasibility period to initiate the design, the creation of the TIRZ and obtain constriction proposals; and conclude the feasibility period. 4. Receive a report, hold a discussion and give staff direction on the Better Block Project. Brian Locldey, Director of Planning and Development, stated that his presentation would include a program background, the process for Denton and the Better Block meeting summary. The Better Block program was started in 2010 and was designed to re- engineer auto dominated, blighted, and underised urban areas and was customized to meet city needs. The Team Better Block led communications, organized stakeholders and coordinated with government authorities. There were eight steps included in the process for an event. The three to four month schedule included (1) public and private space survey, (2) Better Block community build team, (3) the identification of a package, (4) Better Block build plan, (5) Better Block starter kit, (6) Better Block market analysis survey, (7) Better Block event, and (8) Better Block wrap up.. The total cost was $40,000 with each phase containing a project description and specific deliverables. Phase I of the program included a public and private space survey and a survey of public and City of Denton City Council Minutes September 17, 2013 Page 6 private spaces, quality of those spaces and areas with redevelopment potential. Phase 2 dealt with Community Build Team which was a group made up of leaders and activists in the community who engage in the build out of the Better Block. Phase 3 identified the package and developed the graphic design elements that would brand the area, the website development, social media, and marketing of the Better Block district. Phase 4 was the build plan which included a rendering of the selected block, a material list, street cross section, cost estimates, and PowerPoint describing the Better Block. Phase 5 was the Starter kit which refined the build plan. Phase 6 included the market analysis which was a tool that surveyed the community to determine what businesses were needed and what could easily be developed by and for the community. Phase 7 was the Better Block which was a living charette that took the community on to the street and began the process of creating a great place. Phase 8 was the Better Block wrap up with a completed study of the project and an outline of next steps for continued growth and promotion of the Better Block area. Better Block Meeting summary — the City hosted a public meeting on August 21st to determine a level of interest in a Better Block program. There were approximately 100 attendees who were provided a three question survey. Approximately 75 responses were received from the survey. The overall response was that the Better Block program was a good idea; several areas for the project were suggested; and respondents would volunteer or donate money to the project. The suggested locations were mainly focused in central Denton. A point to consider was what would happen at the fringe areas of the blocks after the main area was changed. Mayor Pro Tem Kamp stated that she really loved the concept but was struggling with the amount of money for the project. She questioned if the project were to go forward what kind of time frame would be involved and where would the money come from for the project. City Manger Campbell stated that the project was not included in the proposed budget and was not a supplemental package. There was no source of funding at this time. Depending on the timing, funding could come out of the fund balance if Council wanted to do it in the current budget year. He stated that this was not a project that needed to be decided today. Staff was just interested in whether the Council wanted to continue looking into the project. Council Member Roden stated that the budget allowed $50,000 for the neighborhood improvement program this fiscal year. Locldey stated that there were two applications in progress for up to $10,000 this year. Council Member Gregory stated that the concept was great as it actually went on the street to see how the changes would be rather than just doing it on paper. He felt the project should move ahead and liked the funding concept of using some of the Neighborhood Improvement Program funds. City Manager Campbell stated that the project amount was not a large amount of money that would be an obstacle to the project. Council Member Engelbrecht stated that a metric would be the number of people who participated during all of the phases. That would show how much people were interested in the development of Denton. Another element was the addressing of costs for the public. He felt it City of Denton City Council Minutes September 17, 2013 Page 7 was important to express to the public that on one day each element would cost this much to do this kind of project. Council Member Hawkins stated that as a community, Denton might be able to do some of the items. He suggested looking at that element of doing some of these steps rather than hiring a firm. Consensus of the Council was to move towards the next step for evaluation. 5. Receive a presentation, hold a discussion and give staff direction on the reorganization of the Planning and Development Department. Brian Locldey, Director of Planning and Development, stated that his presentation would include the purpose of the proposal, the department overview and functions, department reorganization, new internal initiative, and Code Enforcement renaming. The purpose of the proposal was to improve on the development and implementation of existing programs and services and to improve the coordination, communication and collaboration between the internal divisions of Planning and Development and other city departments. The Planning and Development Department consisted of five divisions. Those divisions were (1) Planning and Development Review, (2) Building Inspections, (3) Gas Well Inspections, (4) Community Development and (5) Code Enforcement. All activities within the Planning and Development Department were performed in accordance with the goals and objectives of the Denton Plan and the Denton Development Code; the International Building Code, Consolidated Plan for Housing and Community Development and the Denton Property Maintenance Code. The Planning and Development Department also supported the activities of five Council appointed boards or commissions. The department reorganization would be divided into two sections of Development Services and Neighborhood Services. The Development Services section would include Planning and Development Review, Building Inspections and Gas Well Inspections. The Neighborhood Services section would include Community Standards and Compliance, Community Development and the Neighborhood Planning Program. There would be no changes in personnel as existing personnel would be restructured in the reorganization. Two new internal initiatives were proposed. In the Development Services section the initiatives would include a team approach to project management including a project manager, a development review engineer, plans examiner and fire protection specialist. This team would be a team for all of the projects coming before them. A permit center would be created and cross training of front desk staff would be performed. Mayor Burroughs stated that he was glad to hear about the proposed expedited review that would be associated with the creation of a permit center. He felt it would help with quicker inspections and the verification of open items during an inspection. Council Member Gregory questioned if the team approach would have the same plans examiner following the project all the way through. City of Denton City Council Minutes September 17, 2013 Page 8 Locldey stated that was correct. Council Member Hawkins questioned if there would be a person who could help with the process as well as computer access Locldey stated that was the vision for the permit center. The Neighborhood Services internal initiatives included a Neighborhood Resources Team and city departments with program services geared towards neighborhoods. The purpose would be to collaborate on neighborhood programs, share updates and exchange ideas. This would lead to improved implementation of neighborhood programs such as a Denton Neighborhood Academy and a Denton Block Leader Program. Renaming of Code Enforcement- the purpose of the renaming was to improve the perception by some members of the public that the officers were regulators that enforced city ordinances and regulations. Officers worked with citizens to identify property maintenance violations and provide education, resources, and time to gain voluntary compliance. The department was a conduit to connect individuals with the City and other resources to obtain assistance in remedying property issues. Suggested names for the renaming of the department for Council consideration included (1) Community Standards and Compliance Division, (2) Community Services, (3) Community Enhancement Division, or (4) Community Improvement Services Division. Staff was recommending Community Standards and Compliance Division. Council Member Roden was not sure that the proposed name got away from the perception of regulators. "Standards and Compliance" still had that perception. He also felt that the title of "Officer" would still have that perception. Mayor Burroughs was in agreement with Option 44 Mayor Pro Tem Kamp agreed with Council Member Roden on the perception of Community Standards and Compliance Division. Council Member Engelbrecht felt that the big issue was to provide direction on the goals of department from a Council standpoint. There were two issues to consider for goals. One was the law when a violation to moved to a citation and the need to have some teeth for enforcement. The other issue was voluntary compliance. Council Member Hawkins stated that he liked "enhancement' and did not like "compliance and standards ". Council Member King stated that he liked Option 44 and cautioned not to have too much teeth right off the bat which might result in overkill of the issue. Mayor Burroughs stated that the outcome was what was important to improve the look of the community. He suggested emphasizing "assistance" rather than the punitive nature. He felt it City of Denton City Council Minutes September 17, 2013 Page 9 was important to give equal appreciation or sense within the City and the staff just as much credit if a door hanger was used or staff communicated with an individual about a problem. Council Member Roden stated that as the process developed more towards neighborhood improvement programs and away so much from code enforcement, some individuals in the department might be reassigned to other areas to assist citizens. He felt other departments might also be included such as Parks and the Police in the process. Council Member Engelbrecht suggested issuing a thank you to the citizen after the problem was abated. He suggested "Community Improvement and Services Resources Division" for a possible name. Consensus of the Council was to use Option 44 or include the additional wording as suggested by Council Member Engelbrecht. 6. Receive a report, hold a discussion, and give staff direction regarding the FY 2013 -14 City Manager's Proposed Budget, Capital Improvement Program, and Five -Year Financial Forecast. City Manger Campbell stated that this item was only a place holder if Council needed more budget discussion. Mayor Pro Tem Kamp asked if funding was included for the Park Foundation position. Chuck Springer, Director of Finance, stated correct and that all the optional items presented at the last meeting were included in the budget. Council Member Roden recommended that during the next budget cycle, creative ways be explored for other options to a tax increase and not cut all supplemental packages. Following the completion of the Work Session, the Council convened into a Closed Meeting to consider the following: 1. Closed Meeting: A. Deliberations Regarding Certain Public Power Utilities: Competitive Matters - Under Texas Government Code Section 551.086. 1. Receive competitive public power information from staff in the form of a proposed operating budget for Denton Municipal Electric (DME) for the upcoming fiscal year, including without limitation, revenues, expenses, commodity volumes, and commitments, and the direction of DME; and discuss, deliberate, consider adoption of the budget and other matters, and provide staff with direction regarding such matters. This item was not considered. City of Denton City Council Minutes September 17, 2013 Page 10 B. Deliberations regarding consultation with the City Attorney - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. 1. Receive a report and hold a discussion regarding legal issues on matters in which the duty of the attorney to the governmental body under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with the provisions of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. Also hold a discussion regarding granting economic development incentives to Tetra Pak with respect to expansion of a manufacturing facility and development of a national headquarters facility. This discussion shall include commercial and financial information the City Council has received from Tetra Pak which the City Council seeks to have locate, stay, or expand in or near the territory of the city, and with which the City Council is conducting economic development negotiations; including the offer of financial or other incentives. C. Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. 1. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, and generally located in the 2500 block of East McKinney Street. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton 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 proceeding or potential litigation. 2. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the Thomas Toby Survey, Abstract No. 1288, City of Denton, Denton County, Texas, and generally located at the south east and north east corners of Loop 288 and Locust Street. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton 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 proceeding or potential litigation. City of Denton City Council Minutes September 17, 2013 Page 11 3. Discuss, deliberate and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the O.S. Brewster Survey, Abstract No. 56, Denton County, Texas, and located generally in the 2200 Block of South Bonnie Brae Street, City of Denton, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition or condemnation of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton 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 proceeding or potential litigation. 4. Discuss, deliberate, and receive further information regarding the purchase of certain real property interests located in the R.H. Hopkins Survey, Abstract No. 1694, City of Denton, Denton County, Texas, and generally located along the 1800 block of Colorado Boulevard and the 1500 block of Angelina Bend Drive. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton 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 proceeding or potential litigation. D. Consultation with Attorneys - Under Texas Government Code Section 551.071. 1. Receive a report and hold a discussion with the City's attorneys regarding the contract between the City of Denton and Ecotality Inc., dated September 18, 2012 where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton 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 proceeding or potential litigation. 2. Consult with City's attorneys regarding Item 4 5U of the September 17, 2013 Regular Meeting Agenda, as it concerns legal issues associated with that item where a public discussion of this legal matter would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. E. Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074. City of Denton City Council Minutes September 17, 2013 Page 12 1. Deliberate and discuss the appointment and duties of public officers to boards or commissions exercising discretionary or rile making power as opposed to purely advisory powers, which includes without limitation the Health and Building Standards Commission, the Historic Landmark Commission, the Planning and Zoning Commission, and the Zoning Board of Adjustment. 2. Review and discuss the duties and goals for the City Manager, City Attorney, and Municipal Judge. This item was not considered. Regular Meeting of the Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney, Denton, Texas. 1. PLEDGE OF ALLEGIANCE The Council and members of the public recited the Pledge of Allegiance to the U. S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations /Awards 1. Blood Cancer Awareness Month Mayor Burroughs presented the proclamation for Blood Cancer Awareness Month. 2. Constitution Week Mayor Burroughs presented the proclamation for Constitution Week. 3. CITIZEN REPORTS There were no citizen reports for this section of the meeting. 4. BUDGET ITEMS FOR INDIVIDUAL CONSIDERATION Ordinance No. 2013 -225 A. Consider adoption of an ordinance of the City of Denton, Texas, levying the ad valorem property tax of the City of Denton, Texas, for the year 2013, on all taxable property within the corporate limits of the city on January 1, 2013, and adopting a tax rate of $0.68975 per $100 of valuation for 2013; providing revenues for payment of current municipal maintenance and operation expenses and for payment of interest and principal on outstanding City of Denton debt; providing for limited exemptions of certain homesteads; providing for City of Denton City Council Minutes September 17, 2013 Page 13 enforcement of collections; providing for a severability clause; and providing an effective date. Chuck Springer, Director of Finance, presented the information concerning the levying of the property tax. This ordinance would also include an increase in over 65 exemption to $50,000. Council Member Hawkins motioned, Council Member King seconded to adopt the ordinance. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. Ordinance No. 2013 -226 B. Consider adoption of an ordinance of the City of Denton, Texas, approving the 2013 tax rolls; and providing an effective date. Chuck Springer, Director of Finance, stated that this ordinance was a requirement of State law. In order to levy the tax rate, Council had to approve the tax roll. Council Member Gregory motioned, Council Member Roden seconded to adopt the ordinance. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. Ordinance No. 2013 -227 C. Consider adoption of an ordinance of the City of Denton, Texas, adopting the Fiscal Year 2013 -2014 Annual Program of Services (Budget) and the Capital Improvement Program of the City of Denton, Texas, for the fiscal year beginning on October 1, 2013, and ending on September 30, 2014; and declaring an effective date. Chuck Springer, Director of Finance, stated that this item would approve the proposed budget for all city services. The proposal included the changes recommended by Council on September 10th including a separate fund for the Downtown Reinvestment Fund. Mayor Burroughs noted that there was a Speaker Card submitted for this item. Dan King, President of Mayday Manufacturing, spoke support of the budget. Mayor Pro Tem Kamp motioned, Council Member Hawkins seconded to adopt the ordinance. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. Ordinance No. 2013 -228 D. Consider adoption of an ordinance of the City of Denton, Texas, ratifying the adoption of the Fiscal Year 2013 -14 Annual Program of Services (Budget) and the Capital Improvement Program of the City of Denton, Texas, for the fiscal City of Denton City Council Minutes September 17, 2013 Page 14 year beginning October 1, 2013, and ending on September 30, 2014 when the Budget will raise more revenue from property taxes than last year's budget; and providing an effective date. Chuck Springer, Director of Finance, stated that State law required approval of this ordinance when any budget raised revenue that exceeded the prior year. A separate motion was needed to ratify the budget. Council Member Roden motioned, Council Member Engelbrecht seconded to adopt the ordinance. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. 5. BUDGET CONSENT AGENDA Council Member King motioned, Mayor Pro Tem Kamp seconded to adopt the Budget Consent Agenda and accompanying ordinances and resolution with the substitute Alternate 2 version of the ordinance for Item U. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. Ordinance No. 2013 -229 A. Consider adoption of an ordinance adopting a schedule of fees for use of certain park facilities; superseding all prior fees in conflict with such schedule and providing for severability and an effective date. The Parks, Recreation and Beautification Board recommends approval (5 -0). Ordinance No. 2013 -230 B. Consider adoption of an ordinance of the City of Denton, Texas amending the Schedule of Rates for Solid Waste Service contained in Ordinance No. 2012- 212. As authorized by Chapter 24 of the Code of ordinances of the City of Denton, Texas; providing that the provisions of Sections 26 -3, 26 -4, 26 -5, 26 -7, 26 -8(a), and 26 -9 of the Code of Ordinances of the City of Denton, Texas shall expressly apply to City of Denton Solid Waste Service and Recycling Service; providing for the amendment to the Residential Refuse and Recycling Collection Services Rates and Provisions (Schedules SWR and SWRR); amending the Multi - Family Household Item Collection Services Rates and Provisions (Schedule MFR and SWMFS); amendment to the Commercial Solid Waste Refuse Collection Services and Dumpster Rates (Schedule SWC); amendment to the Commercial Recycling Services Rate and Provisions (Schedule SWCR); amendment to the Constriction, Deconstruction, and Demolition Materials Services Rate and Provisions (Schedule SWC &D); an amendment to the Sanitary Landfill Services Processing and Disposal Rates and Provisions (Schedule SWL); providing for a repealer; providing for a severability clause; and providing an effective date. The Public Utilities Board recommends approval (6 -0). City of Denton City Council Minutes September 17, 2013 Page 15 Ordinance No. 2013 -231 C. Consider adoption of an ordinance amending the schedule of electric rates contained in Ordinance No. 2012 -209 for electric service; amending the provisions of the Residential Service Rate Schedule (Schedule RES); amending the provisions of the Residential Renewable Energy Service Rider (Schedule RG); adding the provisions of the Residential Prepaid Service Schedule (Schedule RPP); amending the provisions of the General Service Small Schedule (Schedule GSS); amending the provisions of the General Service Medium Schedule (Schedule GSM); amending the provisions of the General Service Large Schedule (Schedule GSL); amending the provisions of the General Time of Use Schedule (Schedule TGS); amending the provisions of the Local Government Small Schedule (Schedule G2); amending the provisions of the Local Government Schedule (Schedule G1); amending the provisions of the Weekend Service Schedule (Schedule WK); amending the provisions of the Athletic Field Schedule (Schedule AF); amending the provisions of the Street Lighting Schedule (Schedule LS); amending the provisions of the Traffic Lighting Schedule (Schedule LT); amending the provisions of the Unmetered School Zone /Crossing Flashers Schedule (Schedule UFL); amending the provisions of the Unmetered Traffic Lights Schedule (Schedule ULT); amending the provisions of the Unmetered Security Camera Schedule (Schedule USC); amending the provisions of the Other Lighting Schedule (Schedule LO); amending the provisions of the Security Lighting Schedule (Schedule DD); amending the provisions of the Decorative Downtown Lighting Schedule (Schedule DDL); amending the provisions of the Non Standard Street Lighting Schedule (Schedule DSL); amending the provisions of the Temporary Service Schedule (Schedule T1); providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -232 D. Consider adoption of an ordinance amending the schedule of engineering fees contained in Ordinance No. 2012 -210; providing a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -233 E. Consider adoption of an ordinance of the City of Denton, Texas providing for the schedule of miscellaneous fees, deposits, billings and procedures for administrative services to city utilities customers contained in Ordinance No. 2012 -211; amend meter reconnection process charge; providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -234 F. Consider adoption of an ordinance amending the schedule of wastewater rates contained in Ordinance No. 2012 -213; providing for an amendment in the rates for residential wastewater service (Schedule SR); amending the mobile home park wastewater service (Schedule SMFl); amending the commercial and industrial wastewater service (Schedule SC); amending the commercial /industrial City of Denton City Council Minutes September 17, 2013 Page 16 wastewater service which measures with dedicated water meters (sub- meters) (Schedule SCD); amending the commercial /industrial wastewater service which measures with dedicated water meters (sub - meters) (Schedule SCS); amending the septage & chemical toilet disposal at the pecan creek water reclamation plant septage transfer station (Schedule SCH); amending the equipment services facilities and restaurant & food service establishments wastewater service (Schedule SEE); amending the metered wastewater inside and outside corporate limits (Schedule SM); amending the sale of treated wastewater effluent (Schedule SGE); amending the wholesale wastewater treatment service (Schedule SSC); amending the wastewater tap and manhole fees (Schedule ST); amending the collection and transportation services permit (Schedule SWP); providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -235 G. Consider adoption of an ordinance amending the schedule of water rates contained in Ordinance No. 2012 -214 for water service rates and water rates; amending the residential water service rate (Schedule WR); amending the commercial /industrial water service rate (Schedule WC); amending the metered water from fire hydrant rate (Schedule WFH); amending the wholesale treated water service rate to the Upper Trinity Regional Water District (Schedule WW); amending the wholesale raw water service rate to Upper Trinity Regional Water District (Schedule WRW); amending the wholesale raw water pass - through rate to Upper Trinity Regional Water District from Lake Chapman into Lake Lewisville (Schedule WCL); amending the water tap and meter fees; providing for a repealer; providing for a severability clause; and providing for an effective date. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -236 H. Consider adoption of an ordinance adopting a new Section 2 -160 of the City Code which establishes a maximum fine cap for overdue Library items when items are returned in good condition; repealing all ordinances in conflict therewith; providing a severability clause; providing for a penalty clause; and providing for an effective date. The Library Board recommends approval (4 -0). Ordinance No. 2013 -237 L Consider adoption of an ordinance of the City Council of the City of Denton, Texas, establishing a Downtown Reinvestment Fund; defining and committing certain revenues of the City; providing a severability clause; and providing an effective date. The Audit/Finance Committee recommends approval (3 -0). Ordinance No. 2013 -238 J. Consider adoption of an ordinance accepting competitive bids by way of an Interlocal Agreement with Tarrant County and awarding a contract for the purchase of nine (9) Chevrolet Tahoes for the City of Denton Police Department; providing for the expenditure of funds therefor; and providing an effective date (File 5335- awarded to Johnson Grayson Automotive, Inc in the amount of $245,706.75). City of Denton City Council Minutes September 17, 2013 Page 17 Ordinance No. 2013 -239 K. Consider adoption of an ordinance awarding a contract for the purchase of software maintenance for the City of Denton for continued vendor support of the Oracle EnterpriseOne (formerly PeopleSoft EnterpriseOne (formerly JD Edwards OneWorld)) software as awarded by the State of Texas Department of Information Resources (DIR) through the Go DIRect Program, Contract Number DIR- VPC -03 -018; providing for the expenditure of funds therefor and providing an effective date. (File 3100 awarded to Oracle America, Inc. in the three (3) year not -to- exceed amount of $550,000). Ordinance No. 2013 -240 L. Consider adoption of an ordinance awarding the expenditure of funds for service and support for the City of Denton for continued vendor support of wireless access for mobile data computers and devices as awarded by the State of Texas Department of Information Resources (DIR) Contract Number DIR -SDD -1777; providing the expenditure of funds therfor and providing an effective date (File 3561 awarded to AT &T Mobility in the three (3) year not -to- exceed amount of $886,207). Ordinance No. 2103 -241 M. Consider adoption of an ordinance awarding a contract for the purchase of security products and continued vendor support of the Palo Alto Firewall software as awarded by the State of Texas Department of Information Resources (DIR) through the Go DIRect Program, Contract Number DIR -SDD -1855; providing for the expenditure of funds therefor and providing an effective date. (File 4970 - awarded to Solid Border, Inc. in the three (3) year not -to- exceed amount of $300,000). Ordinance No. 2013 -242 N. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving three (3) year software maintenance for continued vendor support of the Geographic Information System (GIS) software, which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 3880 awarded to Environmental Systems Research Institute (ESRI) in the three (3) year not -to- exceed amount of 210,000). Ordinance No. 2013 -243 O. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving three (3) year software maintenance for continued vendor support of the Denton Municipal Electric (DME) Interactive Voice Response and associated software modules along with new hardware and software upgrades, which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 3881 awarded to Milsoft Utility Systems in the three (3) year not -to- exceed amount of $260,000). City of Denton City Council Minutes September 17, 2013 Page 18 Ordinance No. 2013 -244 P. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving three (3) year software maintenance for continued vendor support of the TriTech Public Safety System and associated modules used for Police and Fire Department Dispatching and Records Management, which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 2640 awarded to TriTech Software Systems in the three (3) year not -to- exceed amount of $700,000). Ordinance No. 2013 -245 Q. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving three (3) year software subscription for the continued product upgrades and support of Summation 360, a hosted solution for the Tele- Works System, which is available from only one source and in accordance with Chapter 252.022 of the Texas local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 3869 awarded to Tele- Works, Inc. in the three (3) year not -to- exceed amount of $260,000). Ordinance No. 2013 -246 R. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving three (3) year software maintenance for continued vendor support of the Municipal Court Incode software and hosted Insite web service, which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 4771 awarded to Tyler Technologies, Inc. in the three (3) year not -to- exceed amount of $260,000). Ordinance No. 2013 -247 S. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving three (3) year software maintenance for continued vendor support of the hosted Millennium Library System and associated hardware and software modules, which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 3224 awarded to Innovative Interfaces, Inc. in the three (3) year not -to- exceed amount of $295,000). Resolution No. R2013 -029 T. Consider approval of a resolution approving the City of Denton's Strategic Plan and Key Performance Indicators for FY 2013 -14; and providing for an effective date. City of Denton City Council Minutes September 17, 2013 Page 19 Ordinance No. 2013 -248 U. Consider adoption of an ordinance of the City of Denton, Texas setting Planning and Development Fees and Road Damage Remediation Fee Calculation Formula relating to gas well drilling and production in the City of Denton and its Extraterritorial Jurisdiction; repealing Section 2 of Ordinance 2011 -100; and setting an effective date. 6. CONSENT AGENDA Council Member King motioned, Council Member Hawkins seconded to approve the Consent Agenda and accompanying ordinances and resolutions. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. Ordinance No. 2013 -249 A. Consider adoption of an ordinance of the City of Denton, Texas, authorizing the execution of a Third Amendment to Right of Entry and possession, by and between the City of Denton ( "City ") and the Denton County Transportation Authority ( "DCTA "), amending that certain right of entry and possession, between the City and DCTA, dated April 17, 2012, Ordinance 2012 -072, granting DCTA access to the Downtown Denton Transit Center ( "DDTC) and certain lands surrounding the DDTC, located in the Hiram Sisco Survey, Abstract Number 1184, to conduct public transportation related operations; and providing an effective date. Ordinance No. 2013 -250 B. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager or his designee to execute a Contract of Sale (herein so called), as attached hereto and made a part hereof as Exhibit "A ", by and between Brian Carter and Brenda Carter (the "Owner "), and the City of Denton, (the "City "), regarding the sale by Owner and purchase by the City of a fee interest in land consisting of 1.127 acres being situated in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, located generally in the 2500 block of East McKinney Street, for the public use of expansion, constriction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and strictures, the "Project ", for the purchase price of One Hundred Forty -Two Thousand Three Hundred Sixty Seven Dollars and 15 /100 ($142,367.15); as prescribed in the Contract of Sale; authorizing the City Manager or his designee to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -251 C. Consider adoption of an ordinance of the City of Denton, Texas approving a Contract of Sale (herein so called), as attached hereto and made a part hereof as Exhibit "A ", by and between Floyd Lee Phillips (the "Owner "), and the City of City of Denton City Council Minutes September 17, 2013 Page 20 Denton (the "City "), regarding the sale by Owner and purchase by the City of a fee interest in land consisting of 1.127 acres being situated in the T.M. Downing Survey, Abstract No. 346, City of Denton, Denton County, Texas, located generally in the 2500 block of East McKinney Street, for the public use of expansion, constriction, maintenance, operation, and improvement of electric transmission and distribution lines, facilities, and strictures (herein the "Project "), for the purchase price of Twelve Thousand Two Hundred Seven Dollars and 75/100 ($12,207.75); authorizing the City Manager or his designee to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -252 D. Consider adoption of an ordinance finding that a public use and necessity exists to acquire fee simple title in the surface estate only with surface restrictions for mineral owner(s) to a 1.127 acre tract situated in the T.M. Downing Survey, Abstract No. 346, located in the City of Denton, Denton County, Texas, as more particularly described on Exhibit "A ", attached hereto and made a part hereof, located generally in the 2500 block of East McKinney Street, (the "Property Interests "), for the public use of expanding and improving the Denton Municipal Electric distribution and transmission systems, and constricting substation infrastructure; authorizing the City Manager or his designee to make an offer to (1) the Heirs of Annie Bell Jenkins, James William Tyson, Nettie Jane Nicldess, being the heirs of the estate of Robert Lee Tyson, and Shirley Jeannene Wright McCrory, Independent Executor of the estate of Ruthie Frances Tyson Wright, deceased (collectively, the "Owner "); (2) successors in interest to the owner to the property interests; or (3) any other owners of the property interests, as may be applicable, to purchase the property interests for the purchase price of One Hundred Forty Six Thousand Four Hundred Ninety Three dollars and no cents ($146,493.00) (proportionate to each owner), and other consideration, as prescribed in the Contract of Sale (the "Agreement "), as attached hereto and made a part hereof as Exhibit "B "; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (6- 0). Ordinance No. 2013 -253 E. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager or his designee to execute an Easement Purchase Agreement (herein so called), as attached hereto and made a part hereof as Exhibit "A ", by and between Melvin R. Haisler, Mary Ann McCutcheon, J.B. Haisler, Jr., individually and as Trustee of the J.B. Haisler, Jr. Trust (the "Owner "), and the City of Denton (the "City "), regarding the sale by Owner and purchase by the City of two easements consisting of 6.841 and 0.173 acres, respectively, being situated in the Thomas Toby Survey, Abstract No. 1288, City of Denton, Denton County, Texas, located generally on the south and north sides of S.H. Loop 288, respectively, east of Farm to Market Road 2164, for the public use of expansion, constriction, maintenance, operation, and improvement of electric transmission City of Denton City Council Minutes September 17, 2013 Page 21 and distribution lines, facilities, and strictures (herein, the "Project "), for the combined purchase price of Six Hundred Seventy Thousand and No /100 Dollars ($670,000.00); authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transaction contemplated by the easement purchase agreement; authorizing the expenditure of funds, therefor; and providing an effective date. The Public Utilities Board recommends approval (6 -0). Approved the Noise Exception requested below. F. Consider a request for an exception to the Noise Ordinance for the purpose of the 3rd Annual Komen North Texas Denton Race for the Cure to be held in South Lakes Park Saturday, September 28, 2013, from 6 a.m. to 11 a.m. Amplified sound is needed for public announcements regarding race times and to play music during event. The exception is specifically requested to increase sound levels from 70 to 75 decibels. Staff recommends approval of request. Ordinance No. 2013 -254 G. Consider adoption of an ordinance of the City Council of the City of Denton, Texas, approving a funding agreement between the City of Denton and the Denton Affordable Housing Corporation; providing for the terms of said contract; authorizing the City Manager to execute the agreement and to expend Home Investment Partnership Program funds with respect to the agreement; and providing for an effective date. Ordinance No. 2013 -255 H. Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for concrete repair and installation services including curb and gutter replacement and flat work for various City of Denton departments; providing for the expenditure of funds therefor; and providing an effective date (RFP 5241- awarded to Floyd Smith Concrete, Inc. in the not -to- exceed amount of $10,000,000). Ordinance No. 2013 -256 L Consider a recommendation to the City Council to adopt an ordinance rejecting any and all competitive proposals for RFP 5218- Hangar Development at the Denton Enterprise Airport for the City of Denton, or take other appropriate action with regard to such proposals; and providing an effective date. The Council Airport Committee recommends approval (2 -0). Ordinance No. 2013 -257 J. Consider adoption of an ordinance approving the expenditure of funds for a three (3) year contract with Motorola Solutions, Inc. for maintenance services for radio communications network equipment for Denton Municipal Electric (DME) available from only one source in accordance with Texas Local Government Code 252.022, exempting such purchases from requirements of competitive bids; providing for the expenditure of funds therefor; and providing an effective date (File 4823 - Purchase of Three (3) Year Maintenance Services for Radio Communications Network for DME in the annual amount of $31,999.92, for a City of Denton City Council Minutes September 17, 2013 Page 22 three (3) year not -to- exceed total of $95,999.76. The Public Utilities Board recommends approval (6 -0). Ordinance No. 2013 -258 K. Consider adoption of an ordinance approving a Third Amendment to a Commercial Operator Airport Lease Agreement between the City of Denton, Texas and Alan Ritchey, Inc. for assignment to Nebrig Properties, L.P.; and providing an effective date. The Council Airport Committee recommends approval (2 -0). Approved the minutes listed below. L. Consider approval of the minutes of: August 13, 2013 August 20, 2013 Ordinance No. 2013 -259 M. Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement with the City of Corinth, Texas under Section 791.011 of the Texas Government Code, to authorize the City of Denton to provide various Information Technology resources for the City of Corinth; authorizing the acceptance of funds from the City of Corinth therefor; and declaring an effective date (File 3839 - Interlocal Agreement with the City of Corinth). Resolution No-2013-030 N. Consider approval of a resolution of the City of Denton, Texas calling a public hearing to consider establishing a Reinvestment Zone XI for Tetra Pak, ratifying prior actions, and declaring an effective date. Ordinance No. 2013 -260 O. Consider adoption of an ordinance awarding a contract for the purchase of a Networked Video Surveillance Camera System for the City of Denton Service Center and additional locations as needed, as awarded by the State of Texas Department of Information Resources (DIR) through the Go DIRect Program, Contract Number DIR -SDD -1722; providing for the expenditure of funds therefor and providing an effective date (File 5233- awarded to Sigma STS 360, LLC in the not -to- exceed amount of $221,307). 7. ITEMS FOR INDIVIDUAL CONSIDERATION A. Consider nominations /appointments to the City's Boards & Commissions. 1. Community Development Advisory Committee 2. Historic Landmark Commission 3. Human Services Advisory Committee 4. Public Art Committee 5. Zoning Board of Adjustment City of Denton City Council Minutes September 17, 2013 Page 23 The following individuals were nominated: Community Development Advisory Committee — Jodi Vicars -Nance Historic Landmark Commission — Peggy Riddle; Alyssa Stevenson Human Services Advisory Committee — Anita Martinez Strickland Council Member King motioned, Council Member Engelbrecht seconded to approve the nominations. On roll call vote: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins — "aye ". Motion carried unanimously. 8. PUBLIC HEARINGS There were no public hearings for this meeting. 9. CITIZEN REPORTS There were no citizen reports for this section of the meeting. 10. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Mayor Pro Tem Kamp invited citizens to the Blues Fest on Saturday and Sunday. Council Member King invited citizens to the Wild Beast Feast coming later in September. B. Possible Continuation of Closed Meeting under Sections 551.071 - 551.086 of the Texas Open Meetings Act. There was no continuation of the Closed Meeting. City of Denton City Council Minutes September 17, 2013 Page 24 With no further business, the meeting was adjourned at 7:59 p.m. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS hi,dM6 aa� l Vu:druffl AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Airport ACM: Jon Fortune YT SUBJECT Consider adoption of an ordinance authorizing the City Manager, or his designee, as Denton's authorized representative, to accept on behalf of the City of Denton an offer from the Texas Department of Transportation (TxDOT) relating to a grant supplement for preparation of a Master Plan for Development at the Denton Enterprise Airport; confirming agreement to pay additional cost in the amount of $114,241; and, providing an effective date. The Airport Advisory Board recommends approval 4 -0. BACKGROUND Following is a breakout of additional work proposed by Airport Staff to be included in the 2012 Master Plan for Airport Development (Master Plan): Phase II Master Plan Environmental Assessment ....................... $61,367 Water Master Plan ........................... ............................... $74,280 Surface Transportation Master Plan ....... ............................... $23,179 General Planning Expenses ................. ............................... $10,646 Total ...... $169,472 Less: TxDOT Funding ....... $ 55,230 Additional City Cost (Airport Fund) ...... 114 242 Additional TxDOT funding for this work represents ninety percent (90 %) of the cost for an Environmental Assessment which is required for the future constriction of a west -side runway. The runway grant offer from TxDOT Aviation is pending. The Water Master Plan and Surface Master Plan Scope of Service are attached. As indicated in the scope, the Water and Wastewater Plan requires multiple steps working with the City Utility Administration, Engineering Division and various Airport administration representatives. The Agenda Information Sheet October 15, 2013 Page 2 actual plan development requires information feedback and drafting existing and future utility service lines onto the Airport Layout Plan. The total cost for this work is Seventy Four Thousand Two Hundred Eighty Dollars ($74,280.00). Both the Water Master Plan and the Surface Transportation Master Plan will include development of the east and west sides of the Airport. These sponsor funded plans are necessary for completion of the Master Plan and to accommodate the platting of the Airport property. To accommodate new development on the Airport property, the entire Airport will be filed as a perimeter plat with utility and surface transportation routes shown on the Airport Layout Plan to replace existing and future easements. This is necessary because the City cannot grant itself an easement and future development needs to have utilities and surface access identified for building permit purposes. In addition to the sponsor funded Water and Surface Transportation Master Plans, the TxDOT Aviation funding for the Environmental Assessment will be for ninety percent (90 %) of the total cost of Sixty One Thousand Three Hundred Sixty Seven Dollars ($61,367.00). The balance, or ten percent (10 %), of the Environmental Assessment cost will have to be funded by the City through the Airport Fund in the amount of Six Thousand One Hundred Thirty Seven Dollars ($6,137.00). The total additional cost of the 2012 Master Plan over the approved budget of Three Hundred Seventy Five Thousand Dollars ($375,000.00) is One Hundred Fourteen Thousand Two Hundred Forty Two Dollars ($114,242.00), which is Thirty One Percent (31.0 %) over the original budget. RECOMMENDATION The Airport Advisory Board considered this additional scope of service for the 2012 master Plan at their meeting on October 9, 2013 and recommended approval by a vote of 4 -0. Airport Staff recommends approval of this work to support current development at Denton Enterprise Airport which requires re- platting the Airport property and future development of a west -side runway. EXHIBITS 1. Ordinance 2. Scope of Additional Services Respectfully submitted: Quentin Hix, Director of Aviation ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, AS DENTON'S AUTHORIZED REPRESENTATIVE, TO ACCEPT ON BEHALF OF THE CITY OF DENTON AN OFFER FROM THE TEXAS DEPARTMENT OF TRANSPORTATION (TXDOT) RELATING TO A GRANT SUPPLEMENT FOR PREPARATION OF A MASTER PLAN FOR AIRPORT DEVELOPMENT AT THE DENTON ENTERPRISE AIRPORT; CONFIRMING AGREEMENT TO PAY ADDITIONAL PROJECT COST IN THE AMOUNT OF $114,241; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of Denton, Texas passed Ordinance 2011 -240 on December 6, 2011 to authorize a grant funded Master Plan for Denton Enterprise Airport; and WHEREAS, the project includes review of current and future uses of land at Denton Enterprise Airport and incorporates these land uses onto an Airport Layout Plan; and WHEREAS, the City of Denton has received a scope of work from the Texas Department of Transportation for the Master Plan which includes a supplemental plan for Water, Wastewater and Drainage Development Plans; and WHEREAS, total additional project cost is estimated to be $169,472, and the City of Denton will be responsible for $114,241 of the additional project costs; and WHEREAS, the City of Denton names the Texas Department of Transportation as its agent for the purposes of receiving and disbursing all funds for these Master Plan supplements and for the administration of contracts necessary for the implementation of the Master Plan; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City of Denton hereby directs the City Manager to execute on behalf of the City of Denton, at the appropriate time, and with the appropriate authorizations of this governing body, all contracts and agreements with the State of Texas, represented by the Texas Department of Transportation, and such other parties as shall be necessary and appropriate for the implementation of the supplemental Master Plan for Development of the Denton Enterprise Airport. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY Cs APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � r EXCERPT BASIC SERVICES TO BE PROVIDED BY THE CONSULTANT TxDOT CSJ No. 12MPDNTON (2012 Master Plan) Task 3.7 — Water and Wastewater ■ Establish water and wastewater demand projections for the Airport based upon proposed land uses identified in the Preferred ADP. Conduct a meeting with the Sponsor, Agent, and the City water and wastewater staff to review demand projections and local design criteria. This meeting will be attended by the following Consultant Staff: Project Manager. and Senior Utility Planner. ■ Develop potable water and wastewater models depicting the existing systems and additional components required to serve future Airport development identified on the Preferred ADP. ■ Use the updated water and wastewater models generated in this task to develop an overall Airport water and wastewater map depicting existing and proposed water and wastewater system components as well as components, corridors, etc. that may interface / overlap with infrastructure_ improvements planned by municipal entities. ■ Provide an interim submittal of the proposed utility master plan to the Sponsor, Agent, and City of Denton Engineering Staff and conduct a review meeting with the same to discuss the plan developed in this task and gather feedback. This meeting will be attended by the following Consultant Staff: Project Manager and Senior Utility Planner. ■ Perform up to one revision to the utility master plan before incorporating the findings into the Preferred ADP and Working Paper Narrative. Task 3.8 — Transportation • Develop automobile traffic projections for the Preferred ADP to a future design year. • Finalize development of on- airport transportation improvement concepts that are required to accommodate the Preferred ADP. • Prepare programmatic cost estimates for on- airport roadway improvements. Task 3.9 Following completion of the Drainage and Water / Wastewater Master Plans, Consultant will coordinate with the Sponsor to conduct a final public forum, informational meeting with Airport stakeholders to review the Preferred ADP. This meeting will be attended by following Consultant staff: Project Manager and Senior Airport Planner. B -6 hi'dM6 aa� l Vu:druffl AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Airport ACM: Jon Fortune SUBJECT Consider adoption of an ordinance of the City of Denton authorizing the City Manager, or his designee, to execute on behalf of the City of Denton an acceptance of an offer from the Texas Department of Transportation relating to a grant for the Routine Airport Maintenance program; authorizing the City Manager to expend funds provided for in the grant program; and declaring an effective date (TXDOT Project No.: AM 2014DNTO AND CSJ No.: M1418DNTO). (Airport Advisory Board recommends approval 4 -0) BACKGROUND The City of Denton has entered into grant agreements with the TxDOT Aviation Division known as the Routine Airport Maintenance Program (RAMP), since 1996. The RAMP grant provides for a fifty percent (50 %) state - funding match to the local government sponsor. The 2014 grant is capped at $50,000 of available state assistance. Airport Management has identified a number of projects that could be completed with this grant for 2014. The following is a summary of actual RAMP Grant expenditures, including the local match, for the prior three fiscal years: Proiects Asphalt Paving /Repair Concrete Paving/Repair Navigation Aids Improvements Gate Control Repair Security & Fence Repair Other Maintenance /Supplies Chemicals TOTAL 2010/2011 $61,449.00 (3) $6,312.64 (1) $16,261.25 (2) $2,503.58 (2) $ -0- $405.93 (1) $1,700.00 (1) 2011/2012 $18,746.00 (1) $51,329.60 (4) $2,610.84 (5) $6,150.00 (2) $8,104.00 (1) $10,147.00 (2) $2,882.22 (1) 2012/2013 $ -0- $51,099.00 (2) $2,049.42 (4) $ -0- $25,295.00 (2) $20,560.98(10) $894.00 (3) $88,632.40 (10) $99,969.66 (16) $99,894.40 (21) ESTIMATED SCHEDULE OF PROJECT TxDOT Aviation is requesting two signed copies of the agreement to be returned expeditiously. The State must approve its share of funding prior to the start of any project and TxDOT Aviation has requested that all projects be completed by August 31, 2014. Agenda Information Sheet October 15, 2013 Page 2 FISCAL INFORMATION The City's fifty percent (50 %) match for the $100,000 grant is $50,000, which is reflected in the 2013 Airport Budget. EXHIBITS 1. Draft Ordinance 2. TxDOT Grant Agreement Respectfully submitted: Patrick Carreno Airport Operations Manager ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE ON BEHALF OF THE CITY OF DENTON AN ACCEPTANCE OF AN OFFER FROM THE TEXAS DEPARTMENT OF TRANSPORTATION RELATING TO A GRANT FOR THE ROUTINE AIRPORT MAINTENANCE PROGRAM; AUTHORIZING THE CITY MANAGER TO EXPEND FUNDS PROVIDED FOR IN THE GRANT PROGRAM; AND DECLARING AN EFFECTIVE DATE (TXDOT Project No.: AM 2014DNTO AND CSJ No.: M1418DNTO). WHEREAS, the City Manager recommends that the City accept an Agreement with the Texas Department of Transportation ( "TxDOT ") providing a grant of $50,000 for the Routine Airport Maintenance Program and requiring the City to provide $50,000 in matching funds; and WHEREAS, the City Council deems the acceptance of this Agreement with TxDOT to be in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager of the City of Denton, or his designee, is hereby authorized to execute on behalf of the City of Denton an acceptance of an offer from the Texas Department of Transportation relating to a grant for Routine Airport Maintenance Program, a copy of such grant being attached hereto and made a part hereof for all purposes (the "Grant Agreement "). SECTION 2. The City Manager is hereby authorized to expend such funds as are provided for in the Grant Agreement and to take all actions necessary to implement the Grant Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: :, i TEXAS DEPARTMENT OF TRANSPORTATION GRANT FOR ROUTINE AIRPORT MAINTENANCE PROGRAM (State Assisted Airport Routine Maintenance) TxDOT Project No.: AM 2014DNTO TxDOT CSJ No.: M1418DNTO Part I - Identification of the Project TO: The City of Denton, Texas FROM: The State of Texas, acting through the Texas Department of Transportation This Grant is made between the Texas Department of Transportation, (hereinafter referred to as the "State "), on behalf of the State of Texas, and the City of Denton, Texas, (hereinafter referred to as the "Sponsor "). This Grant Agreement is entered into between the State and Sponsor shown above, under the authority granted and in compliance with the provisions of the Transportation Code Chapter 21. The project is for airport maintenance at the Denton Municipal Airport. Part II - Offer of Financial Assistance For the purposes of this Grant, the annual routine maintenance project cost, Amount A, is estimated as found on Attachment A, Scope of Services, attached hereto and made a part of this grant agreement. State financial assistance granted will be used solely and exclusively for airport maintenance and other incidental items as approved by the State. Actual work to be performed under this agreement is found on Attachment A, Scope of Services. State financial assistance, Amount B, will be for fifty percent (50 %) of the eligible project costs for this project or $50,000.00, whichever is less, per fiscal year and subject to availability of state appropriations. Scope of Services, Attachment A, of this Grant, may be amended, subject to availability of state funds, to include additional approved airport maintenance work. Scope amendments require submittal of an Amended Scope of Services, Attachment A. Services will not be accomplished by the State until receipt of Sponsor's share of project costs. 09/01/2014 Page 1 of 12 Only work items as described in Attachment A, Scope of Services of this Grant are reimbursable under this grant. Work shall be accomplished by August 31, 2014, unless otherwise approved by the State. 2. The State shall determine fair and eligible project costs for work scope. Sponsor's share of estimated project costs, Amount C, shall be as found on Attaclunent A and any amendments. It is mutually understood and agreed that if, during the term of this agreement, the State determines that there is an overrun in the estimated annual routine maintenance costs, the State may increase the grant to cover the amount of the overrun within the above stated percentages and subject to the maximum amount of state funding. The State will not authorize expenditures in excess of the dollar amounts identified in this Agreement and any amendments, without the consent of the Sponsor. 3. Sponsor, by accepting this Grant certifies and, upon request, shall furnish proof to the State that it has sufficient funds to meet its share of the costs. The Sponsor grants to the State the right to audit any books and records of the Sponsor to verify expended funds. Upon execution of this Agreement and written demand by the State, the Sponsor's financial obligation (Amount C) shall be due in cash and payable in full to the State. State may request the Sponsor's financial obligation in partial payments. Should the Sponsor fail to pay their obligation, either in whole or in part, within 30 days of written demand, the State may exercise its rights under Paragraph V -3. Likewise, should the State be unwilling or unable to pay its obligation in a timely manner, the failure to pay shall be considered a breach and the Sponsor may exercise any rights and remedies it has at law or equity. The State shall reimburse or credit the Sponsor, at the financial closure of the project, any excess funds provided by the Sponsor which exceed Sponsor's share (Amount C). 4. The Sponsor specifically agrees that it shall pay any project costs which exceed the amount of financial participation agreed to by the State. It is further agreed that the Sponsor will reimburse the State for any payment or payments made by the State which are in excess of the percentage of financial assistance (Amount B) as stated in Paragraph I1 -1. 5. Scope of Services may be accomplished by State contracts or through local contracts of the Sponsor as determined appropriate by the State. All locally contracted work must be approved by the State for scope and reasonable cost. Reimbursement requests for locally contracted work shall be submitted on forms provided by the State and shall include copies of the invoices for materials or services. Payment shall be made for no more than 50% of allowable charges. 09/01/2014 Page 2 of 12 The State will not participate in funding for force account work conducted by the Sponsor. 6. This Grant shall terminate upon completion of the scope of services. Part III - Sponsor Responsibilities In accepting this Grant, if applicable, the Sponsor guarantees that: a. it will, in the operation of the facility, comply with all applicable state and federal laws, rules, regulations, procedures, covenants and assurances required by the State in connection with this Grant; and b. the Airport or navigational facility which is the subject of this Grant shall be controlled by the Sponsor for a period of at least 20 years; and C. consistent with safety and security requirements, it shall make the airport or air navigational facility available to all types, kinds and classes of aeronautical use without discrimination between such types, kinds and classes and shall provide adequate public access during the period of this Grant; and d. it shall not grant or permit anyone to exercise an exclusive right for the conduct of aeronautical activity on or about an airport landing area. Aeronautical activities include, but are not limited to scheduled airline flights, charter flights, flight instruction, aircraft sales, rental and repair, sale of aviation petroleum products and aerial applications. The landing area consists of runways or landing strips, taxiways, parking aprons, roads, airport lighting and navigational aids; and e. it shall not enter into any agreement nor permit any aircraft to gain direct ground access to the sponsor's airport from private property adjacent to or in the immediate area of the airport. Further, Sponsor shall not allow aircraft direct ground access to private property. Sponsor shall be subject to this prohibition, commonly known as a "through- the -fence operation," unless an exception is granted in writing by the State due to extreme circumstances; and f. it shall not permit non- aeronautical use of airport facilities without prior approval of the State; and g. the Sponsor shall submit to the State annual statements of airport revenues and expenses when requested; and h. all fees collected for the use of the airport shall be reasonable and nondiscriminatory. The proceeds from such fees shall be used solely for the development, operation and maintenance of the airport or navigational facility; and i. an Airport Fund shall be established by resolution, order or ordinance in the 09/01/2014 Page 3 of 12 treasury of the Sponsor, or evidence of the prior creation of an existing airport fund or a properly executed copy of the resolution, order, or ordinance creating such a fund, shall be submitted to the State. The fund may be an account as part of another fund, but must be accounted for in such a manner that all revenues, expenses, retained earnings, and balances in the account are discernible from other types of moneys identified in the fund as a whole. All fees, charges, rents, and money from any source derived from airport operations must be deposited in the Airport Fund and shall not be diverted to the general revenue fund or any other revenue fund of the Sponsor. All expenditures from the Airport Fund shall be solely for airport purposes. Sponsor shall be ineligible for a subsequent grant or loan by the State unless, prior to such subsequent approval of a grant or loan, Sponsor has complied with the requirements of this subparagraph; and j. the Sponsor shall operate runway lighting at least at low intensity from sunset to sunrise; and k. insofar as it is reasonable and within its power, Sponsor shall adopt and enforce zoning regulations to restrict the height of structures and use of land adjacent to or in the immediate vicinity of the airport to heights and activities compatible with normal airport operations as provided in Tex. Loc. Govt. Code Ann. Sections 241.001 et seq. (Vernon and Vernon Supp.). Sponsor shall also acquire and retain aviation easements or other property interests in or rights to use of land or airspace, unless sponsor can show that acquisition and retention of such interest will be impractical or will result in undue hardship to Sponsor. Sponsor shall be ineligible for a subsequent grant or loan by the State unless Sponsor has, prior to subsequent approval of a grant or loan, adopted and passed an airport hazard zoning ordinance or order approved by the State. 1. mowing services will not be eligible for state financial assistance. Sponsor will be responsible for 100% of any mowing services. 2. The Sponsor, to the extent of its legal authority to do so, shall save harmless the State, the State's agents, employees or contractors from all claims and liability due to activities of the Sponsor, the Sponsor's agents or employees performed under this agreement. The Sponsor, to the extent of its legal authority to do so, shall also save harmless the State, the State's agents, employees or contractors from any and all expenses, including attorney fees which might be incurred by the State in litigation or otherwise resisting claim or liabilities which might be imposed on the State as the result of those activities by the Sponsor, the Sponsor's agents or employees. 3. The Sponsor's acceptance of this Offer and ratification and adoption of this Grant shall be evidenced by execution of this Grant by the Sponsor. The Grant shall comprise a contract, constituting the obligations and rights of the State of Texas and the Sponsor with respect to the accomplishment of the project and the operation and maintenance of the airport. 09/01/2014 Page 4 of 12 If it becomes unreasonable or impractical to complete the project, the State may void this agreement and release the Sponsor from any further obligation of project costs. 4. Upon entering into this Grant, Sponsor agrees to name an individual, as the Sponsor's Authorized Representative, who shall be the State's contact with regard to this project. The Representative shall receive all correspondence and documents associated with this grant and shall make or shall acquire approvals and disapprovals for this grant as required on behalf of the Sponsor, and coordinate schedule for work items as required. 5. By the acceptance of grant funds for the maintenance of eligible airport buildings, the Sponsor certifies that the buildings are owned by the Sponsor. The buildings may be leased but if the lease agreement specifies that the lessee is responsible for the upkeep and repairs of the building no state funds shall be used for that purpose. 6. Sponsor shall request reimbursement of eligible project costs on forms provided by the State. All reimbursement requests are required to include a copy of the invoices for the materials or services. The reimbursement request will be submitted no more than once a month. 7. The Sponsor's acceptance of this Agreement shall comprise a Grant Agreement, as provided by the Transportation Code, Chapter 21, constituting the contractual obligations and rights of the State of Texas and the Sponsor with respect to the accomplishment of the airport maintenance and compliance with the assurances and conditions as provided. Such Grant Agreement shall become effective upon the State's written Notice to Proceed issued following execution of this agreement. PART IV - Nomination of the Agent 1. The Sponsor designates the State as the party to receive and disburse all funds used, or to be used, in payment of the costs of the project, or in reimbursement to either of the parties for costs incurred. 2. The State shall, for all purposes in connection with the project identified above, be the Agent of the Sponsor. The Sponsor grants the State a power of attorney to act as its agent to perform the following services: a. accept, receive, and deposit with the State any and all project funds granted, allowed, and paid or made available by the Sponsor, the State of Texas, or any other entity; b. enter into contracts as necessary for execution of scope of services; C. if State enters into a contract as Agent: exercise supervision and direction of the project work as the State reasonably finds appropriate. Where there is an 09/01/2014 Page 5 of 12 irreconcilable conflict or difference of opinion, judgment, order or direction between the State and the Sponsor or any service provider, the State shall issue a written order which shall prevail and be controlling; d. receive, review, approve and pay invoices and payment requests for services and materials supplied in accordance with the State approved contracts; e. obtain an audit as may be required by state regulations; the State Auditor may conduct an audit or investigation of any entity receiving funds from TxDOT directly under this contract or indirectly through a subcontract under this contract. Acceptance of funds directly under this contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the State Auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. f. reimburse sponsor for approved contract maintenance costs no more than once a month. PART V - Recitals This Grant is executed for the sole benefit of the contracting parties and is not intended or executed for the direct or incidental benefit of any third party. 2. It is the intent of this grant to not supplant local funds normally utilized for airport maintenance, and that any state financial assistance offered under this grant be in addition to those local funds normally dedicated for airport maintenance. 3. This Grant is subject to the applicable provisions of the Transportation Code, Chapters 21 and 22, and the Airport Zoning Act, Tex. Loc. Govt. Code Ann. Sections 241.001 et seq. (Vernon and Vernon Supp.). Failure to comply with the terms of this Grant or with the rules and statutes shall be considered a breach of this contract and will allow the State to pursue the remedies for breach as stated below. a. Of primary importance to the State is compliance with the terms and conditions of this Grant. If, however, after all reasonable attempts to require compliance have failed, the State finds that the Sponsor is unwilling and /or unable to comply with any of the terms of this Grant, the State, may pursue any of the following remedies: (1) require a refund of any financial assistance money expended pursuant to this Grant, (2) deny Sponsor's future requests for aid, (3) request the Attorney General to bring suit seeking reimbursement of any financial assistance money expended on the project pursuant to this Grant, provided however, these remedies shall not limit the State's authority to enforce its rules, regulations or 09/01/2014 Page 6 of 12 orders as otherwise provided by law, (4) declare this Grant null and void, or (5) any other remedy available at law or in equity. b. Venue for resolution by a court of competent jurisdiction of any dispute arising under the terms of this Grant, or for enforcement of any of the provisions of this Grant, is specifically set by Grant of the parties in Travis County, Texas. 4. The State reserves the right to amend or withdraw this Grant at any time prior to acceptance by the Sponsor. The acceptance period cannot be greater than 30 days after issuance unless extended by the State. 5. This Grant constitutes the full and total understanding of the parties concerning their rights and responsibilities in regard to this project and shall not be modified, amended, rescinded or revoked unless such modification, amendment, rescission or revocation is agreed to by both parties in writing and executed by both parties. 6. All commitments by the Sponsor and the State are subject to constitutional and statutory limitations and restrictions binding upon the Sponsor and the State (including Sections 5 and 7 of Article 11 of the Texas Constitution, if applicable) and to the availability of funds which lawfully may be applied. 09/01/2014 Page 7 of 12 Part VI - Acceptances Sponsor The City of Denton, Texas, does ratify and adopt all statements, representations, warranties, covenants, agreements, and all terms and conditions of this Grant. Executed this day of Witness Signature 20 The City of Denton, Texas Sponsor Sponsor Signature City Manager Witness Title Sponsor Title Certificate of Attorney acting as attorney for the City of Denton, Texas, do certify that I have fully examine-A the Grant and the proceedings taken by the Sponsor relating to the acceptance of the Grant, and find that the manner of acceptance and execution of the Grant by the Sponsor, is in accordance with the laws of the State of Texas. Dated at � ,,� ,6,yn , Texas, this % day of 20 Witness Signature Witness Title 09/01/2014 Page 8 of 12 Attorney's Sign ure Acceptance of the State Executed by and approved for the Texas Transportation Commission for the purpose and effect of activating and /or carrying out the orders, established policies or work programs and grants heretofore approved and authorized by the Texas Transportation Commission. STATE OF TEXAS TEXAS DEPARTMENT OF TRANSPORTATION By: Date: 09/01/2014 Page 9 of 12 Attachment A Scope of Services TxDOT CSJ No.: M1418DNTO Eligibie Scope Itemsr = Estimated,Costs State Share S `nsor are Amount A A' mount B Amount .C° GENERAL MAINTENANCE $100,000.00 $50,000.00 $50,000.00 MISCELLANEOUS $0.00 $0.00 $0.00 SPECIAL PROJECT $0.00 $0.00 $0.00 SPECIAL PROJECT $0.00 $0.00 $0.00 SPECIAL PROJECT $0.00 $0.00 $0.00 Total $100,000.00 $50,000.00 $50,000.00 Accepted by: The City of Denton, Texas Signature Title: City Manager Date: Notes: (explanations of any specifications or variances as needed for above scope items) GENERAL MAINTENANCE: As needed, Sponsor may contract for services /purchase materials for routine maintenance /improvement of airport pavements signage, drainage, approach aids lighting systems utility infrastructure fencing herbicide /application, sponsor owned and operated fuel systems hangars buildings terminal buildings and security systems• professional services for environmental compliance, approved proiect design. Special projects to be determined and added by amendment. Only work items as described in Attachment A, Scope of Services of this Grant are reimbursable under this grant. 09/01/2014 Page 10 of 12 CERTIFICATION OF AIRPORT FUND TxDOT CSJ No.: M1418DNTO The City of Denton does certify that an Airport Fund has been established for the Sponsor, and that all fees, charges, rents, and money from any source derived from airport operations will be deposited for the benefit of the Airport Fund and will not be diverted for other general revenue fund expenditures or any other special fund of the Sponsor and that all expenditures from the Fund will be solely for airport purposes. The fund may be an account as part of another fund, but must be accounted for in such a manner that all revenues, expenses, retained earnings, and balances in the account are discernible from other types of moneys identified in the fund as a whole. The City of Denton, Texas (Sponsor) By: C�� Title: -� Date: State of Texas Single Audit Requirements I, Patrick Carreno , do certify that the City of Denton will comply with all (Designated Representative) requirements of the State of Texas Single Audit Act if the City of Denton spends or receives more than $500,000 in any funding sources during this fiscal year. And in following those requirements, the City of Denton will submit the report to the audit division of the Texas Department of Transportation. If your entity did not meet the threshold of $500,000.00 in grant expenditures, please submit a letter indicating that your entity is not Teq ed to have a State Single Audit performed for the most recent audited fiscal year. Signature Airport Operations Manager Title Date 09/01/2014 Page 1 I of 12 DESIGNATION OF SPONSOR'S AUTHORIZED REPRESENTATIVE TxDOT CSJ Number: M1418DNTO The City of Denton designates, Patrick Carreno, Airport Operations Manager (Name, Title) as the Sponsor's authorized representative, who shall receive all correspondence and documents associated with this grant and who shall make or shall acquire approvals and disapprovals for this grant as required on behalf of the Sponsor. The City of Denton, Texas (Sponsor) IN Title: City Manager Date: DESIGNATED REPRESENTATIVE Mailing Address: Denton Enterprise Airport 5000 Airport Rd. Denton, TX 76207 Overnight Mailing Address: 5000 Airport Rd. Denton, TX 76207 Telephone /Fax Number: (9 4 0) 349-7736 Fax: (940) 349 -7289 Email address: patrick. Carreno @cityofdenton. com 09/01/2014 Page 12 of 12 Pudblhc V ieai -ihr AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Planning and Development ACM: John Cabrales SUBJECT — 513 -0002 (DME Pockrus Substation) Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, approving a Specific Use Permit (SUP) to allow a "Basic Utility;" a Denton Municipal Electric (DME) substation, on approximately 5.44 acres of land within a Regional Center Commercial Downtown (RCC -D) zoning district classification and use designation, located on the north side of Pockris Page Road, east of I -35, and directly west of the DCTA rail line, within the City of Denton, Denton County, Texas; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. (S13- 0002). The Planning and Zoning Commission recommends approval, subject to conditions (6 -0). BACKGROUND The subject property includes an approximate total of 5.44 acres on which Denton Municipal Electric (DME) is requesting to expand an existing electrical substation. The existing substation is developed on approximately 1.71 acres of the 5.44 acres and was originally constricted on December 1, 1986, with two expansions to add equipment on February 15, 1990 and July 8, 2001. Pursuant to Subchapter 35.5.5.2 (Permitted Uses) of the Denton Development Code (DDC), a SUP is required for a "Basic Utility" within a RCC -D zoning district. The proposed expansion is necessary to provide major electrical infrastructure improvements for the transmission system and to reconfigure the station to best meet the needs of the southern portion of the City. Specifically, the expansion is being done to recover the station to provide transmission line terminals for 6 transmission lines and place all three of the existing transformers on independent bus sections. The electrical loads served by this substation include industrial uses such as manufacturing, a wastewater treatment plant, hospitals and medical complexes, as well as residential uses. The expansion includes constriction of a 138kV transmission section which will include steel strictures, up to fourteen (14) 138kV circuit breakers, relocation of two existing transformers and the addition of one control enclosure. The existing substation is enclosed with an 8 -foot chain link fence. The applicant proposes to remove the chain link fence and constrict a 10 -foot decorative precast concrete security wall around the entire site (See Exhibit 8 for photos taken of similar security walls). The site requires a minimum of 10% landscaped area and 20% tree canopy cover. The applicant proposes over 90% landscaped area and 29% tree canopy cover. For safety purposes, the tree canopy coverage Agenda Information Sheet October 15, 2013 Page 2 calculation excludes the area within the proposed security wall in addition to a 20 -foot buffer area around the security wall. As part of the Governmental Entity Development Review Process, DME has submitted an application for a Specific Use Permit (S13 -0002) to allow an expansion on the tract to the south as well as minor plat (MP13- 0008), which is currently being reviewed by the Development Review Committee (DRC). The minor plat will include the entire 5.44 acres, which includes the 1.7 acres in which the existing substation is developed. The Governmental Entity Development Review Process shortens the development review process while ensuring that public safety, adequate facilities, regulatory compliance and appropriate environmental stewardship is achieved. Prior to the city -wide rezoning in 2002, the 1.7 acre site in which the existing Pockrus Page Substation is currently developed was zoned Light Industrial (LI) and did not require approval of a SUP. The remaining 3.73 acres was zoned Agriculture (A). Staff sent ten (10) certified notices of the public hearing to property owners within two hundred (200) feet of the subject property and fourteen (14) notices to residents and property owners within five hundred (500) feet of the property. As of this writing, staff has not received comment regarding the request. PRIOR ACTION September 11, 2013 Planning and Zoning Commission OPTIONS 1. Approve as submitted. 2. Approve with conditions. 3. Deny. 4. Postpone consideration. 5. Table item. Agenda Information Sheet October 15, 2013 Page 3 RECOMMENDATION The Planning and Zoning Commission recommends APPROVAL of S13 -0002, subject to the conditions below recommended by the Development Review Committee. The Development Review Committee recommends APPROVAL of S13 -0002, subject to the following conditions: 1. A perimeter masonry security wall shall be constricted with a minimum height of ten (10) feet. See Exhibit 7 for the location of the proposed security wall (highlighted in green) and Exhibit 8 for examples of perimeter walls; and 2. A minimum of 29% tree canopy cover is required. EXHIBITS 1. Staff Report 2. Aerial Map 3. Zoning Map 4. Future Land Use Map 5. Notification Map & Responses 6. Applicant Letter of Intent 7. Landscape Plan 8. Security Wall Examples 9. DME CIP Project Map 10. Site Photos 11. September 11, 2013, Planning and Zoning Commission Meeting Minutes 12. Ordinance Respectfully submitted: Brian Locldey, AICP, CPM Planning and Development, Director Prepared by: /0 4.1w, Michael J. Bell Associate Planner Exhibit I CITY OF DENTON DEVELOPMENT REVIEW COMMITTEE STAFF REPORT P &Z Date: September 11, 2013 TYPE: Specific Use Permit CC Date: October 15, 2013 PROJECT #: 513 -0002 Project Number: 513 -0002, DME Pockrus Substation Request: A Specific Use Permit (SUP) to allow for an expansion of an existing electrical substation onto an adjacent lot. Applicant: Teague Nall and Perkins, Inc. 1517 Centre Place Drive, Suite 320 Denton, TX 76205 Property Denton Municipal Electric Owner: 215 E. McKinney Street Denton, TX 76201 Location: Size: Existing Zoning Designation: Future Land Use: Case Planner: DRC Recommendation: Summary of Analysis The property is located on the north side of Pockrus Page Road, east of I -35 and directly west of the existing DCTA rail line. 5.44 acres +/- Regional Center Commercial Downtown (RCC -D) Regional Mixed Use Center Michael J. Bell The Development Review Committee (DRC) recommends Approval of 513 -0002, subject to conditions. Subchapter 35.5.5 of the Denton Development Code (DDC) requires approval of a Specific Use Permit (SUP) for a basic utility within a Regional Center Commercial Downtown (RCC -D) zoning district. The criteria for approval of a SUP is provided in Subchapter 35.6.4 of the DDC, which states that SUPS shall be issued only if all of the following conditions have been met: 1. That the specific use will be compatible with and not injurious to the use and enjoyment of other property nor significantly diminish or impair property values within the immediate vicinity; The Specific use iri11 be Compatible frith and not igjur'ious to the use and enjoyment of Other property and iri11 not significantly diminish of impar property values irithin the immediate vicinity. The Site is Currently developed 1j)ith an electrical sllbstatiovi. The applicant proposes to expand the substation to an adjacent tract to the south. The site is located directly west of the existing DCTA fail line. Within a quarter mile radius of the Site, all existing uses on the 1rest side of the DCTA fail line include commercial uses. The east side of the fail line includes industrial, Commercial and undeveloped land There is an existing single family subdivision; Villages of Carmel east of the subject site as well. However, the site is over 500 feet away fi°om the af()rementioned subdivision. The existing zoning district of RC'C-D requires 10% landscaped area; however, the applicant proposes over 90% landscaped area, in addition to a 10 foot dc,coi -ative precast ConCl'ete perimeter' secirr'ity 11)a11. The applicant irill use existing trees to meet the 20% tree Canopy Cover required in the RCC -D zoning district. Using the existing trees iri11 provide 29% tree Canopy Cover. The substation iri11 be unnianned and iri11 be visited infl'equently and as such frill not generate tl'affic. The Substation iri11 not generate noise, odors or f Imes. 2. That the establishment of the specific use will not impede the normal and orderly development and improvement of surrounding vacant property; The substation site is located on the west side of the existing DCTA rail line. The only vacant undeveloped property is located on the east side of the existing DCTA fail line and is located within an RCC -D zoning district. Approximately 1.7 acres of the 5.4 acres is developed irithin an electrical Substation. The expansion iri11 not impede the normal and orderly development and improvement of s urrounding vacant property. 3. That adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided; A minor plat (MP 13-0008) is currently under review for the proposed expansion to the existing substation site, as there are no public improvements required. The proposed substation expansion imposes virtually no impact on public infrastructure, as it does not use domestic water or irasteirater. There iri11 be minimal tr'affiC t0 the Site. NO f1lt1l1'e faculties are needed far the Site other than the needs of DME, irhich include an electric transmission line. 4. The design, location and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; Access into the substation site will be intentionally restricted to authorized personnel only for maintenance or monitoring. There iri11 be no public vehicular or pedestrian traffic and no parking Spaces irithin the Jbcility. The access drive from Pockrus Page Road iri11 be designed to accommodate the large trucks that may be r'equir'ed for future equipment replacement. 5. That adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration; The electrical substation will not generate offensive odor, fumes, dust, noise or vibration. 6. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and The substation site will be protected and surrounded on all sides by a ten (10) foot decorative precast concrete security wall. Except for extreme circumstances, the substation site will only be visited by Service per'Savinel. Lightivig ovl Site 11)ill be iiiivliiiial avid 11)ill not be visible f --iii ovitside of the secured area. Any additional lighting 11)i11 be directional lighting aimed at the interior of the site. 7. That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property. The landscaping proposed 11)i11 exceed the requirements of the RC'C-D zoning district. The minimum landscaped area required is 10% and the applicant proposes over 90 %. The RC'C-D zoning district requires 20% tree canopy and the applicant proposes 29% tree canopy cover. Findings of Fact 1. As part of the overall electrical transmission and distribution system, as outlined by DME's 2013 -2017 Capital Improvement Plan (CIP), the existing Pockrus Page Substation site is proposed to expand to an adjacent lot to the south in order to provide enhanced electrical service to Denton. 2. The Site is located within a Regional Center Commercial Downtown (RCC -D) zoning district and requires approval of a ,Specific Use Permit (SUP)for a "Basic Utility. " 3. The existing substation was constructed on an approximately 1.7 acre tract in December, 1986 with two expansions in February, 1990 and July, 2001 to add equipment. 4. Prior to the city -wide zoning change in 2002, the existing substation site was located within a Light Industrial (LI) zoning district and approval of a SUP was not required The tract to the south was zoned Agriculture (A). J. The Future Land Use designation for the site is Regional Mixed Use Center. 6 The site is not platted. However, a minor plat (MP13 -0008) is currently under review by the Development Review Committee. 7. The site is Surrounded by the Regional Center Commercial Downtown (RCC -D) zoning district and is zoned as such. Surrounding uses include commercial uses, undeveloped land, and manlufactured housing developments. 8. Based on surrounding uses, no buffer is required. However, the applicant pro poses a 10- f )ot perimeter security wall. 9. There are no Environutentally Sensitive Areas (ESA) on site. 10. Pockrus Page Road is classified as an unimproved perimeter street. Because the traffic generated is one vehicle trip per week, the proportionality assessment does not require construction of pavement and sidewalks. 11. The applicant proposes two drive approaches along Pockrus Page Road 12. Water is available from the existing 8 -inch main that currently runs through the site. The 8 -inch main wi11 be relocated by the applicant There is also an existing 6 -inch main along Pockrus Page Road 13. Sewer is available via the existing 8 -inch gravity main that currently goes through the site and will be relocated by the applicant. S'eij)ei- is also available from an existing fl- inch gravity main along Pockrus Page Road Development Review Committee The Development Review Committee finds that the request IS CONSISTENT with the criteria for approval in Subchapter 35.6.4 of the Denton Development Code, IS CONSISTENT with the general character of the area and IS CONSISTENT with the Denton Plan. The Development Review Committee (DRC) recommends APPROVAL of S13 -0002, subject to the following conditions: A perimeter masonry security wall shall be constricted with a minimum height of ten (10) feet. See Exhibit 7 for the location of the proposed security wall (highlighted in green) and Exhibit 8 for examples of perimeter walls; and 2. A minimum of 29% tree canopy cover is required. GENERAL NOTES -TOTE: Approval of this request shall riot constitute a inaiver or variance from arty applicable development requirement unless specifically rioted irz the conditions of approval arid consistent 11rith the Derztorz Development Code. -TOTE: All irritterz conmrerzts made irz the application arzd subsequerztsubmissiorzs (?f'irzfornzatiorz made during the application revieii, process, irizich are orz file i0th the 00) ofDerztorz, shall be considered to be birzdirzg upon the applicant, provided such comments are riot at variance frith the Derztorz Plarz, Derztorz Development Code or other development regulations irz eff "ect at the time of development. Surrounding Zoning Designations and Current Land Use Activity: Northwest: North: Northeast: Regional Center Commercial Regional Center Commercial Regional Center Commercial Downtown (RCC -D) Downtown (RCC -D) Downtown (RCC -D) (Commercial/Undeveloped) (Undeveloped/Commercial) (Commercial/Undeveloped) West: East: Regional Center Commercial Regional Center Commercial Downtown (RCC -D) Downtown (RCC -D) (Commercial/Undeveloped) I (DCTA Rail Line, Commercial) Southwest: South: Southeast: Regional Center Commercial Regional Center Commercial Regional Center Residential 1 (RCR -1) Neighborhood (RCC -N) Downtown (RCC -D) (Manufactured Housing Development) (Commercial) (Commercial) Source: City ofDenton Geographical brlbi- mation System and site visit by City staff Summary of Surrounding Zoning Designations and Current Land Use Activity: The area within 1/4 mile radius of the site is comprised of approximately 165 acres. Uses within a 1/4 mile radius of the site include agricultural uses, single family subdivisions, commercial uses, institutional uses, industrial uses and undeveloped land. Specifically, within a 1/4 mile radius, there are approximately 3.68 acres of land considered agricultural in nature; 90 acres of commercial uses; 3.72 acres of institutional uses; 1.97 acres are considered infrastructure; 23 acres are developed with residential uses; 6.2 acres are considered transportation and 12 acres remain undeveloped. Comprehensive Plan: The underlying future land use designation for the site is Regional Mixed Use Activity Center. For a regional activity center, the focus area contains the shopping, services, recreation, employment and institutional facilities supported by and serving an entire region. A regional activity center could include a regional shopping mall, a number of major employers, restaurant and entertainment facilities, a large high school or community college, and high- density housing. A regional activity center is considerably larger and more diverse in its land uses than any other activity center. It includes vertically integrated uses where different uses may occur on each floor of the building. Nearest Fire and EMS Station Name of Station I Approximate Distance From Fire /EMS I Fire Station # 6 (3232 Teasley Lane) 4.8 miles f ';otrree: 00) of Denton ( ;LS, Fire. Departnretit, alid E_11S Water and Wastewater Demand and Capacity: A. Estimated Demand: Subject Property Estimated Im pact Analysis 5.4 acres Proposed Demand Adequate to Serve (Yes or No) Permitted Density N/A N/A Potable Water Consumption at 0 (domestic) Yes peak hour (GPD) Wastewater Generation at peak 0 (domestic) Yes hour (GPD) B. Available Capacity: N/A C. CIP Planned Improvements: N/A Roadways /Transportation Network: A. Estimated Demand: Subject Property Estimated Im pact Analysis Adequate to Serve (Yes 5.4 acres f Proposed Demand or No Permitted Density N/A Yes Average Annual Daily Trips (AADT) 1 Yes PM Peak Hour Trips 1 Yes B. Available Capacity: Pockris Page Road is classified as a Main Street Collector, and requires 70 feet of right -of -way; 35 feet from the centerline of the street to the property line. C. Roadway Conditions: Pockris Page Road is classified as an unimproved perimeter street per Subchapter 35.20.2.L.3.A of the Denton Development Code and as such requires constriction of 25 -feet wide concrete pavement, 8 -foot sidewalks, curb and gutter, and required drainage improvements. However, because the traffic generated is only one vehicle trip per week, the proportionality assessment does not require constriction of the pavement and sidewalk. D. CIP Planned Improvements: None Environmental Conditions: There are no environmentally sensitive areas (ESA) on site. Exhibit 2 Aerial Map Exhibit 3 Zoning Map Exhibit 4 Future Land Use Map Exhibit 5 Notification Map & Responses SITE 500 ft Notification Boundary 200 ft Notification Boundary Legend DME Pockrus Pagie Substation , N C3 SITE w _J200 Ft Boundary S 1 3�-0002 L 1*1 DI NTO N [= "00 Ft Boundary S Exhibit 6 Applicant Letter of Intent Denton Municipal Electric Pockrus Substation Expansion Specific Use Permit Narrative Statement April 26, 2013 General Comments ....... ........ ........ ...... Denton, Municipal Electric, in its 201,3-2017 Capital Improvement Plan, has identified iibsCation and transmission line projects that are required to support growth and to maintain continued reliability. Substations are nodes on transmission systems where transmission lines are interconwcWl where voltage is stopped down to the level required for distribution to customers, an . d where dis utiont der circuit breakers are located, Substations are essential components of power system .... &.4.6.'.."Vithout the transformers, switches, circuit breakers, busses, and the, protection and coo"tRystcrns that are installed ,P ----- . ........ ... in substations, power could not be provided to customers. ......... . ..... --- ............ ......... ......... From a technical standpoint, there am three 'major factors that mus.i:::b;&:-.-,ftsidei6d in selection of a substation site. They are access, availability of transmission resourcesi:.iand proxinfity to distribution lines that could be served. Access is, required that can support the weight of 6 J cs that'deliver the transformers and other equipment to the site. The roadway and entrance to ft--S't must ust be all-weather so that the ...... ....... : '.. station can be accessed regardless of conditions by any Ot of- vehicle at any time. Without a transmission source, them can be no substation, Transmis.sion is:.J.h0-mad delivery, system that gets power to the site. If transmission is not available on the to the site. Similarly for distribution, the point of having a substation is V.. provide power to distribution lines that can deliver electricity to customers. If such lines are not available near a kfti� construction is required to interconnect .......... ...... to where ever they are. Construction of access f6ifti ft..transtaitsion lines, and distribution lines clearly affect cost and can have a significant impact on surround land use. Project Description/Summary ..... . ............. The purpose of this project is to expand the :.N.Arus Substation, an existing Denton Municipal Electric (DME) substation facility. The existing-substatiom is on a 5.4 acre tract of unplatted land adjacent to Pockms Page Road in far southeast-Dentm, This project is necessary to provide major electrical infrastructure improvements for tho:Jjimsmi"'AOn system and to reconfigure the station to best meet the needs of this growing portion The electrical loads served by this substation are manufacturing, a wastewater a hospital, a medical complex, and residential areas. Expanding the Pockrus Substation has been put of the DNM Master Plan for a number of years. The proposed substatiop.pxpa . miqn is to construct a 138kV transmission section that will include: steel structures, up to fOurte JJ&V'&=uit breakers, relocation of two existing transformers, and the addition d� ............... of one control enmuire (appfbxift�ely 60' long x 16' wide x 14' height). The expansion is being done to configure the stationla provide transmission line terminals for six transmission lines and place all three of the existirik tg forme indioendent bus sections. Visually the new substation, will be similar to other... substations:-arouna Denton except that there will be a ;�� number of transmission line ... .. .. .. .. .. ... term ern A 10-foot high, COUCrOtO SCIOVoing/Security wall will be constructed around the soutborly and wog..afly sides of the site, The remaining sides will be enclosed with a chain link fcnce, site tm.�Jsfte History ................. The Poclaxis: substation site is a 5.4 -acrd tract on Pockzus Page Road just east, of 1,H-35E and adjacent to the DCTA rail line. The property and all adjacent properties are currently zoned RCC-D which is Regional Center Commercial Downtown. Basic utility facilities such as substations are allowed uses in this zoning category with a Specific Use Permit, Though land uses permitted in the RCC-D zoning category include both commercial and multi- family functions, the surrounding land uses would appear to makethe likelihood of any residential uses adjacent to the site very remote. The substation will be enc'los'ed and secured from public access by a 10-foot decorative precast concrete security wall on the south and west sides with a chain link fence on the north and east sides, The concrete wall will be colored to simulate roes construction. A site plan that shows the planned arrangement of the site is part of this application.. Surrounding Property Uses The property on every side of the site is currently zoned td' -1. 'The property is boundwon tom. erly side by the DC TA rail lure. The property across the rail line from the site contains a commercial use The property ac -rums Pocknis Page Road, to the south,, has two " . Oneii the Allied Equipment Rental , and the rather is a storage yard for'the lgaplore `lI A lti+ Center fronts on the IH-35E frontage road. The properties to the north and west of the site: unoccupied at this brie. 'there are residential properties further east of the site„ across the D VA rail iii hospital and scar dealership are other nearby land uses. The Future land Use for aall prpfr: ps- within it least 500 feet is Regional Mixed Use Center. l rrfsdug Site Conditions The northern portion of the site houses the existing Piv Obstaii0n, which includes *re transformers„ one control building, and two outdoor, distributi structures. The remainder of the site is vacant. The existing topography of the site slopes g6dy frdrrr so4th to north. '.There is an existing drainage channel along, the railroad that conveys soxta wat"- , tho ra .'There is also a very slight'.low area just north of the site that conveys stomp wale' to the =6'-This drainageway is not unproved and is net well defined re rare existing trees on the sits,: mostly al' ` ' the east edge of the site adjacent to the railroad right-of-way, and at the soothe comer of tie:- lte Storm water on and across the site is cur Ludy primarily overland flow, Virtually lly no stormwater flows onto the site, There is of course no existing vehiculariiffic :on ihisite itself. Adjacent circulation consists of traffic on Pockrus Page Road, which is curreotly a tvfr lsne antral roadway section. 'There are no sidewalks on either street adjacent to the site 'Th Dentr frlobility Plan designates Pockrrus Page Road as a Main Strad Collector, which is an undivided- r with a, Ttl' right-of-way width. As air undeveloped property, ; rpre are currently no designated recreational or preservation areas, on the site. An " potable water libel, an 8" sewer line, and an overhead electric transmission line all traverse the site, all tuning pan Retand ardl cent to each, other in a northwesterly- southeasterly direction across the westerly side. of the aite.: In addition, there is a ,gnus pipeline that runs adjacent to and parallel with the west property here Of the site. 171 E purposes tar relocate the water line out of the site, both to avoid confli tir iwith the suhiibwtion and to prove any possible maintenance issues out of the secure area. The sewer:line would awlso'be relocated;, but there is less concern about failure for the sewer lane, and the s,of the e " iol; sewer dine am too flat to relocate entirely off of the property. Propead Site.Cunditions The proposed lanai use will be air electrical substation which is allowed in the p. -D zoning category with a Spocific, Use P' `.t. Proposed topography, will generally match the natural, lay of the land.. The substation will be graded gently 11.0m, South to north. A permeable rock surface will be installed over the entire substation inside the concrete screening/security wall, with the exception, of a, concrete access road. Runoff will filter through the rock and follow the subgrade to discharge in a shallow sheet flow to the north. Consequently, there will be no measureable increase in runoff due to construction of the facility. Storm water detention i s not anti cip ated. .............. Areas outside the secured area will be vegetated with native grasses and existing treed _::ThhV4ite- is extremely small for the intended use, and as a result, the vast majority of the site willbe -endlosed within the screening/security wall.......... Access to the facility will be from Pockrus Page Road. The substation will be uniwiffiaMelyt during the infrequent visits which are required for operation of equipment, for inspection or testilig, and when 1181; g maintenance is required. Routine traffic in and out of the site will generally:consistof-one ser-vice vehicle per week. . ........ ... Substations are not public facilities but are restricted areas where significant-measures are taken to exclude unauthorized personnel. Access to the secured area (inside thaubs.ution security fence) will be restricted to authorized or escorted personnel only. Pedestrian traffic vito and �r&n the property outside the perimeter wall will be intentionally discouraged because of safety bpd security concerns. When Pockrus Page is widened to a Collector section, it is expected-Ahat -sidewalks will be constructe& However, no sidewalks will be constructed to the substation sikitklf No, parking spaces are designated on the site, as service vehicles can park anywhere on the site. ............ ......... ...... ---------- ----------- ..................... .......... 111ropoad MMption Measures .......... The proposed substation, by its very nature, is very compatible with many, adjacent prop" uses in a number of ways. Because the site is unmanned and infrei*ntly visited, there will be no traffic or dust related nuisances. The substation does ncrtaattike noise, and does not generate odors or fumes. Lighting on the site will be minimal, and will meet: �.o.r.:i;.xteed the requirements of RCC-D zoning category. Where site conditions permit there will .be- - 1"&Oving outside the limits of the substation. However, Section 35.13.8, of the Denton Deveh?p Code (MQ indicates that no landscape buffers are required (see Table 35-13.1). The concrete Security .will be a visual buffer as well where it is placed, and will be constructed to simulate a rock wall". Sonto..: ft-isting trees in the southeast comer of the site will have to be removed to accommodate the proposed "ansion; however enough trees can be preserved to meet the 20% Tree Canopy requiremenu in Section 35,13,73, of the TAD C. Consistency with the Dente Code All electric utilities mj*:AFUF:and construct power, systems that provide the performance that is specified in fed&al::- and -'itaus .:-:Aiindards (FERC, NERC, ERCOT, TRE). State law requires that municipally pwn4q�-ihtics construct, facilities that at least observe the minimum clearances and practices ....... . ......... . ...... stated in the Natignal E*triW Safety Code. Standards for Substation security fencing do not allow any climbing.aids ei Ju the We offence construction or in any object near the fence.. Clearly trees could be a climbbig aid abdWid.they be in immediate proximity to the fence or by being allowed to have limbs that t.Lte'close tut ,or oirirlianging a fence. To avoid hture problems, DME's position is to require a minimum clear U0a of 20' outside a substation fence to the edge of any mature tree canopy, existing or ...... ...... PIanftd,::-.To pr6t6tt the transmission lines, a 75' 'wide mement is the common standard, and this easementii.fi.O.A.4 -kept clear of trees and tree canopy. The area within the transmission easements, within the substation itself, and within the 20' clear buffer around the substation must all be kept clear of trees. The landscape plan submitted as part ofthis SUP package is intended to honor those limitations and still provide the tree canopy requir,edby the DD C. The landscape plan submitted with this application is based on, treating, the entire, secured area of the site as a transmission, easement, along with those areas outside, the secured site that fill within the transmission easements. Tree preservation standards will not apply to substation sites since station sites are part ofthe DM E CIP which serves as a utility, master plan (see DDC Section 35.1 3,.7,A,.2.c.v.)- Mitigation for tree removal is not required. However, compliance with the Landscape Ordinance (Chapter 13, of the DDQ is required. As smsult, fte canopy, and landscape area witurount requirements will be meta ..... ........ . Spedfic Use Permit Conditions The Denton Development Code outlines specific approval criteria for a Specific Use Permill 'tajwnfarms the Specific Use Pennit Chceklist, these criteria are addressed below; . .. .... A That she use would be in con )kirmance'WA di srand4n* *11hinthe zoning districe in which the use is proposed to be lorated, and in conformance wish the Denton Plan, andfiedeo, sfwo-oVfacai' law,, This, proposed substation, site is zoned. RC C-D. S ince the ni ininium laft64 area in chapter, 5 of the Denton Development Code is based on pervious area, , which itiol- ' u ' des ft lidmtsble rock surface inside the station, 'both the, maximum lot coverage and minirqunt'�'�'.'Iandsca .. ped area are greatly exceeded, In, this case, the misimurn landscaped area, is 10% s,40,tbis OtO vjdes a total, of more than 90%, pervious cover. la addition, the landscape plan will meet the toquiremcat*of,,CbApi6tA,3 of the DD C. Minimum landscaped area (generally interpreted in Chapter 13 as live p,)AhW areas) will meet or exceed the 10% required, and the tree canopy (a combination l,of: e,�x,isti#g '"d. okitted trees) will meet, or exceed the 20% required The landscape area 13 are based only on those areas outside the transmission owments and tb 'Recurcd It, #4onsitc. R A specific use permit shall be issued pply if all of the fiiq� conditions have been m et- 1. That the specific use will be corn 04ibk, with and nblinjurious to the use, and enjoym ent of other property norsignorandy di Ly,h��i'ii imp airpropenly values within the immediate vicinity,, Because the proposed substation.Aitewill:not generate noise, odors, light, or traffic, anal will be screened from view to the "Iek osaible, the substation will not in any way diminish or limit the use and enjoyment of adj acs t: prop eAks, especially in light: of the fact that the adjacent land uses are all In sobstation will be a desirable neighbor because of the minimal impact it will have on' ding properties., Z That the establishm art of the specific use will not impede, the normal and orderly development andimprov em, ent of surrOunding vacant property; The existing vs* :Of A ' V, pm.PeTty is as a substation, so the expansion does not change the impact On adjac6uforoperues: Ths'substation was actually originally built prior, to 1995, and it predates mostiff theiyeiiby develooid . ent 3. That ade4owe udlitles, access roadr, drainage and other necessary supporting facilities have bleeff- or w W beprovided; The pr .,fed substation imposes virtually no impact on public: infrastructure, as it does not use domestk'water or wastewater,, there is virtually no traffic to the site and it generates virtually no No supporting lacilities are needed for this site other than the planned future electric , transmission line, The easement is already in place for the proposed transmission line. 4 The design, location and 'arrangemens of all driveways andparking spaces, provides for she s* and convenient movement of 'vehicular and pedestrian traffic without advenely qffechng the genend public or adjacent developm ents; N 101 Access to the substation is intentionally restricted to authorized personnel, There will be no public vehicular or pedestrian traffic on the site, and no parking spaces within the facility, since the site is only visited for maintenance or monitoring. The access, drives, from the public street will be designed toaccommodste, the large trucks that could be necessary, for future equipment installation of replacement 5, That adequate nuisance pre vention measures have been or will be taken to prevent ,#r.rontrol ojfensive odor, fumes, durt, noise, and vibration; The facilities on the substation site will not generate odors, fumes, dust, noise or v *ration, sa -:no prevention measures are necessary. 6, That directional lighting w U1 6e prov idedso, our not to disturb or adv vrsval properties, and, The substation site will be protected, by, a I ' security, fence on at south side, adjacent to Fockrus Page Road and, the westerly side, and except will not be visited by service personnel at night. Acwrdingly, only minimal, lighting is--provided on the site. These lights will not be visible from outside the secure area.-, An'y -other , lighting that may be needed will be directional lighting aimed at the interior of thicsite,atid'-Miill be needed only for emergencies. T. That there is sufficient land�caping and screening tmn any and compatibilh with adjacent proper ry. The landscaping to be provided will meet on rd ft ents of the DDC and, coupled with, the security fence, will provide a pfcas*g view ftixn atnent properties. That adequate acity of infiustructure vam and will be provided ',to and thraugh the subject propertY As indicated above, no additional infrastructure is nil Odbd to support the proposed substation,, The existing water and sewer lines that traverse the site will be relocated outside the proposed secure area, The plat shows the right-of-way to for, the eventual widening of'Pockms Page adjacent to the substation Ore. That the Sperid Use is compatibl fth 4*d will not have an adverse impact on the surrounding area. The proposed activity is expansiba, of isting electric substation will notgencrate objectionable noise, odors, light, or traffic. It Wk'lkdfii�'rease runoff significantly. The proposed expansion will not materially change any it the existing substation currently has on the neighborhood. There will simply be no adversel-inipact onthe surrounding area,, . ..... .... Exhibit 7 Landscape Plan w w 1Z o vq If I "i" W ,J Jul, I Ao "i" W ,J Jul, I Exhibit 8 Security Wall Examples Exhibit 9 DME CIP Project Map A Vlllp 0 J611 qggp iii ......... 7 N, V-1 6 n,j � \tl. —A Vlllp 0 J611 qggp iii ......... 7 N, V-1 6 � \tl. —A A"O Exhibit 10 Site Photos Photos taken on the southern tract where the expansion is proposed along Pockrus Page Road looking north. Southwest corner of the site looking towards existing trees. Southwest corner of the site looking north. Looking east at the DCTA rail line. Northeast corner of the site looking at rear of existing substation. Exhibit 11 September 11, 2013, Planning and Zoning Commission Meeting Minutes PUBLIC-1 ILARINGrS, A. Ljold_a_public hearing and eouSideLgjgkjn_g as I anterichrielit to the C011tral Busilless, District Botuldwies to cou-c,,q)oild vvith the Downtown linplernerifi,ifion Plan Boundaries, (I)CA13-0002, Brian Lockley) Commissioner Frank Conner motioned, Comaussioner Devin raylor seconded t'an postpone this item to the September- 25, 2013 mecting. Motion approved (6-0). 13. all aniondnient to Section 35.13.7.11 2 of" the Denton Develonment Code (11,)DC) nertaining to landscape maintenance standards. (DC CAl 2-01002, Nona Elaine Muncie) Muncie stated the PUrPOSC Of 111is, request is to rcquiw property rmnor-'s to work on their land maintenance inore adequately. Muncie stated the curi-ent lariguage in the Denton Development Code (DDC) suitcs, that all landscapi rig and trees shal I be installed and maintained in accordance vvith the requirements of the Site Design Criteria Manual. Munoie stated staff' is recommending the mandatory maintenance language be inserted into the 1)DC as well. Muncie stated there is a chart in the staff backup that shows the cumni DDC, current Site l3esign Criteria Manual lallgUage and the propowd arnendinents to Subehapter 35.13.7,13.2 of' the DDC- Stall' recommends, that Section 35.13.7.13.2. ofthe DDC be aniended to include landscape maintenance ream rements outlined in the Site Criteria MaIlUal and a consequerwe for non-compliance,. Schaake Opened the Public Hearing, there .vas no one to speak oil this item, and Schaahe closed tile PUbliC Hearing, Commissioner Frarik Conner motioned, Conitnissioner Devin Taylor seconded to approve this reltiest- Motion approved (6-0)- C. a DME, Substation. to an adjacent lot. The approxiniateIN,, 5 acre propefty is located on tile north side ol'Pockrus, llagc Road and directly west ol' file existing DCTA rail firie. '111c site is locatod wAjthin as Rclxaonal Center Commercial Downtown IRCC-DI-zoning dktrict—IS-13-0002, QN41," Pockrus llap-e Substation. Johnna Matthews) LoAlcy stated Bell is presenting; this item in Place of Nlatthe,,vs- Bell slated this request is to allow an expansion of as "Btisic Utilily;- a, Denton Municipal E.Aectrie (D1\41,,) electrical substation, to air adjacent lot. 'll,ie su1ject site is approxiniately live (5) acres on the norill side of POCkI•US Page Road and west of 1-35. 133r 11 provided the site plan that included the exvs,,,fing substation, the proposed expansion and the Proposed ten (10) 1`60t PeFiIII00- SCCUrity Wall. StAT sent 10 Public hearing notices to property owners within 200 feet of the subject site and 14 courtesy notices to property oNvIlens, m1thin 500 feel 01' the 8UbjCCt site, Al this time stall' has received one (1) response in regards to this reclucst, the property owner did not indicate whether she was in fivvor or opposed to this request. Ili,, request only included questions Froni the properly owner. 2 Bell provided a photo cal` the proposed perimeter security wall; Schaake questioned if the wall 3 would be the same as the perimeter Nvall, in the Ray/or Ranch Development, Bell referred to 4 Sears to anMVel- that (JUCStiOrl. 5 ChUek Sears, Denton Municipal F'Iee(rie. Sears, stated the wall all Rayzor Ranch is it masonry rock wall, the design reqUil-OTTICIlt."' 1'o:l- this suject site are concrete and will be sirnflar ill appearance. Schaake questioned ifthe perimeter wall would be around the entire perimeter or the site, Sears stated that is correct. Taylor questioned the existing trees an the property-, Sears stated there is approxanately 35-40910 tree coverage on the outside of the Fence. so the property exceeds the required 291N) tree canopy. Bentley questioned the arnount if the 291"% would he doable if no trees could be placed inside the perimeter fiance due to safety reasons- Sears stated the trees would have to be apprommately 20 Feet outside the fence. Vockley inl'onned Bentley that stall' and the applicant have met with DINME ill order U.) assure this 29'% could be met. Schaake stated she trusts staft's calculations. Schitake opened the Public I learin g. Betty Robertson, 2275 Leatlierwood, Denton, Texas Robertson stated the stone perimeter wall doesn't look appealing-. Robertson questioned sesame landscaping to be placed oil the outside of the perimeter wall to acid some landscape buffering. Robertson questioned the noise level that would rise after this substation is updated- 'lliere was no one else to speak oil this item; Schaakc closed the Public Hearing. Bell stated the niasonry wall is similar to what is around most ofthe city and substations around the city- As Far as the landscaping it was not in the staff rccomniendation- Sear stated the substation has occupied this site For several years. 'I'llerc are three transforniers on [lie site and the only time they make noises is when the Iransfortners are opened. Sears stated that occurs, over the course ot'a. second- 1,A)cklc), stated a landscape buffer xould not serve a pLlrj,)O.W With low hue shrubs oil a 10 foot masonry %vall. 111OSe Shrubs IVOLdd also attract small animals to the site would could be hazardous to the transformers. Commissioner Brian Bentley motioned, Commissioner "llioni Reece seconded to approve this i(em, based oil stalFs conditions. Motion approved (6-0), 4. IUTTIR,F� AGENDA ITEMS: Under Section 551.0,42 of' the Texas Open NjeetijiL% Act, o" 2L .Lime, paaa4 %hc w +a(h staeu'4c factual inlbri-mation or recitation of L)olio sal to L yv� or accept a prioL)o, )Iaco the matter on the WZY0,11da, for an upcotning njectin ?�. 35 36 77here were no Future Agenda Items discussed. Schaake atliounied the meeting at 7:20 p.m. Exhibit 12 Ordinance s:AcprT KIT I lukalmol Yw� 3-0002 ordmaim duc ORDINANCE NO. AN ORDINANCE OF —HIECFTY OFIA"NTON, TEXAS, APPROVINGA SPI'(11"IC USE PERMIT TO ALL.OW A BASIC UTILITY; A DMF`rI,F1'C1`RIC SUBS'l., ATION, ON APPROXIMATF.1,Y 5.44 ACRE'S OF LAND WITHIN A Rl"GIONAL CENTER COMMERCIAL DOWNTOWN (RCC-D) ZONING, DISTIUCT CLASSIFI(.'Xrl()N AND USF" DESIGNATION, LOCATED ON T] IE' NORTH SIDE' 0F130(`KRUS PA(IE ROAD, EAST OF' 1-35, AND DIRI;CFLY WEs-r Oil, THE DCTA RAIL LINE, WITHIN THE CITY OFDF,`NT0N, DENTON C0LJNTY,TFXAS; PROVIDING F()R A PENALTY IN MAXIMUM AMOUN"I' OF' S2,000-00 FOR VIOLATIONS TI IEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECHVE. DA ff,- (S13-0002) W14F.RFAS,'Yeague, Nall and Perkins, has applied for as Specific Use Permit to allow a basic utility; an clectric substation on approximately 5.44 acres of land within a Regional Center Commercial I)owntowli (R(,,,C-I),) zoning classification and use designtqion legally described in F"xhibit "A", amiched hereto and incorporated herein by rcfcrence (hercinafler, the '*Property")„ and WHERFAS, on September 11, 2013, the Planning and Zoning Commission concluded a public hearing as required by law, and recommended approval of' the requested Specific Usc Permit—subJeck to conditions; and WHEREAS, on Oember 15, 2013, the City Council held a pubtic hearing as required by law and finds that the rCLILiest is corlsiqent with the Denton Plan and the Denton Developmeni Code; NOW THE' COUNCIL 01—H IE, CITY OF DENTON 11FRF"BY ORDAINS: SEX "TION I Tlic findings and recitations contained in the preamble of this ordinance are incorporated lict-cin by reference and found to be true. SFC—ION 2, The Specific Use Perrint (SUP) to allow a basic utility on the Property is hereby approved, sub�jecl to the following conditions: I. A per-inicler masonry security wall sbMf be corlstrucicd With I 111ininILIM height of ten (10) feet, See F,xhibit 7 fiat` the location of' the proposed security wall (highlighted in grcen)and Exhibit 9 for examples oflicrinicter walls; and 2. A mininium of 29% tree canopy cover is required. IS,11]t 'CTION 3. If any provision of this ordinance or flic application thcreofto any " Person or c ircu 111sul lice is held invalid by any COUrt, SUCh invalidity shall not afkct the validity of the provisions or apphcations, and to this end the provisions oil'this ordinance are severable. �,Alegakpuf I is I MOO oulmom, dm SEC, FIQN L � Any person violating any provision ofthis Ordinance sh'afl, UP)011 conviction, be Fined a sum not exceeding $2,000.00, Each day that to provision of fl,iis ordinance is violated shall constitute a separate and clislinct offense. SECTION 5- This ordinance shall become effective fourteen (14) days from t1w date of its passage, and the City Secretan, is hereby dircmd to cause the caption of this ordinance to be publislicd twice in the Demon Rccord-Chronic1c, as dady newspaper published in the City of'Denton, Texas., within ten (10) days of the (late of its passage. PASSFD AND APPROVED this the . ....... .. . day of _ . .. . .... . ................... 1111111111111.---• 2013. MARK A. BURROUGHS, MAYOR ATTFST� JHNNIFER WALTERS, CITY SECRETARY BY: APPROVED AS "FO LEIGAL FOM ANITA BI JR(JESS, CITY NrTORNE Y BY: . . . ................ . . . . . .. s if in Nnces° 11V13,0002 ordowme,doc Exhibit A Legal Description Denton Mkirsidind Electric Fockros Substard on Rettig AM that rvri a in lot, Ir act Or Parcel of land sku a ted in the Giderin Walker 5ur"'Y AbstIr a it Nu "I ber 1330 City of Donlan, Deo I ton County, ro.As, and be Ing a I I fl,oe eettmn nacts of land dII in dued to the Crty of Denlon, reccI in Volume 1814, page- 61,9 of t1* Creed fieveadi, of Denton r."cuilty, To-as, Arid recorded under Instrannisert NiAmbeo 205 -126452 aertj 2000-W)0,tlf$88.f ahe heal PIropety Il or ds M DeolonCounly, Texas„ au d twong ion, e par6cularly BL6 INN Mt, At a PK Nai I set in asphalt oat ltry southwest cancer of smd City of I)Ir,nton tract And beirgin the occulmed Pocknus Page Ha id, a public mad ... y; I HEN(F, Nerds 05 cliI 21, nlinvles so Wconds oast 51, Passing. V, irich iron ind! Wiffit at C a pstampvtl "AV found at a distarrw of 213.95 Feet aid ,ontin.mg for i total distance Of 341,52 fimt to a % inch iow, noel whir CA ps. tampeA "MR" found Vr I the 50taI line cad that rem torn nact of I dild de"'ibed in deed to Dervion IMayfiillll Road frvwstor5, L,P., qscoI jr) Voiurnp 5409, Page 26SI2 0 the Real Propeny OF Denton co% ty, Teruts; THME Pjadh %0 dl,,,3gree.s OIS minures S9 seconds Lim, with tile ninon east fine 0l said L�e.nton Mayhill goad lin—tons vaci,a tl¢soaacv of 32S.12 feu .-k to a Z Inch Iran rod found trilln, 5—th-est line of that certain tract ofland described in deed iothe City of Dmikon, recoMed nndep Cou"Ity Cierk's liicy NUmber 113-ROOS8485 of tlur Real Propefly Records of Denton CrI Texas saved point also her ing.1 til»s begintimiI a novnia%eint curve laths, left hay6ng@ radius of 2fJ34-79i feet; THENCE continuing with said cumean arc leeMitof 380,54 feet, having delta aniFleerf(I dr.,iyer,s 28 minutes cud seconds, whose (hurdbeafs Slikoh, aSclegrees 48 elirutes 03 seconds Fast, a dManceof :390 27 feet to a % inch iwon rod found fortorfief; 7FJFW^ f Snail, 39 deg,"s 38 rinnutes49-mind, Fast, crmtI,nqmrg.th the northeaM tine .f ,Aid City of Demon Iret, a clistance of 351.3t Fort to A PK Nail set For vomeI, In dnejN:x,opapd Pockr,A Page Mad; THENCr North tldegroso, 35 olmilles 37seconits West, confinuingwrIlh Ih,e OUJAPied ftfkrUs Page It id, a distance of 728,77 feet to this POINT OF Bf.GINNING, ardiorluNint,if; 5,441 acres land, train or less s_lltip row w3afa min Ida. sr r WI arnucy I Y6s tl:3.0 02 ordilI al sCe'.doc Exhibit B Landscape Plan M i I I a a a a fl r a t i M 4 F ' F y n a G w 1 M *ti Pudblhc V ieai -ihr AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Planning and Development ACM: John Cabrales, Jr. n SUBJECT Hold a public hearing and consider adopting an ordinance of the City of Denton, Texas, amending Subchapter 35.13.7.B.2 of the Denton Development Code by revising the requirements of landscape maintenance standards; and establishing an effective date (DCA12- 0004). The Planning and Zoning Commission recommends approval (6 -0). BACKGROUND The purpose of this amendment is to clarify the City's authority to require property owners to maintain the landscape plantings that were approved with the site plan or building permit. Current language in the Denton Development Code (DDC) states that all landscaping and trees shall be installed and maintained in accordance with the requirements of the Site Design Criteria Manual. Staff is recommending the maintenance language be inserted into the DDC. Staff is also recommending a minor text amendment for clarification of consequences for non - compliance. Failure to replace any approved or required landscaping will be a violation of the DDC. The enforcement and penalty provisions in Subsection 35.1.10.4 will apply to landscape maintenance violations. This staff - initiated code amendment aligns with our Strategic Plan objectives for Planning and Development staff to implement the provisions of the Denton Property Maintenance Code and the Denton Development Code. The goal is to improve the appearance of existing landscape areas, to result in positive and visible improvements for properties throughout the City of Denton. PRIOR ACTION/REVIEW September 11, 2013 Planning and Zoning Commission OPTIONS 1. Recommend approval as submitted. 2. Recommend approval with conditions. 3. Recommend denial. 4. Postpone consideration. 5. Table item. Agenda Information Sheet October 15, 2013 Page 2 RECOMMENDATION The Planning and Zoning Commission recommends APPROVAL of the Denton Development Code amendment (6 -0). EXHIBIT 1. Exhibit 1 2. Exhibit 2 3. September 11, 2013, Planning and Zoning Commission Meeting Minutes 4. Draft Ordinance Respectfully submitted: 4,rr , Brian Locldey, AICP, CPM Planning and Development, Director Prepared by: Nof�E�rt�h� Nona Elaine Muncie Landscape Administrator EXHIBIT 1 Current Denton Development Code (This section within the Denton Development Code references the Site Design Criteria Manual.) SECTION 35.13.7.b.2 B. Landscape and Tree Canopy Requirements. 2. All landscaping and trees shall be installed and maintained in accordance with the requirements of the Site Design Criteria Manual. Current Site Design Criteria Manual Landscape Maintenance Language (This is the information from the Site Design Criteria Manual that we are proposing to insert into the Denton Development Code.) 1. Landscaping installed as part of the requirements of the landscape standards must be maintained in a healthy, growing condition at all times. 2. The property owner is responsible for regular weeding, mowing of grass, irrigating, fertilizing, pruning, litter removal, and other maintenance as needed for all plantings. 3. Any tree that is planted as required or preserved for canopy coverage that dies must be removed immediately and replaced with an approved tree in the appropriate planting season. EXHIBIT 2 Proposed Denton Development Code Amendment SECTION 35.13.7.b.2 B. Landscape and Tree Canopy Requirements. 1. Landscaping installed as part of the requirements of the landscape standards must be maintained in a healthy, growing condition at all times. 2. The property owner is responsible for regular weeding, mowing of grass, irrigating, fertilizing, pruning, litter removal, and other maintenance as needed for all plantings. 3. Any tree that is planted as required or preserved for canopy coverage that dies must be removed immediately and replaced with an approved tree in the appropriate planting season. 4. Failure to replace any approved or required landscaping is a violation of this Subchapter. Exhibit 3 September 11, 2013, Planning and Zoning Commission Meeting Minutes 14 Schaake called the Regular Meeting to order at 6:47 p.m. 3 23 24 Locldey stated Bell is presenting this item in place of Matthews. Bell stated this request is to 25 allow an expansion of a "Basic Utility;" a Denton Municipal Electric (DME) electrical 26 substation, to an adjacent lot. The subject site is approximately five (5) acres on the north side of 27 Pockrus Page Road and west of I -35. Bell provided the site plan that included the existing 28 substation, the proposed expansion and the proposed ten (10) foot perimeter security wall. Staff 29 sent 10 Public Hearing notices to property owners within 200 feet of the subject site and 14 30 courtesy notices to property owners within 500 feet of the subject site. At this time staff has 31 received one (1) response in regards to this request, the property owner did not indicate whether 32 she was in favor or opposed to this request. The request only included questions from the 33 property owner. H sAlegal\our docuinents\ordinances\ I Nandscape maintenwice amendment-ordinance.doc Exhibit 4 Draft Ordinance AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SUBCHAPTER 35.13.7.B.2. OF THE DENTON DEVELOPMENT CODE BY REVISING THE &EQUIREMENTS OF LANDSCAPE MAINTENANCE STANDARDS; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2002-040 the City Council of the City of Denton, Texas adopted the Denton Development Code (the "Development Code") and WHEREAS, this code amendment aligns with the Strategic Plan objectives to proactively enforce the provisions of the Denton Property Maintenance Code and the Denton Development Code thus resulting in positive and visible improvements for properties throughout the City of Denton. WHEREAS, on September 11, 2013, after providing notice and after conducting a public hearing as required by law, the Planning and Zoning Commission recommended approval of certain changes to Subchapter 35.13.7.B.2 of the Denton Development Code. WHEREAS, on October 15, 2013, after providing notice and after conducting a public hearing as required by law, the City Council finds that the subject changes to the Development Code are consistent with the Comprehensive Plan and are in the public interest; NOW, THEREFORE, I _11 100400 2 If LKAJ W: W-11MOU-91mill SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference as true. SECTION 2. Subchapter 35.13.7.B.2 is amended to reflect the changes outlined in Exhibit "A"; all provisions not changed herein to remain as written. SECTION 3. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. 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. s:\Icgal\our documenMordinances\1 3\1andsc ape m a intemuice amendment-ordinance.doc PASSED AND APPROVED this the day of 2013 ATTEST: JEUCIFEV.. W4,LTE.P.-S, CITY SECRET.4,.V.Y m w"W"I M-111=111=11,61.4ml mm kq, I I F.-,u -.111 .,Eqn OM I Wff..Iv N Eli m Iq I Wd BY: sAlegahour documetits\ordinances\13\landscape maintenance amendment-ordinance.doc Exhibit A A. Current Code Section 35.13.7.B.2 is deleted in its entirety: B. New Section 35.13.7.B.2 is added to read in its entirety as follows: 2. Landscape Installation and Maintenance. Landscaping installed as part of the requirements of the landscape standards must b% maintained in a healthy, growing condition at all times. b. The property owner is responsible for regular weeding, mowing of grass, irrigating, fertilizing, pruning, litter removal, and other maintenance as needed for all plantings. c. Any tree that is planted as required or preserved for canopy coverage that dies must be removed immediately and replaced with an approved tree in the appropriate planting season. d. Failure to replace any approved or required landscaping is a violation of this Subchapter. Pudblh(i U AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Planning and Development ACM: John Cabrales, Jr. n SUBJECT Hold a public hearing and consider adopting an ordinance of the City of Denton, Texas, providing for a zoning change from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRM[_J) zoning district and use classification; with an overlay on approximately 10. 112 acres of land. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive, in the City of Denton, Denton County, Texas; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability and an effective date (Z13- 0003). The Planning and Zoning Commission made a motion of approval, which motion failed to carry (2 -3). A supermajority vote is required by the City Council. BACKGROUND The applicant (Spring Brook Planning Group) is requesting to rezone approximately ten (10) acres from a Neighborhood Residential 2 (NR -2) zoning district to a Neighborhood Residential Mixed Use (NRMU) zoning district. According to the Denton Central Appraisal District records, the property is currently owned by Bishop Joseph Delaney. Denton Area Teacher's Credit Union ( DATCU) is proposing to purchase the subject property from the owner to facilitate constriction of their new corporate headquarters. DATCU proposes to constrict an initial 51,200 square foot, two -story office building, with two (2) possible additions in the future to include approximately 16,000 square feet each, in 12 to 15 years; for a total of an 83,200 square foot building. In conjunction with the zoning change request, the applicant has also submitted a Specific Use Permit (SUP) (S13 -0001) to allow an increase in the square footage allowed for an office use. Prior to a recent code amendment, "Professional Services /Offices" was a permitted use with the following limitation: L(17) =Uses are limited to no more than 25, 000 square feet of gross floor area per use, except grocery stores may be larger with approval of a SUP. On July 16, 2013 the City Council approved a code amendment to Limitation 17. The limitation was approved to read the following: L(17) =Uses that exceed twenty -five thousand (25, 000) square feet of gross floor area per use require approval of a SUP. Agenda Information Sheet October 15, 2013 Page 2 The applicant also submitted a variance (V131-0002) application for the proposed development to allow direct driveway access onto Teasley Lane. The variance was denied by the Planning and Zoning Commission on May 23, 2013. The property is currently developed with a 10,000 square foot, one -story church building and accessory strictures. The accessory strictures include eight portable buildings totaling approximately 9,620 square feet. Upon St. Mark Catholic Church vacating the site, all existing strictures will be demolished for constriction of the new DATCU corporate headquarters. The property is currently platted as Denton Catholic Addition, Block A, Lot IA. Prior to the city- wide rezoning in 2002, the property was dually zoned Agricultural District (A) and Single Family -16 (SF -16). Three (3) neighborhood meetings were held on the current site of St Mark's Catholic Church; Tuesday, March 19, 2013, Wednesday, May 23, 2013 and Tuesday, August 13, 2013. The minutes of the meetings are provided as Exhibits 8, 9 and 10 respectively. Staff sent 25 certified notices of the public hearing to property owners within two hundred (200) feet of the subject property and 83 courtesy notices to residents /property owners within five hundred (500) feet of the property. As of this writing, staff has received three (3) notices in favor of the request, one (1) notice which does not indicate a response, and seven (7) notices in opposition to the request. The 7 notices in opposition represent 32.95% of the total land area within 200 feet of the request. A super - majority vote (6 of 7) by City Council is required for approval of this request, as the land area opposed to the request is within 200 feet of the site and represents more than 20% of the land area. PRIOR ACTION May 8, 2013 Planning and Zoning Commission Meeting (V13 -0002) Denied (4/3) July 24, 2013 Planning and Zoning Commission Meeting (Z13 -0003) Postponed to a date certain of August 28, 2013 July 24, 2013 Planning and Zoning Commission meeting (S13 -0001) Postponed to a date certain of August 28, 2013 August 28, 2013 Planning and Zoning Commission meeting (Z13 -0003) Motion of approval, motion failed to carry (2 -3) application forwarded with unfavorable recommendation August 28, 2013 Planning and Zoning Commission meeting (S13 -0001) Recommendation of approval, subject to conditions (4 -1) Agenda Information Sheet October 15, 2013 Page 3 OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission made a motion of approval of Z13 -0003, with an overlay, which motion failed to carry (2 -3). Consequently, Planning and Zoning Commission recommends DENIAL. The Development Review Committee (DRC) recommends APPROVAL of Z13 -0003, subject to an overlay district to address the concerns of adjacent property owners. The NRMU zoning district shall be limited to the following uses: • Professional Office • Community Homes for the Disabled • Gas Wells FXUIRITC 1. Staff Analysis 2. Location /Aerial Map 3. Existing Zoning Map 4. Proposed Zoning Map 5. Future Land Use Map 6. Notification Map & Responses 7. Applicant's Letter of Intent and Attachments 8. March 19, 2013 Neighborhood Meeting Minutes 9. May 23, 2013 Neighborhood Meeting Minutes 10. August 13, 2013 Neighborhood Meeting Minutes I1. Site Photos 12. August 28, 2013 Planning and Zoning Commission Meeting Minutes 13. Ordinance Agenda Information Sheet October 15, 2013 Page 4 Respectfully submitted: ms.µ Brian Locldey, AICP, CPM Planning and Development, Director Prepared by: Johnna M. Matthews Senior Planner Exhibit I CITY OF DENTON DEVELOPMENT REVIEW COMMITTEE STAFF ANALYSIS P &Z Date: August 28, 2013 TYPE: Rezoning CC Date: October 15, 2013 PROJECT #: Z13 -0003 Project Number: Z13 -0003, DATCU Corporate Headquarters Request: Rezoning of approximately 10 acres from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRM[_J) zoning district and use classification with an overlay. Applicant: Larry Reichhart Spring Brook Planning Group 1608 E. Windsor Denton, TX 76209 Property Joseph P. Delaney, Bishop Owner: 800 W. Loop 288 S Fort Worth. TX 76108 Location: The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. Size: 10.112 acres +/- Existing Zoning Neighborhood Residential 2 (NR -2) Designation: Proposed Zoning Neighborhood Residential Mixed Use (NRMU) Designation: Existing/Proposed Existing Land Use /Infill Compatibility Future Land Use: Case Planner: Johnna M. Matthews DRC Recommendation: The Development Review Committee (DRC) recommends APPROVAL of Z13 -0003, subject to an overlay. Development Code/ Zoning Analysis The proposed NRMU zoning district is one (1) of seven (7) zoning districts within the group, Neighborhood Residential. The purpose of the Neighborhood Residential land use is to preserve and protect existing neighborhoods and to ensure that any development is compatible with existing land uses, patterns and design standards. Land use categories within the Neighborhood Residential areas include: NR -1 Neighborhood Residential 1 NR -2 Neighborhood Residential 2 NR -3 Neighborhood Residential 3 NR -4 Neighborhood Residential 4 NR -6 Neighborhood Residential 6 NRMU -12 Neighborhood Residential Mixed Use 12 NRMU Neighborhood Residential Mixed Use The tables below summarize the permitted uses and general regulations of the existing zoning district of NR -2 and the proposed zoning district of NRMU. The highlighted areas show the differences between the two. Although both zoning districts are located within the Neighborhood Residential group of zoning district, the proposed zoning district allows more commercial uses, whereas the existing NR -2 zoning district allows more residential uses. To address neighborhood concerns, staff recommends an overlay to prohibit certain uses. The overlay will be superimposed upon the base zoning district of NRMU and shall modify the permitted uses. The NRMU zoning district shall be limited to the following uses at this location: • Professional Offices • Community Homes for the Disabled Pursuant to Section 123.003 of the Texas Human Resources Code, it is unlawful to prohibit Community Homes for the Disabled in residential zoning districts. Specifically, it provides that a licensed community home is a "use by right' authorized in any district zoned as residential. Categories Residential Land Use Agriculture P (Proposed) P Livestock L(7) L(7) Single Family Dwellings P N Accessory Dwelling Units SUP L(1) N Attached Single Family Dwellings N L(40) Dwellings Above Businesses N P Live/Work Units N P Duplexes N N Community Homes for the Disabled P P Group Homes N SUP Multi - Family Dwellings N SUP L(4) Fraternity or Sorority House N SUP Dormitory N SUP Manufactured Housing Developments SUP N Categories Commercial Land Use ... Home Occupation P P Sale of Products Grown on Site N N Hotels N P Motel N N Bed and Breakfast N P Retail Sales and Service N L(17) Movie Theaters N N Restaurant or Private Club N L(11) Drive - through Facility N SUP Professional Services and Offices N L(17) Quick Vehicle Servicing N SUP Vehicle Repair N N Auto and RV Sales N N Laundry Facilities N P Equestrian Facilities SUP N Indoor Recreation N N Outdoor Recreation P SUP Conference /Convention Center N N Major Event Entertainment N N Commercial Parking Lot N N Administrative or Research Facilities N L(14) Broadcasting of Production Studio N L(14) Sexually Oriented Business N N Temporary Uses L(38) L(38) Categories Industrial Land Use Printing /Publishing N ... N Bakeries N L(21) Manufacture of Non - odoriferous Foods N N Feed Lots N N Food Processing N N Light Manufacturing N N Heavy Manufacturing N N Wholesale Sales N N Wholesale Nurseries N N Distribution Center/Warehouse, General N N Warehouse, Retail N N Self- service Storage N N Construction Material Sales N N Junk Yards and Auto Wrecking N N Wrecker Services and Impound Lots N N Kennels L(37) N Veterinary Clinics L(14) P Sanitary Landfills, Commercial Incinerators, Transfer Stations N N Gas Wells L(27) SUP L(27) P= Permitted, N =not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 and the limitations are listed below: Limitations L(1) = Accessory dwelling units are permitted, subject to the following additional criteria: 1. The proposal must conform with the overall maximum lot coverage and setback requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed 1 per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential stricture shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA unless the lot meets the requirements of L(1).5. 4. One additional parking space shall be provided that conforms to the off - street parking provisions of this Chapter. 5. The maximum gross habitable floor area (GHFA) of the accessory residential stricture shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size Institutional Land Use Categories Basic Utilities L(25) (Proposed) L(25) Community Service N P Parks and Open Space P P Semi - public, halls, Clubs, Lodges SUP P Churches P P Business /Trade School N L(14) Adult or Child Day Care SUP P Kindergarten, Elementary School SUP P Middle School N P High School N SUP College N N Hospital N N Elderly Housing N P Medical Center N P Cemeteries N N Mortuaries N N WECS (Free- standing Monopole Support Structure) SUP SUP WECS (Building- mounted) SUP SUP P= Permitted, N =not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 and the limitations are listed below: Limitations L(1) = Accessory dwelling units are permitted, subject to the following additional criteria: 1. The proposal must conform with the overall maximum lot coverage and setback requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed 1 per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential stricture shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA unless the lot meets the requirements of L(1).5. 4. One additional parking space shall be provided that conforms to the off - street parking provisions of this Chapter. 5. The maximum gross habitable floor area (GHFA) of the accessory residential stricture shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than ten acres in size. An SUP is not required for such an accessory residential stricture where the lot size is equal to or greater than ten acres. L(4) = Multi - family is permitted only: 1. With a Specific Use Permit; or 2. As part of a Mixed -Use Development; or 3. As part of a Master Plan Development, Existing; or 4. If the development received zoning approval allowing multi - family use within one year prior to the effective date of Ordinance No. _2005 -224; or 5. If allowed by a City Council approved neighborhood (small area) plan. L(7) = Limited to two (2) animals on parcels one (1) to three (3) acres in size. Additional animals may be added at a rate of one per each acre over three. L(11) = Limited to sit down only, and no drive up service permitted. Limited to no more than 100 seats and no more than 4,000 square feet of restaurant area. L(14) = Uses are limited to no more than 10,000 square feet of gross floor area. L(17) = Uses are limited to no more than 25,000 square feet of gross floor area per lot. Other permitted uses may be larger with approval of a SUP. L(21) = Bakery and bottling areas not to exceed 2,500 square feet. Sales on premises of products produced required in this zone. L(25) = If proposed use is within 200 feet of a residential zone, approval is subject to a Specific Use Permit. L(27) = Must comply with the provisions of Subchapter 19, Gas Well Drilling and Production. L(37) = 5- acre minimum land area required and no more than 25 kennels per allowed, including indoor and outdoor runs. A natural buffer strip is required adjacent to any residential use. L(38) = Must meet the requirements of Section 35.12.9. L(40) = Limited to a maximum of 12 units per acre. The regulations are generally less restrictive in the proposed zoning district of NRMU as compared to the existing NR -2 zoning district's general regulations. For example, there is no minimum front yard setback, minimum side yard adjacent to a street, or minimum rear yard in the NRM[_J zoning district. Within the NR -2 zoning district, the above general regulations are 20 feet, 10 feet and 10 feet respectively. The minimum lot area in the existing zoning district is 16,000 square feet and 2,500 square feet in the proposed zoning district; the maximum lot coverage in the existing zoning district is 30% with a minimum 70% landscaped area, whereas in the proposed zoning district, the maximum lot coverage is 80% with a 20% minimum landscaped area. The general regulations of both zoning districts are shown below. The differences between the two are highlighted in yellow. The only regulation where both zoning district are consistent relates to the minimum side yard setback, which is 6 feet in both zoning districts. General Regulations NR-2 � (Existing) NRMU (Proposed) Minimum lot area (square feet) 16,000 2,500 Minimum lot width 80 feet 20 feet Minimum lot depth 100 feet 50 feet Minimum front yard setback 20 feet None Minimum side yard 6 feet 6 feet Minimum side yard adjacent to a street 10 feet None Minimum rear yard 10 feet None Maximum lot coverage 30% 80 %u Minimum landscaped area 70% 20% Maximum building height 40 feet 65 feet 10 feet plus 20 feet plus 1 foot for 1 foot for Minimum yard when abutting a single each foot of each foot of family use or district building building height above height above 20 feet 20 feet Maximum WECS height 55 feet 75 feet Pursuant to subsection 353.4.13. a zoning amendment shall be issued only when the following standards are met: 1. The following rezoning conforms to the Future Land Use element of The Denton Plan. The proposed zoning district of NRMU is consistent with the future land use designation of Existing Land Use /Infill Compatibility, as well as the adjacent future land use designation. 2. The proposed rezoning facilitates the adequate provisions of transportation, water, sewers, schools, parks, other public requirements and public convenience. It is anticipated with applicable improvements, when necessary, that the existing public utilities, other public requirements and public convenience are adequate to serve the proposed commercial development. Water is available from the existing 6 -inch main along Pennsylvania Drive. There is also an existing 16 -inch main along the north side of Teasley Lane; however, is not available for tapping. Sewer is available via the existing 8 -inch gravity main along Teasley Lane and the existing 8 -inch gravity main along Pennsylvania Drive. The existing 12 -inch force main along Teasley Lane is not available for tapping. The capacities of the existing water distribution and sewer collection systems in the area are not sufficient to serve the "highest and best use" which would be Multi fancily Dwellings at 30 dwelling units per acre; associated with the proposed NRMU zoning district. However, these systems do have sufficient capacities to serve the proposed and future additions as proposed. The subject property is a corner lot and as such has frontage on both Teasley Lane and Pennsylvania Drive. Due to access currently existing off of Pennsylvania Drive, driveway access onto Teasley Lane is not permitted. Teasley Lane is classified as a Primary Major Arterial per the City of Denton Mobility Plan which requires 67.5 feet from the centerline of the street to the property line to be dedicated as right -of -way. Pennsylvania Drive is classified as a Main Street Collector and requires 35 feet from the centerline of the street to the property line to be dedicated as right -of -way. The proposed commercial development will not result in any increase in school or park demands. Findings of Fact 1. The request is to rezone the approximately 10 -acre site from NR -2 to NRMU, to allow construction of an initial 31,200 square foot, two -story office building for DATCU Corporate Headquarters, with two (2) possible expansions of approximately 16,000 square feet each in the f iture; for a total q/'83,200 square feet. 2. The proposed zoning district of NRMUpermits `Professional Services and Offices" with a limitation; L(17), which states that uses that exceed 23, 000 square feet of gross floor area per use require approval cif a SUP. 3. A text amendment was approved by the City Council on July 16, 2013 to allow an increase in square footage above 23, 000 for any use. The original limitation stated that uses are limited to no more than 23, 000 square feet of gross floor area per use, except grocery stores may be larger with approval of a SUP. 4. The applicant submitted a variance (V13 -0002) to allow direct driveway access onto Teasley Lane. The variance was denied by the Planning and Zoning Commission on May 23, 2013. 3. The site is platted as Denton Catholic Addition, Block A, Lot IA and is currently developed with a church and associated accessory structures. 6 Prior to the 2002 city -wide rezoning, the site was dually zoned Agricultural District (A) and Single Family 16 (SF-16). 7. The site is located within an Existing 7nfill Compatibility Future Land Use designation. A comprehensive plan amendment is not required for the rezoning request. 8. City -wide, there are approximately 7, 425.66 acres located within a NR -2 zoning district and approximately 1, 154.28 acmes are zoned NRMU. 9. Adjacent zoning districts include Neighborhood Residential 3 (NR -3) to the north; Neighborhood Residential 2 (NR -2) to the south; NR -2 to the west and NR -2 to the east. 10. Land uses within '4 Mile radius of the site include approximately 183 acres; of 1rhich .314 acmes are developed with commercial uses; 40.3 acmes are developed with institutional uses, including religious uses; 3.61acres are developed with parks; 137.58 acres are developed with residential uses; .437 acres are developed with transportation related uses; and .92 acres remain undeveloped IL There are no Environmentally Sensitive Areas (ESA) on site. 12. Water is available by connecting to the existing 6 -inch main on Pennsylvania Drive. There is also an existing I6 -inch main along the north side of Teasley Lane. However, the I6 -inch main is not available for tapping. 13. �eirer IS available via existing 8 -Inch gravity main along Teasley Lane and existing c- inch gravity main along Pennsylvania Drive. There Is an existing 12 -Inch force main along Teasley Lane, which is not available for tapping. 14. The capacities of the existing crater distribution and Seller collection systems In the area are not sucient to serve the `highest and best use' of the proposed zoning district of NRMW, ij)hich irould be considered `Multilbtvily" at 30 tArelling Units per ache. However, these systems do have sufficient capacities to serve the proposed and fsture improvements associated with the project that the applicant describes 15. Per the Mobility Plan, Teasley Lane Is classified as a Primary Major Arterial and Is a TXI)OT oll)ned atad iiiaintained street. Peviviylvaviia Drive Is clas's'ified as a Matti ,�treet Collector and Is considered an improved perimeter Street. 16 Coordination with TXDOT's widening plans of Teasley Lane is required 17. A TXDOT permit is required for any construction within Teasley Lane right-of- -way. However, due to access currently existing off of Pennsylvania Drive, driveway access onto Teasley Lane Is not permitted Hoirever, the applicant has submitted a variance (V13 -0002) to allow access onto Teasley Lane. 18. ('it1'rentpaveiiient11)idth ofPevivi ylvaviia Drive Is 30 feet. The development Is required to analyze the Intersection of Pennsylvania Drive and Teasley Lane to determine the need for any street improvements, (i.e. turn lanes). 19. There is off ite drainage that is required to be conveyed through this Site lender fdly developed conditions In accordance 11)Ith the (pity of Denton Drainage (711teria Manual. 20. A public drainage easement Is required to be dedicated to accommodate the storm system by this development. On -sate detention may be required 21. Electric Service ij)ill be provided by Denton Municipal Electric (DME). Development Review Committee The Development Review Committee finds that the request IS CONSISTENT with the general character of the area and IS CONSISTENT with the Denton Plan. Based on the findings -of -fact, the Development Review Committee (DRC) recommends APPROVAL of Z13 -0003, with an overlay, to address neighborhood concerns. GENERAL NOTES -TOTE: Approval of this request shall riot constitute a waiver or variance fronr arty applicable developmelit requirenrelit unless specifically rioted irz the conditions of approval alid consistent with the Delitoli Developnrelit Code. -TOTE: All >>,ritterz comnrerzts made irz the apphcatiorz arzd subsequerztsubmissiorzs (?f'irzfor^nzatiorz made during the application revieiv process, irizich are orz file i0th the 00) ofDerztorz, shall be considered to be birzdirzg upon the apphcarzt, provided such comments are riot at variance frith the Derztorz Plarz, Derztorz Development Code or other development regulations irz eff "ect at the time of'developnzent. Surrounding Zoning Designations and Current Land Use Activity: Northwest: North: Northeast: Neighborhood Residential 2 (NR -2) Neighborhood Residential 3 (NR -3) Neighborhood Residential 3 (NR -3) (Church) (Single Family) (Single Family) West: East: Neighborhood Residential 2 (NR -2) I I f 4 Neighborhood Residential 2 (NR -2) (Single Family) A - I (Church) Southwest: South: Southeast: Neighborhood Residential 2 (NR -2) Neighborhood Residential 2 (NR -2) Neighborhood Residential 3 (NR -3) (Single Famih-/Undeveloped Land) (Single Famih-/Undeveloped Land) (Single Family-) N'ource: ( i6) gfDenton ( ieographical brjormation Nylvteni and site visit by ( i6) staff Summary of Surrounding Zoning Designations and Current Land Use Activity: Land uses within 1/4 mile radius of the site include approximately 183 acres; of which .314 acres are developed with commercial uses; 40.5 acres are developed with institutional uses, including religious uses; 3.6lacres are developed with parks; 137.58 acres are developed with residential uses; .457 acres are developed with transportation related uses; and .92 acres remain undeveloped. Comprehensive Plan: The proposed rezoning request does not require a Comprehensive Plan Amendment. The site is located within an "Existing /Infill Compatibility" Future Land Use designation. According to the Denton Plan, within established residential areas, new development should respond to existing development with compatible land uses, patterns and design standards. The plan recommends that existing neighborhoods within the city be vigorously protected and preserved. Housing that is compatible with the existing density, neighborhood service and commercial land uses is allowed. Zoning Allocation: This rezoning request affects the zoning allocation of the NR -2 and NRMU zoning districts throughout the City. Currently, there are approximately 7,425.66 acres of land within the city that is zoned NR -2 and approximately 1,154.28 acres are currently zoned NRMU. If the applicant's request for rezoning is approved, the NR -2 allocation will decrease to approximately 7,415.55 acres and the NRMU zoning district allocation would increase to approximately 1,1643 9 acres. Zoning Allocation Estimated Im pact Analysis Current Allocation Proposed Allocation Zoning District (acres) (acres) NR -2 7,425.66 7,4 15.55 (Existing) Potable Water NRMU 1,154.28 1,164.39 (Proposed) peak hour (GPM) Nearest Fire and EMS Station I;otrree: 00) of Denton ( ;LS, Fire. Department, alid E_11S Water and Wastewater Demand and Capacity: A. Estimated Demand: Subject Property Estimated Im pact Analysis 10.1 acres f Proposed Demand Adequate to Serve (Yes or No Permitted Densit-v N/A N/A Potable Water Consumption at 18 (peak) Yes peak hour (GPM) Wastewater Generation at peak 15 (peak) Yes hour (GPM) B. Available Capacity: The anticipated water demand for this development is approximately 18 gallons per minute (GPM) and the anticipated wastewater demand is 15 GPM. Water is available from the existing 6 -inch main along Pennsylvania Drive, provided the property is not subdivided. The existing 16- inch main along the north side of Teasley Drive is not available for tapping. Sewer is available via the existing 8 -inch gravity main along Teasley Lane and the existing fl- inch gravity main along Pennsylvania Drive. The existing 12 -inch force main along Teasley Lane is not available for tapping. The capacities of the existing water distribution and sewer collection systems in the area are not sufficient to serve the `highest and best use' in the proposed zoning district of NRM[_J, which is "Multifamily," at 30 dwelling units per acre. However, these systems do have sufficient capacities to serve the proposed and future improvements associated with the project in which the applicant describes in his letter of intent. C. CIP Planned Improvements: None Roadways /Transportation Network: A. Estimated Demand: Subject Property Estimated Im pact Analysis Adequate to Serve (Yes 10.1 acres f Proposed Demand or No Permitted Density N/A Yes Average Annual Daily Trips (AADT) 570 Yes PM Peak Hour Trips 86 Yes B. Available Capacity: Teasley Lane is a TXDOT owned and maintained roadway. Currently Teasley Lane is a 4 -lane divided roadway. TXDOT is planning to widen Teasley Lane to a 6 -lane divided roadway. Current access to the property is off Pennsylvania Drive. Pennsylvania Drive is classified as an improved perimeter street. C. Roadway Conditions: Teasley Lane is two -lane asphalt roadway with borrow ditches. Current pavement width of Pennsylvania Drive is 30 -ft. The development is required to analyze the intersection of Pennsylvania and Teasley to determine the need for any street improvements (ie. turn lanes). D. CIP Planned Improvements: None Environmental Conditions: There are no Environmentally Sensitive Areas (ESA) on site. Electric: Electric service will be provided by Denton Municipal Electric (DME). Exhibit 2 Location /Aerial Map Exhibit 3 Existing Zoning Map '41 V` -3 SMOKERISE CHAPEL w.. ................ R -2 CL A, BBOT'S RMU HIOBSO TEA,BLEY CL ui R -2 NR-2 EL CIIELITO z EL PASEO NR N - -3 EL PASEO NR N - Exhibit 4 Proposed Zoning Map Exhibit 5 Future Land Use Map LYNHURST Uj SKYLARK �- 0 GATEWOOD C.� SANDPAPER SMOKER ISE x � a�a� WU� Use EXISTING LAND USE CHAPEL w 0 PRO NjIoCF Ln U BISHOPS PARK 0' ; ABBOT'S z 0 HOiBSCN TEASLEY w ij Site z ry SANK ESTIN z w CA.KIH LR ASST , SITE EXISTING LAND USE B,ENTOA.IKS ExOinnq Land Use i 0 EL CIELIT N Exhibit 6 Notification Map & Responses [SITE ---- I Legend N Zl 3-0003 A -,"A'. 400 NO 0 400,Feeal J, m1liumomm DENTON NOTICE F PUBLIC HEARING Z13 -0003 Corrected Notice The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding the rezoning of approximately 10.1 acres of land from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. ` Please circle one: In favor of request", eu"tfaAR ques �i_ Opposed to request Reasons for re: Ec c�i`F ✓'`C (� T� 3f l�wefJultle r �i1/k (�v�G.3 Gc y Signature:�W hv4 L�Oa Printed Name: Cams �N d/� Gt �t CD ��/ h P-,+-!p ' Mailing Addres ems a,rr ire oNNs ll c ve v7 dtI2 Q °2 City, State Zip: � o ✓Y�.� _ �' % �U� Telephone Number: q[ 0 r I g/_ y 4//C/ Email Address: � - -- What is the physical address of the property within 200 feet: ✓Qc Pa ceu /( CITY OF DENTON, TEXAS CITY HALL WEST - DENTON, TEXAS 76201 - 940349.8541 - (F) 940.349.7707 200' P &Z Notice Duplicate notice for 2801 Teasley Lane. OTICE OF PUBLIC HAG Z13 -0003 Corrected Notice # The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding the rezoning of approximately 10.1 acres of land from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at I the southwest corner of Teasley Lane and Pennsylvania Drive. i The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this ' request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (171is in no way prohibits you front attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: ii Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Mtn: Johnna Matthew,, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for 07ppm1 afi on: oIS'L,y -S70 "l !r_KG;:9 `_ 7-I(S i Signature: Printed Name: Mailing Address: 2-9-6 ( 1'C-1'C-y City, State Zip: Telephone Number: 56 3 Email Address: What is the physical address of the property within 200 feet:o ( 7CrCC y'_W CITY ®F DENTON, TEXAS crrY HALL WEST ° DENTON, TEXAS 76201 940.349.8541 (F)940.349.7707 200' P &Z Notice Duplicate notice for 2801 Teasley Lane. NOTICE OF PUBLIC HEARING Z13 -0003 The Planni. an' Zoning Co ission of the City of Denton will hold a public hearing on lNednesd y, ", 24, 2013 and onsider making a recommendation to City Council regarding the rezo in of approximately .1 acres of land from a Neighborhood Residential 2 (NR -2) zoning dis ct and use class . ation to a Neighborhood Residential Mixed Use (NRMU) zoning district and IassificA it n, for DATCU's corporate headquarters. The property is located at the southwe t corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 216 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would tike to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. - Please circle one: �favor_of request J Neutral to request Opposed to request Reasons for Opposition: USL WC% 141P-C- 4-L'10 J-1 _r' (C-cf y 4-t- (_ c—i 1,16 2 C/17' `ro Cc'—/--f' -, Signature: Printed Name: r14 CJL /M"iM sT�`r Ve Mailing Address: 2-1?,l ( �C '� �S �� �!) `�� h •�2 City, State Zip: �C-cv K 76 �_c) 5 Telephone Number: 14c) 'SG G _ -3 31 Email Address: �I�✓ S`�rtl7^7c -�/ ��' What is the physical address of the property within 200 feet: two( /�Cwr✓S << � I� CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200 1 -'3Z ;dnirce No response indicated on returned notice. NOTICE OF PUBLIC HEARING Z13 -0003 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, April 24, 2013 and consider making a recommendation to City Council regarding the rezoning of approximately 10.1 acres of land from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request Reasons for Opposition: Signature: Printed Name: Mailing Address: City, State Zip: Telephone Number: Email Address: What is the physical address of the property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 - (F) 940.349.7707 200 P&Z Notice NOTICE F PUBLIC HEARING Z13 -0003 Corrected Notice The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding the rezoning of approximately 10.1 acres of land from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: _( ry In favor of request Neutral to request Apposed to request Reasons for Opposition: Signature: Printed Nam Mailing Address: L,)-, l 5 City, State Zip: Telephone Number: Emai{ Address: JIN V' ., r M, i Y3 C-- %"7 What is the physical ad the property within 200 feet: <. CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 - (F) 940.349.7707 200' P &Z Notice NOTICE OF PUBLIC HEARING 213.0003 Corrected Notice The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding the rezoning of approximately 101 acres of land from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at the southwest corner of Teasley lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject properly, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken Into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits d- partiiipatinggn--the public- hmHng.),- You--may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request ' pp s to rques eaop osprhh esr: We the request because the proposed fencing is inadequate to protect the value of the existing residential areas. Signature: _/ _ _ _ 14ML9 Printed Name: Charles and Kathryn Parker Mailing Address: 832 Southmont Drive City, State Zip: Denton, Tx 76205 Telephone Number: 940 -891 -4840 Email Address: allifer @aol . com What is the physical address of the property within 200 feet: 832 Southmont Drive, including parcels 165503, 32909, 32907, 32904, 149061 and 219042 CITY OF DENTON, TEXAS CITY HALL WEST • DFNTON, TEXAS 76201 + 940.349.8541 - (F) 940.349.7707 200• r=az Nonce NOTICE F PUBLIC HEARING Z13 -0003 Corrected Notice The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding the rezoning of approximately 10.1 acres of land from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to request 1s for Opposition:� 'e/ Signature: `/'Y v °V' ` % " Printed Name; A/ d In Q 1� ")4 r Mailing Address: °� g// c 4.Ain C City, State Zip: INTO iY. 7G4_0�6_ " Telephone Number: %?-Ye - X38.2 - ,�9s Email Address: 1&.441AI, A (2 Ve,e d' .Z- ary, ,ve va 7 tree %zoN, Hof What is the physical address of the property within 200 CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P &Z Notice Attached to returned notice above for 2811 Carmel. c/ rzr2 7-4�tPi�e� -24v NOTICE F PUBLIC HEARING Z13 -0003 Corrected Notice The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding the rezoning of approximately 10.1 acres of land from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request (Opposed to request Reasons for Op osition: / �< L1� /fl' f�ctcJr cV1\ Signature: / c Printed Namek/_ 14 PAC_12f z'r_- Mailing Address: City, State Zip: ! lz!2j (4 762,)-- Telephone Number: D � L r 2, )`7Z_ Email Address: (P 527 4z ,--� '�_0- What is the physical address of the property within 200 feet: 7�U/ 1267 M f =2u11JZ>//_A OI- j "'Z� , iT/ 76 2-t) CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P &Z Notice NOTICE OF PUBLIC HEARING Z13 -0003 Corrected Notice The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding the rezoning of approximately 10.1 acres of land from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feel about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Opposed to requ Reasons for Opposition: Signature: Printed Name: Mailing Address: City, State Zip: QJ -r 9 r1, l x Telephone Number: Email Address: What is the physical address of the property within 200 feet: t \-A" ' t-t�" k? . &YJ6 1 LA NA, L 47 CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P &Z Notice NOTICE F PUBLIC HEARING Z13 -0003 Corrected Notice The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding the rezoning of approximately 10.1 acres of land from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: _ In favor of request Neutral to request Opposed ed to req Reasons for Opposition: aAI_Cv s7, 77VAs tat OZQd' X'F 7_ 2'ai`fr,14 J' e&<AQ Muir i.3' A .egli -I &-V 7-1,14 VEiGUt,nk > ✓ne.ri t3V A4e 4-1a /10,rd ua7Z err £<�rr PPn �riak d , .,PeAPrrnals' A/e r° - r bn/',.vrn x1ar 1Z tMd_s Jnz jpz_ficE Ii,/ ,7gg-17 Signature: Printed N e: .�- y�r �„ r Mailing Address: 3�� C� 4nnPdd, City, State Zip: Telephone Number: 9,yrr. Email Address: ,rvs? rs�ie�rc6 vrErr�i�a�, ��vP What is th/e� physical address of the property within 200 feet: CITY OF DENTON, TEXAS CITY HALL WEST • DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200' P8Z Notice NOTICE OF PUBLIC HEARING Z13-0003 The Plannin tsning mmission of the City of Benton will hold a public hearing on Wednesdayl 24, 201 3 a d consider making a recommendation to City Council regarding the rezoni pproxi ly 10.1 acres of land from a Neighborhood Residential 2 (NR -2) zoning dis ric d__u classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, for DATCU's corporate headquarters. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject property, the Planning and Zoning Commission would like to hear how you fee/ about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from attending and participating in the public hearing.) You may fax it to the number located at the bottom or mail it to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: w.- In favor of request Neutral to request Opposed to request is for Opposition: [A/ S &V/)O r/Q 716#13 02 Crdl `a/vP N / s A6tk7f o. eOIda6YP Y2c /OAC PIAL,0(�L -1Cx �rT�} /u 14 <u /cE> vF /bl Z . moo A� IV , X1 la AFB,' l SY' 0 �5 rls, /'� %f / u ', 'r'A )l k i4�! 7 z -Zt S c'r�n� G✓ /tS c) ! CI f°y �<a�e�rz T' + At s4 t .`� /bbd ��u i •y`-((-�'- !�%� /J�1� e-/�r/ Pc�L � t-ycu^ �h`� ,� cv� c�� ���, j wL� n &F /-?7z— >P_vt &T;-u rs �� /a ra�,�v Signature: Printed Name: Mailing Address: �2 `- tJ City, State Zip: 12 ef:7 T V Z/ %l ZZI 5 Telephone Number: Email Address: What is the physical address of the property within 200 feet: 77 7? %Z21 i i7/ 74� 00'x_ CITY OF DENTON, TEXAS CITY HALL. WEST - DENTON, TEXAS 76201 • 940.349.8541 • (F) 940.349.7707 200 :, "„z Notice Exhibit 7 Applicant's Letter of Intent & Attachments February 16, 2013 T NRMIUI bcrh Resklerdibl 'Mixed NI be o A 14,000 s4a one s .: sanduary lo, 8 poftble bulldnp sotMingi apprMhabill 9,,620 of ru IFmt building IsapproxImaftly 14,92% a,1" 4, Wal andl S,wiitaty ,S&ww wdsting an site In, 11i ESA Mlingi & i North: Nllk-3 (single4amfly r esidal Soulk. INIP,2 (singiskmWily residential) Eat II- (Southimont Sal bur hr Wait I lR-2 (single4aWly m1donlial), a] Weekar.9b ww%.M slqs l DATCUII offim am not cW on weekends. Imp al to S x x x` we expected to be wxu,, r x q b; A xw Y- ssti g 7,30,wkill4nosi x x out by n ti A p , u , -,w a of ,, s DATOU t a minr Ill N will rot and Ailslill not even 901 tD the ii ft0k. Ax xw, Mb�Yj xf PM -N ftm shoukh"t be any aft,mow, iW " x Ths oxidng zonbV Is NR�, Offfos use Is not a pwMilted usM I In NR-2 (RAaMnq required)I. The undedyingi land use is Neighborhood Cenbsirs which Is In the, NR ftrnily� of zonin�g d1wittiv. Wthtmj Ow NR Disbids, OMc* U" Is Wialwod in tha NRMUI-12 wW, NRMU zwInq dkMtb *ft Uniftadmw Commervial Land Uve, Ca*WrW II NR 11 I NR-2 I NR-3 I NIR-4 � I MRME16411,Ml 1414) a, Uses am, lmftd lo rw mom Own Wn Immorodl (10 )vpam 1*09f9im" row, vm� L417) us" sm, emit" to " *W**" tW**Y-fiv6'ftMWMW (nmal, bo ISW vft APPM"I of aft, SUP�, 1111 1111f The aft 11114 va=cied to 11IIlRIUINIUIII the IllJm "Q'I'meed vwx1id IAaf bim ffi-111111�121U-qh m text musiridni i pirrIt. &AMIA of IUJ n L(l 7) 14 uflIiked 6 Irmo In, Um cods bA Is only Iratoll Sales and SorOws and PftO4Wonsj Services and Oftos — um tow U" Cawood" �"`INr" I Wt-,�f�:WFW �� NR4 RRA, � NIRMU612 INRMIU ROWN $aI**,WWI N N IN N qlo� N PffAm*Wsl Sank", w4 00p",'. N N N L(1y) ......... Re9knal I)Wcti: - L (17 ) Witently allows groesty stores to be larger tMn 25,000, of upon apotoval of an S- IP. 'The allows fm an * of the nOW knpactc (traft, noloa, asgtherlics, archkeouiire, lighting and lands aping) that the grocery apermidon wt bnvn on the simoonding nolghboNhwds and pmAides opportunity to adOgats, negallys brpscls. nmon sense talls us th,at Vve potengal Impacts of an offloo a so, "iter, Than 25,0001 rf, aro Immensely less thain dnose of n gr000ry store Ll 7 to couki mylsed tags :. Allow aMj use to be expanded beyond 25,0M, n UP ftor am �P , u �� Danbm Plan iAmn ism a, 'This development miests or exceeds many of the stated gosh, and policies found In the Denton Plan Including'. I ru : WA forzoning smondmea Ho+ ur or It L(I is modified to, allow for Inommod Wilding, ofts, through Ove s, that ur 4o"wwmt ' Up" o Ill, mood or omaeod the arid. � =1 I M PIT" EAiM I r 0% rl D J lrG IS EARTMZONWIW ' f Illltlld b 4 �l VrvmV'tla� r°�✓i � �r; � ���� v a ���Ojf/ numA "� "frl 9h�r laws nib`s del 'P X =12T.'777 l 4 mn va J ���wu wwwarw�urtw maw ! %opt /��i�i�i0� /���7 �a fi6yl/ i// �I%/!// 10//////// 1///////(( Ol////////// Oa0% �//%///I/ O/O/O//�r///.,�1>"h•�"79�,,,.'� ,.; " �1% �' 7�mlJ�' �y�1NN ,i➢1yi?l➢����%111�1�111i1Y�; c � h +N'p pH lJm: r lyaE3 lily Yd�W�! � Y N EwY,)li 'mm "'wk ..«, ??? e c ji-I "Z[ rt wN �„ jlufPo G � a yy ��yy d I ps p; a M.- I I "—�, ME Thr� Nh�w Way lc� nardr To wholn it rrwy COMAJO: T-K lef.ter aufho6m� Sphng Brook Manpng GrDuprnLariry, Rcrlhhart to represent fw'f"u*jr% of Dentilan Caffu,�tl( AJdo,�an, Klu(k A Lot la, cocrimcufly reforred to, as 2W Ov'i��A n a ' )Alw* I)e n1vcmii, TX 16205,8306 'P (), Box 827 DenWn, "I"K 76202,10,82? � "ll"iAll,fitmp 8616-387,85S!"i 0 irfatcu,org' Exhibit 8 March 19, 2013 Neighborhood Meeting Minutes IVAIVEI 0 / OFFII ( 11111110i �( pri 1�i1r Tray tats. ,tuahnna Marems, Senor Planner atyof Derr From Larry'Perchhart March 29„ 20f13 fie: dotes frrrn M a ch 19, 201 DAT U I lmd IMeetii General! Overview: DATDLJ opened the meeting Wth some baackglraaurnrll iinfo rmmiatiio n can DAT Lp„ why they need to move andl My they tharruwglht they vwrrulld be good ne�lhibors. That'wwas follmed by a presentation by Song, Brook Planning Group (SdP' ) regarding the existing arid! proposed zoniing as well .as the impact of ILA 'I a j. SBR31 also discussed the possibility off urill'iziiung an Oveday on the property if there w+ re any coricems regarding aill1 owedi uses other than: the Prof stounall Service and Ctffioa us needled by'DAT(-',tf.. • There was some general dascussi,cn lregarding concerns, or reservations regarding other atlruwwedl uses, but no single use was identified to be altered or removed visa the overlay. • There was also, a discussion near the end of the meeting reqardirig the prussaNlitwy of ai deed restriction thautvwrould limit the use d the property and not alllaw for any future, rezoning of the property o DATC UI responded that they wr oUd investigate the impacts of a deed restriction Faust :stated that they were designiingl the building and site so they could Utilize iit for 75 yearn or more. The zoning discussion was follbwed by a dacussiioln on the SUP process and that D TCtf wwa4s cormnmtted to build the site arnd tie taurldirng as presented at the, neiHghbaftod lm tirng and as amended based upon input received at the rrreetiing_ S8PG, then discussed traffic and the driveway variance. SBPG stated that the pmposed use would not (have a rna-ajror impact on the sur uunding traffic piurse the nnrorming neigbborficod traffic (iinududling, inn IHouston drop-cff traffic) has ckared the area by 7 :50ash AIlwil bwwhich is akorault the firma Me DATC traffic arriives in the area. The reverse sAuataon (happens in the PM. DAT UI traffic leaves the area at 5prni mid clears tt-e area before, nest neighbors arrive home- Addlitilmalfy, DATC LJI is proposirig to develop the pmposed Teasley Lrane dVrriewway with a diece ration Mane ton, maintain traffic flow on Tea-Jey SBPG1 finished vAh a brief discussion on 15uuflferiing mquiramerds arid l identified that DATC UI would like to nnauir wLiin a park like wetting with vwwalllkiungi trails throughout the site and, use vegetation! (Trees, Evergraeens„ understary trees„ shrubs and grasses) For screening arid wanted to hear the adjacent neighbors thouglids on lee proposal. The rnediiig ms, opened, k'K disawkc 0 The nurnber one is%we I topic M disitxisSion was trafffic, The Peninsylvaniia I Teasley Intersection i!s the nuiiiber onie coiniomi of Me neighbors, ■ The fini4igi of .i tir Illo ghts at Hobson & LiNian Wier do not provide, adequate tin,w, (gaps on traffic) to Wbw N, )r a safe himirxg mmeITWIFA fnzmm Pemi onto Teaswy DA rCIIJ's proposal was misidered to be II s ofa h4affi cconceni Ilhan other Ip Merifial deve lopmerAssuich as, a new diu rah widi a, school s iden lified as, the most desi rable Prw6ng a Traffic Liglit at then �rsect�ion wa re wkaian to the traff jc, problem o lin'CICOPof-Arg 1, right turn lane from Rtm ijrtisytjvania onto re-askey was i,*nIff ied as It* secoridi famorablesoluifion ■ Possibly in mrAiination withi Southnimt Baptist Churdh adequate REM may be provided to incxAT*rate a tami lane. o Ehmminiatiing oti-stree't Parkiing aknig Aide rilnigi Ptwm'vsy+vajr)ia to 3 faries Were alli!so, raised as options to inm ti gate alve ft, adjoining A number of people emphasized that. a final m4utibn needs; to inw Bapfisl ChUrch and ElemmIary, schimfl in the discummons and dienionstrate (.,,owdiiniaboni with lh& schodules,, Thii ri'lay, "'INo play a Nq part urn ajrq soh korij th.4 inivolves rriakwq Pentts, dvariia. Dr- ai 34ane Iro ad to ease amigestiari,. �DATCUI prornispd tx) knvesligate the options w4h the Ci of Denton and Tx DOT and with Soulhmont Baptisl C�hurch, and Sam Him ston Blementairy as, needed 0 The semid niost discussed issue was Ibuff enng:� Aj'arzentneiqhbors expressed concem th,,,# they wouild Ibe,14rKrliiin7 g at the service area of the 1xiii1ding Whoich included the irmiding d s and troish revetnilent asswefl as the i'llewifico'l Puri m The nioise of, the garhna Itn e-ing Ipicked up aiLESAM wwxAd be anroym-n g. ■ Applicant responded tlh at. they coUd not writirol when the trash) wais picked up Iduut. DATCIl, ll did no( 'Tg"jtj)P, U , 1, n(ILM - "i ia ,h waste, Chat wDiuld requ ire rimAhipIle, pickup-9 eai(J week, ksdificn,ially the llri,c�aton of tt'io reve(nw,rd was located to irw*A bly, requirernents and iiiiinknizze, knpact. w adjacent Iproperli es. m Questiailed it the pondmuldl have standing wateir and Ibe , a bireedmg grOUnid for mosquitoes a Reespoirise The prrnfururmurrll at MiNbum, was to dk iip a Ifiltrabon, swale m&6ch sItiould not hold water. * Adjarant ineighbofs were also conicemed that. the proposed wallking trailLsmuld ICnuu ig.1 unkincwn people veiy ckise to their prope-ilm-s, * Adjacpint Irnoig htyx's requested aii.Wid sco iristead 14 Proposed u IrwIlujiml Vorptlifion, 9 �DATCU saad anal they would build a sollid screen ff that's What the neighbors wanted 4, Flage 2 0 Variarme rhscussimv o, For( 0* triost rmirt, fool thought that a drivolovay (,),nto Tew,4-ty would [,* a be)(Alt lo traffir, Jib Two individuals couild only sutpuport the projp-d (a nd the variancfe) it there was no, access, to Pennsylvania, T'hicro, also asked fif vooUd ibe possib,110 tun close the Perm dlirivfmay and get tm curt,u, CLAS ordo, "I easlo�'�v The applicant resounded that he d&l think 2 separate curd cuts onto Teasley w uk! to possible. A conicem,wars raised [hal, our right-otit. onto Teasley could polenfially inteerferewith traffi,c at the, Pei,)nsylv,,,,vva inlersecton, A, qUestion it egaird ing why DA TC ;U thought they wouild be suiccessful Mh and drivemay vanan,ce when St. Mark was recently dien4e d a diriveway onto T6asley and that's one of the reascmis, livere momg. ask,&J W respos,W lo, Mal qt*stion, As l as Greg knew, d had baen at least 7 years since the, church IbL*eid into a vainaince and INe wasiril even sun e I warms was apploed lcw. St Wrk always i nut EmckcI to Ibuidl a newsanctuary on the open space mst,of the thorcn rs hurch stmicture, (appi,,oxinvillely E aCrLOS 5 The total site, area is 10 acres, and INI'lorth Dicncei* now requires r*w cfiurdvs t,o fiave a rninirmt,,vn iol AO acres, that's My Sl Mark is r flotatinq Greg we nt: on to & ay t hM St Mark actuall, r had a Itnetter offear fromi another church that wanted to Ibuilyd an tm, story scfiooll on vacant 5 acres ailong the west smde,cut the property but the Builldinq Commi ftee ft-ught that the DATCIU project woukt be a better fit f or tie iveigihborhoodl berAwusw of DATCIA reputafi ori ai,,ild corm,00nerl to, tie area, 1'.)AI CU w cPufld produc* IWu ss traffic arid provde, a lax Imse fix lhe city', It Grog al,50 remiioded folks that the St Mark trafficaKo unckidled a moming worship sepAice everyweek, day as well Lis, sonv.-, moming, aftemoon and evening dasses. 0 Page 3 GeveraJ Qtwsfioins md Reslwynses Question, Applicant Resixxtse the btAfdwog eing design ibir vedical NO ds there Ilse m' ' subledng of offac* No ProbaNy 251,rigfi less wigh appropiale What MR Ian arkhg lot rghtiung be*, like ? shielding in, direct Ighting onto, tie All Oy rPqiaOen*r-jF"AI be, met, The stems over parked at this, fin* because wherp'Aa,*1 h"Alre PaNjing be? he exisfirg chur& paAmig fadhtias,�.*re beirci , t4ifized tm"A wes W, kove Ovmv is a(Wqt' nap" parCng foram fLffiffe expansictis. live acrew Teasley and have a rooril in my bar*, yard -wiR ft W vM* f rcon the 2od we'll irm� tm Me WI there The bank ing, and a d0w, thmugh rji No - there -will be m comet vywcm,-.4 adrvdy on . 1he PfOpeo'y' ............... ... ......................... . ................................................................................................................................................................................ . cwioiant nrviumed sigii iii-i the W'h,at. 9#qrk3ge is pmposeqrl? northezWr cmier 0 thie jpmferty. BWUR-g. ------------------------- ------------------------ DATCU Picreases there en:m II "a very stcyMy. They utilze lechnoiMy V and gxA P* %,jzo 0, We figIA11v exrols m— S is a cmrxwrl wii* pfnxbccw, to rnaifntaiin prWiLwAvory fbw Ihml m rrwp/ ernpk)Wes vdl event LollymA mdiod ht* need km, adiditionall einpbyees. on the propeV The site is beiingdeeigned ky fjuture e;KP�IMISM Id MM&ill„ bLA'Wiem."s no way, to know tf lob, I nuritier offtAum ewiooy4s The DATCU firxA-ee WOUld probabl nfail anaflier 3-4, moi ohs to gcl dralmrigs PFWLACO,d a, nd apprm-ed M constnicim, sUrfing as early as AJgUSVS,ePItPh!bP-r. The WK-A is the develop uwrt bn*- franrke? GveraM firmline Ry mnipletmi �k,,Aed fbir fa 11 2014 TN',vt rnowms .ponsIrodwin woOd stad while tie churd) is still opecabing w We cute. That weans construct6imAd stmt "rim ntile 1he Ovurch(6 SIM iVerAng on ft, Mf.t, ....................................................... # 'Popt, 4 Geirlerali CmInvats,; Office Use, rKA compkifible wilih this nFAgMX.WxWxl Office jusp is a belter opkm hart a church MOr sdlool Would not have plurctused ppDp" in &:mAnxd if the sjl.�P. d propeftywacs a cornmemal Bare Houston aV so puts a I kA d traffic o4o Pays 41v'mia, (ad thrvLgh traffic throuji Smd-Inlont Sever'W p, arty cipards, v6cedl sla.xig suWA for DAP Ul as a view roiol a a,,W recog air daunt ft new amporale clficp use repre-sals a significarl decra'ase iin traffic generzkm over tie currerA churd-i or any, other proposed La- Ge'temlly lheremassullprxml' fig Ov avc4a111 "Wo Pkall (Isskulirtg that a s4id streen fenice''Was pravided for adjamint single-family pr%�erfies) armJ kir the, eAerior appeal c4 the fau[41 0 P'ap# 5 Exhibit 9 May 23, 2013 Neighborhood Meeting Minutes Summary, Minutes Southmi Neighborhood Meeting 1123, 2013 The following comments were expressed by residents of, the Sourthmont Neighticinhood during a Community Meeting on May 23, 2013 concerning the redevelopment of the St.. Marks Church site with a Denton Area Teachers Credit Uniion (DATCU), administrative bi 1.. Can a 7-11 be developed on the site if it is rezoned? �2. Reslii If it is permitted by the zoning and there is no liniftation on the SUP 3. When do, we make, our concerris known? 4. Response: At this meeting and public hearings. You will be mailed a meeting notice before the Planning and Zci Commission and City Council ineetings ocruir. S. How are conditions of the SUP followed and enforced by the City: Rjespi They are reviewed during building permit for compliance and after construction by Code Enforcement.. fi. The site naturally drains; to Teasley Lane and there is concern that the detention pond will become unsightly and a breeding ground for mosquitoes andiswe. The detention pond and area sin-rounding should have sprinkler system,, drained, mowed,, and routinely maintained.. Response: 7. What is the buffer requirement on the surrounding areal? Response: A type S. 'Will IDATCU pay taxes?'Respionse: Yes 9. How many employees? 7'S to start may increase to 160 employees in 10-12 years. 10. Why is thisa property so important tci Response:: Price and location. 11. 1CUll,TCUIf repiresentaitives will )have a meeting June 19,L to Southmont Baptist Church to discuss traffic improvements on PennsyWaniai. Response: INoted 12. The C-ftV should postpone consideration of this appification until aftef the mi with Southrnom: Baptist Church. , Response: Noted 13. Extensive landscaping should be installed on perimeter to buffer property from abutting residential uses. Response:, Noted 14. What are the hiiouirs of operation? Response: Generally, 7 arm to 6 prn. IS. An &foot mamnFy waiill should bee . constructed on the perimeter of the property 16. The property should be limited to IDATCU Administrative offices oni with no banking operations, tellers, or drive thru"s and no other utsers should The permitted. Response: Noted 17. Improve intersection to have dedicated left turn, dedicated through, and dedicated fight turn lane. Response. Noted 19. Can we restrict parking structure? 'Response: Yes 19. Can another Church develop vAthout limitation?'Respi It must comply with alli applicable IDDC requirement and any other City pTovision, requirement, or standard. �20 Require traffic saifety and police to monitoir traffic from 8 aim to, 3, pin?'Fiesponse: INoted Exhibit 10 August 13, 2013 Neighborhood Meeting Minutes S11111111, DATCU Nei2hborlaood Nleetiiia Aiif,jist 13. 2013 Johmia Matthew,, gave backz,omid Mfomiatloii oli the reciiiest proposed by DATCU and the otitcome of the public heariiia before the Plaiming ailid. Zolli-1-12 Commission. (PZ) on Jifly —24 2(')13. She explaiiied the differeiice in rises and zeiieral reatilationr bet)veeii the existiiiLj zoiiiiify district of NR-2 mid the proposed zoniiigg district of NRMU. and explained what an cii-erlay zoniii ' a district is'. She explaiiaed the con ditiolis that &taff �wvcinld have recommended to the PZ Oil July 24. Larry Reichhart- SpringBirook Planning Group stated Phase I will be approxiinnately 70 people, oince it gets to 140,-160 ernic1loyees then they will start Phase 1111. The Proposed walking trail has beein removed from the plian, this wilill allow the Ihuuffer to inicrease oni the south side of the property. There k, no proposed detention pond, it is more of a smaller depression. Reichhairt stated #6 of the staff condiflons is open ended, would like to be able to allow for aim addition. The perimeter shows a large nunilber of shirubs, Rei:chhart stated he is proposing to replace sorne of the shrubs with ornamental trees. There is no niasoinry wall proposed, or allanned., Matthews questioned the citizens on who is in favor of an overlay district. Approxiimately 8-10 citizens were in favor. 2 residents on Carmel Street would like to have a fence installed on the back oin thelir property wheire. there is not an existing fence, this would prevent the flow of pedestrian trafflic. Citizen questioned the church property having a 15 foot utflity easement; Matthews stated it is i Citizen stated the existing trees protect the house and area; however, in the fall those Ileaves fall and there isn't any protection frorn the trees at that time,. He 'would like to see more evergreen trees and larger trees that would allow protection from the subject property to the neighborhood all times of the year. Viirgill Strange stated lie is conceirined with there beling no vegetation or wall around the property for protection. This is air example of spot zonhng. Viii-siI1 stated he is opposed to the proposed use, zoning, a ve day, and S U P. Resident on Pennsylvania Drive stated there Is a 16 foot utillity easement and transformer that are in the way. This Is too expensive of a piece of property to be divided into residenflall lots. There is a proposed Church in Iine for this, property If we do not allow DATCU to occupy the space. Resident on Southimont stated this is the right thing for the nedghborhoocl, he sees alil the interest of thilis buil&ng. There are other churches interested if DATCU doesn't take this space. There are additional Issues that should be worked through lincluding screeinnng to meet the nelighboir's concerns. Resident on Lynhurst stated he lives behind Wildwoodl Inn, He stated lie hears a plot, of nolse over the weekends and evenings due to ft being a cornirnerciall business. He would rather have an office building go in due to the aniount of inolse that is producedi by this cornmendall rise, Resident on Southiniont stated Ihi,e highly recommends this request. if we do riot allow this use to go in what use wfll go in there? TNs is good. Resident stated that at flrst neighborl-rood meeting, DATCU stated the proposal warm, for an Crip Center Which MLraliy has call centers, or cash office areac. However, it is now being listed as corpiorate headqLrafters, The building size ver'sus the nurnber of employees is off. Resident stated he doesn't undef5tand the need for the large facfllty. There, is a ptolposed exit lane, however, no added entrance large. Severall residents questioned this gentleman if fie would rather Ihave a school go in this place, the stated he would, Residents stated they would rather not have a schooi here, Dale Kimblie, president of DATCU stated there are approximately 180, employees at this Clime„ which is fewer than there was 13 years ago. Kimble discussed the airnount of square footage that would be' aflowed per employee. Resident quesfloned the size, Kirnble stated to allow room for growth !in the future., Also, this would Allow for allI the ernployees to be under one roof. Resident Mike on Pembnooke stated lie is a rr-retriber of 'St. Mark's Church, Mlke stated DATC U, Is as good ri-rernber for this area, theme is more work to be done wO dfls prolaosal,, however, it is a good rneirnber. Mike stated Southiake Park will aiiwdys been a nice green space for the area. Resident questioned if a traffic study has been completed at the intersection of Hobson Road and Teasley l ane, Briain Lockley stated snot at this t1ime. Staff is worlIking with TxCaOT; however, irnprovernents are flimited. Lockley questioned residents with no fence on the south perimeter if they would like onle, two residents stated that is correct, and there are also DrIME issues with, the setup at this tirne. Vhgfl and another gentler•an who reside on Carrnel stated they have a wire fence and would like it to be replaced with a boundary fence that DATCL), should provide and nia4litalin the fence over the years. Lockiey questioned Carmel resident if another church was going in on this property if lie would expect tVw same of that church. Resider�A stated no. Resident stated he would like a fence to be Installed like the orie that separates Scrudin�roint Church froirn Southmont Place subdivlsion. Exhibit 11 Site Photos Photos taken at the northeast corner of the site Photos taken along Pennsylvania Drive looking west at the site. Photo taken along Pennsylvania Drive looking at existing parking Photo taken at the southeast corner of the site looking north towards Teasley Lane. Photos taken at the rear of the building looking west at existing single family home. Photos taken on the west side of the property looking east at the rear of the existing church building Photo taken along Teasley Lane looking south at the site Exhibit 12 August 28, 2013 Planning and Zoning Commission Meeting Minutes 1 Minutes 2 Planning and Zoning Commission 3 August 28, 2013 4 5 After determining that a quorum was present, the Planning and Zoning Commission convened a 6 Work Session on Wednesday, August 28, 2013 at 5:00 p.m. in the City Council Work Session 7 Room at City Hall, 215 E. McKinney Street, Denton, Texas at which time the following items 8 were considered: 9 10 PRESENT: Chair Jean Schaake. Commissioners: Brian Bentley, Thom Reece, Frank 11 Conner, Jim Strange and Devin Taylor. 12 13 ABSENT: None. 14 15 STAFF: Athenia Green, Brian Locldey, John Cabrales, Aaron Leal, Earl Escobar, 16 P.S. Arora, Johnna Matthews, Ron Menguita, Michelle Berry, Nona 17 Elaine Muncie and Angie Kralik. 18 19 WORK SESS ON 20 Chair Schaake called the Work Session to order at 5:05 p.m. 1. Clarification of auenda items listed in the ReLular Session auenda for this meetinu. and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Bentley questioned if condition seven (7) should state a minimum of 26 evergreen trees, in the event the applicant would want to put in more evergreen trees. Matthews stated that is correct, the applicant requested that as well. Schaake questioned if the proposed trees will blend with the existing trees; Matthews stated that is correct. Taylor stated the effort and detail work put into the landscape plans are great, as well as the buffer. Taylor questioned the overall input of the citizens and their feelings during the neighborhood meeting; Locldey stated it was basically the same as the public hearing. They expressed their feelings on the development and the aspect of the proposed development. Conner questioned if any effort has been made to reduce the size of the stricture; Locldey stated that was not discussed with the owner based on their previous conversations with the stricture being designed to meet their overall needs for today and the future and allow room for growth. Schaake stated the Public Hearings will be heard together and voted on separately. 3. old a discussion concernin, recommended -,eneral oblivation capital improvements. Arora Arora provided a presentation on the Central Business District and Downtown Implementation Plan. Taylor questioned if the information provided includes box culverts or concrete channelizing. Arora stated that is correct. Locldey informed the Commission the information provided in the backup are examples of projects to be funded under the bonds discussed at the two prior Work Sessions. Arora stated staff would like to request what is included in the five year Capital Improvement Plan or drainage projects. Schaake questioned if those are indicated on the list provided; Arora stated that is correct. Schaake questioned if Arora is looking for recommendations at this time; Arora stated that is correct. Locldey stated the recommendations can be provided in a memorandum and forwarded by this Commission. 4. Hold a discussion and .ive staff direction regarding the consolidation of the Central Business District boundary and the Downtown Implementation Plan boundary and recommendations on the handling of that would fall outside of these former boundaries. (Brian Locldev) Locldey stated this item will return during the September 11, 2013 meeting as a Work Session item and Public Hearing. Locldey added if this Commission wants to table the item at that time then it can be heard at the next meeting. Commissioners agreed. Bentley requested in the backup materials a copy of the two maps overlaying one another. Locldey agreed. 2 5. Receive a report hold a discussion and -,ive staff direction concernin' amendin' Section 35.13.7.13.2. of the Denton Development Code regarding, landscape maintenance standards. (Nona E. Muncie) 2 Locldey stated this item will return during the September 11, 2013 meeting as a Work Session 3 item and Public Hearing. Locldey added if this Commission wants to table the item at that time 4 then it can be heard at the next meeting. Commissioners agreed. 6 Schaake closed the Work Session at 6:35 p.m. 7 8 REGULAR MEETING 10 The Planning and Zoning Commission convened a Regular Meeting of the Planning and Zoning 11 Commission of the City of Denton, Texas which was held on Wednesday, August 28, 2013 and 12 began at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time 13 the following items were considered: 14 Schaake called the Regular Meeting to order at 6:47 p.m. 15 PLEDGE OF ALLEGIANCE: 16 A. U.S. Flay= 17 W 19 B. Texas Fla- "Honor the Texas Flag - I pled,e alle,iance to thee, Texas one state under God, one and indivisible." 2. CONSIDER APPROVAL OF TIJE PLANNING AND ZONING COMMISSION MINUTES FOR: A. August 14, 2013 20 21 Commissioner Brian Bentley motioned, Commissioner Frank Conner seconded to approve the 22 minutes. Motion approved (6 -0). 23 24 CONSENT AGENDA: Staff recommends approval of the followin, items because they meet the requirements of the Denton Development Code. Approval of the Consent Agenda includes staff recommendations for approvals and authorizes staff to Eroceed. The Planning and Zoning Commission has reviewed the applications and has had an opportunity to raise cmestions revardin, the items prior to consideration: A. Consider and take appropriate action on request for a Final Replat to create two lots. The subject property is located at 1115 Duncan Street, further described as 3.16 acres of land in the S.C. Hiram Survey, Abstract No. 616, in the City of Denton, Denton County, Texas and all of Lot 4, Block A of the Shady Oaks Industrial Park Addition recorded in Volume 2, Page 55, Denton County Texas and subsequently renamed "Expressway Industrial Park" by 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 re- dedication in Volume 492, Page 54, deed records, Denton County, Texas. (FR13 -0019, Michele Berry) Commissioner Thom Reece motioned, Commissioner Frank Conner seconded to approve the Consent Agenda. Motion approved (6 -0). 4. PUBLIC A NGS: Schaake stated staff is requesting to continue this item to the November 6, 2013 meeting. Strange recused himself from this item. Matthews stated the property is zoned Neighborhood Residential -2 and is proposed for Neighborhood Residential Mixed Use. There were 25 Public Hearing notices sent to property owners within 200 feet of the subject site and 83 courtesy notices sent to property owners within 500 feet of the subject site. At this time 2 were returned in favor and I neutral to this request. Matthews provided the most current site plan. The walking trail has been removed and there will be no pond on the property that contains standing water. Matthews stated staff recommends approval based on the conditions listed in the staff backup. Matthews presented for the Specific Use Permit, Agenda Item 4C in order to have a combined Public Hearing. Matthews stated staff sent 25 Public Hearing notices to property owners within 200 feet of the subject site and 83 courtesy notices to property owners within 500 feet of the subject site. At this time staff has received four returned notices in opposition, three in favor of the request; this will require a Super Majority vote during City Council. Staff recommends approval of this request based on the conditions listed in the staff backup. Conner questioned if the proposed elevations are for the 50,000 or 80,000 square foot stricture; Matthews stated the applicant can address that question. :l 1 Larry Reichhart, 2405 Mustang Drive, Grapevine, Texas 2 Reichhart stated the elevations are for the 52,000 square foot stricture. Reichhart commended 3 staff on their work during this process. Reichhart stated the reasoning behind not setting up the 4 property campus style is because their layout at this time is campus style and they are trying to 5 get all their employees into one stricture. Reichhart stated in condition seven (7) he would like 6 the word opaque to be removed, and would like condition five (5) to read 50% trees. Bentley 7 questioned if those two conditions are the only ones that he didn't agree with; Reichhart stated 8 that is correct. 9 10 Schaake questioned the dedication of the right -turn lane; Reichhart stated the proposal is in place 11 and Southmont Baptist has agreed to it. However, their congregation vote hasn't taken place yet. 12 Conner questioned if there will be a Texas Department of Transportation issue with the right -turn 13 lane. Reichhart stated no, the drain inlets and fire hydrant will have to be relocated. 14 15 Schaake questioned the removal of trees on the property; Reichhart stated only those that 16 interfere with the constriction of the new stricture. The perimeter trees will stay in place. 17 Approximately 80% of the trees will be preserved. Schaake opened the Public Hearing. 18 19 John Nelson, 2901 Carmel Street, Denton, Texas 20 Nelson stated he lives at the west boundary of the property. Nelson is opposed to this request. 21 The proposed barrier is not adequate, suggests a fence to be proposed on the west side of the 22 property as a barrier. Nelson stated this is spot zoning. 23 24 George Goen, 2900 Pennsylvania Drive, Denton, Texas 25 Goen stated his residence is approximately 35 foot tall, which gives this Commission a good idea 26 as to how tall the proposed stricture is going to be. Goen stated with being friends with the 27 neighborhood it makes it difficult for one to be for or against this request. Goen added the 28 residents would be okay with this request if a perimeter fence were constricted. 29 30 Charles Parker, 832 Southmont Drive, Denton, Texas 31 Parker stated he could be in support of this request if there was a proper boundary fence 32 installed. Parker stated if DATCU installed an eight foot fence with masonry on the west and 33 south sides of the property it would help a lot. Parker stated condition three (3) limits DATCU to 34 not be able to lease the property to anyone else; however, it states to any other professional office 35 uses. Parker stated the condition should specify the property cannot be leased to anyone else for 36 any other uses. 37 38 Virgil Strange, 3001 Carmel Street, Denton, Texas 39 Strange stated he is opposed to both items before this Commission tonight. Strange provided site 40 photos of the view of the subject site from his property. Strange stated there is nothing that will 41 limit the size of the stricture. Strange stated he and Parker received an offer from DATCU to 42 constrict a fence at 50/50 cost. Strange stated this is a residential property and not a commercial 43 site. 44 5 1 Charlie Davis, 2904 Pennsylvania Drive, Denton, Texas 2 Davis stated he is in support of this request. Davis stated staff and the applicant have addressed 3 as much as they would be allowed to with the turn lane on Pennsylvania Drive. If another church 4 purchases this property that contains a school than there could be noise issues with band practice, 5 additional traffic and late hours. 6 7 Melanie Vest, 225 W. Mulberry Street, Denton, Texas 8 Vest stated she is representing DATCU. Vest stated the applicant is proposing to take up 20% of 9 the land; there is not another tenant that would come to the community and take up that little of 10 space on a 10 acre lot. Vest stated DATCU offered a right -turn lane on Teasley Lane; however, 11 that was denied. The offer to go in 50/50 on the wood fence with metal posts was also denied. 12 Currently DATCU has five office buildings on one property which isn't sufficient. 13 14 Michael Nieswiadony, 2113 Pembrooke Place, Denton, Texas 15 Nieswiadony stated he is a member of St. Mark Church and committee. Nieswiadony stated he is 16 in favor of the request. Nieswiadony stated DATCU has been a great citizen in Denton and the 17 proposed stricture is very nice. The applicant is proposing to leave a lot of green space. 18 19 Stephen Coffy, 1104 Southmont Ave, Denton, Texas 20 Coffy stated he is in support of this request. The density proposed is well below what is 21 compared to in other neighborhoods. The flow of traffic should be manageable and less than 22 what is there now. 23 24 Lamar Ball, 2907 Pennsylvania Drive, Denton, Texas 25 Ball stated he is in opposition to this building; this will interfere with the value of his house. Ball 26 stated he spent over two years designing and constricting his house. There will be a traffic issue 27 with this proposed use. Ball stated with the number of employees being added into the area it 28 will take longer to turn off of Pennsylvania. Ball stated the Credit Union is something to take 29 into consideration since they will not be responsible for paying income taxes. 30 31 Bill Palmer, 2901 Pennsylvania Drive, Denton, Texas 32 Palmer stated he is opposed to this request; this is considered spot zoning. This would not be a 33 good asset to the neighborhood. 34 35 Diana Lookabaugh, 2 Highview Circle, Denton, Texas 36 Lookabaugh stated she has lived here since 1977, loves Denton and is in support of DATCU; 37 however, this is the wrong location. There are other churches that are interested in purchasing 38 this property and would be a better to keep the community the same. 39 40 Greg Johnson, 3813 Granada Trail, Denton, Texas 41 Johnson stated he attends St. Mark's Church. Johnson informed the Commission that they need 42 to go off of the facts and not just the emotions when it comes to deciding on this request. 43 Johnson provided a few examples of the facts versus the emotions; some being, the traffic 44 impact, and the neighboring churches that do not have to participate in zoning. Johnson stated if 45 this Commission goes on just the facts alone this item would be approved. 46 L•" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 There was no one else to speak on this item. Schaake stated there were a large number of public hearing cards submitted for this item. Those public hearing cards were read and provided for the record. Sam Slovak, 4905 Argyle Lane, Argyle Texas. Slovak is in support of this request. Fred Pole, 3009 Destin Drive, Denton, Texas. Pole supports DATCU on purchasing the church property. Pole is in support of this item. Michelle Curran, 3000 Montecito, Denton, Texas. Curran is in support of this request. B. George, Del Mar Ct, Denton, Texas. George is in support of this request. Jill Jester, 2106 Stonegate Drive, Denton, Texas. Jester is in favor of this request and DATCU purchasing in Southmont. Hartwell Gilliard, 1600 Lynhurst, Denton, Texas. Gilliard is in support of this request. Gilliard stated this is the best use for the property and will maintain the area. This property is the most attractive area between I -35 and Lillian Miller. David Fowler, 6400 Penina Trail, Denton, Texas. Fowler is in support and stated this rezoning would allow a reduction in traffic overall and a taxable property to the City taxes. Kathy Christoferson, 9301 Malibu Court, Denton, Texas. Christoferson is in support of this request. Christoferson stated DATCU is a well respected business that will improve the concerns that now exist (traffic, no portables, fewer cars). Malcolm Gorrie, 2800 Pennsylvania Drive, Denton, Texas. Gorrie is in support of this request. Gorrie stated this would result in less overall traffic and no portables. Leo Wehkomp, 8112 Firestone, Flower Mound, Texas. Wehkomp is in support of this request. Wehkomp stated the DATCU office would be a good neighbor and good for the City of Denton. Kent Peyton, 4700 Argyle Lane, Denton, Texas. Peyton is in support of this request. Peyton stated as a City we should want DATCU and St. Mark's Church to expand, they have and will continue to be great corporations. Pete Lane, 2204 Stonegate, Denton, Texas. Lane is in support of this request. This would result in less traffic and a more attractive building. Sydney Tarvin, 3940 Parkhaven Drive, Denton, Texas. Tarvin is in support of this request. This is a great opportunity for the City. Kathy Herr, 23 Oak Forrest Circle, Denton, Texas. Herr is in support of this request and the rezoning. 7 1 John George, 700 Riverchase, Denton, Texas. George is in favor of this request and the rezoning. 2 3 Don Praddoch, 3939 Teasley Lane 4249, Denton, Texas. Praddoch is in support of this request. 4 5 Vivian Casper, 3004 Pennsylvania Ct, Denton, Texas. Casper is opposed to this request. Casper 6 is opposed to any change in zoning that does not include a traffic plan. Casper stated the 7 possibility of waiting for a right -turn lane is not an option. Without doing a legitimate traffic 8 study in connection with this rezoning request is inacceptable. 9 10 Weaver McClure, 3100 Carmel, Denton, Texas. McClure is opposed to this request. There are 11 traffic issues and once the zoning is approved it will never be changed. There are other 12 appropriate places to build. 13 14 Jan McClure, 3100 Carmel, Denton, Texas. McClure is opposed to this request. 15 16 Schaake closed the Public Hearing. 17 18 Leal stated that was never requested of himself or any other attorney in the Legal Department. 19 There was a discussion prior to the meeting on whether it was considered spot zoning and that 20 meeting didn't entail the Legal Department. In addition, this is not something that would have 21 been discussed during an Open Session. 22 23 Bentley questioned Charles Parker on his issue with the fence situation. Parker stated his fence is 24 approximately 20 years old; the wood was replaced approximately five years ago. Parker stated 25 if DATCU is going to purchase this property he feels they should constrict the fence at their cost 26 and maintain the fence. Bentley questioned if Parker is requesting an eight foot fence, Parker 27 stated that is correct. Bentley questioned if the fence height is due to security reasons; Parker 28 stated that is correct. Parker stated he would settle with a six foot fence. 29 30 Taylor questioned if the number of employees was removed because of not having the authority 31 to limit that number. Matthews stated the number of employees was limited. Taylor questioned if 32 a parking lot permit would be required if the parking lot needs expanding in the future. Matthews 33 stated that is correct. Schaake questioned the buffer on the western boundary containing trees; 34 Matthews stated it does contain trees. Schaake questioned if they go all the way to the south 35 corner of the property; Matthews stated not at this time; however, staff is recommending that it 36 does. 37 38 Schaake stated the zoning NRM[_J is allowed in residential in order to be a service provided; 39 Matthews stated that is correct. Locldey stated there is a host of services that can be mutually 40 supported. Conner questioned if one request is approved and the other is denied. Schaake stated 41 this Commission is the recommending body to City Council. 42 43 Schaake questioned if DATCU vacates or sales the property within 5 -10 years; Matthews stated 44 staff is recommending the use of the property be limited to DATCU only. If someone else were 45 to try to occupy the space the SUP would have to be amended. 46 LV 1 Reichhart stated DATCU has been a part of Denton for 77 years. If residential were to go onto 2 this site it would be more spread out and more intense to look at rather than one building and one 3 roof line. Reichhart added in regards to the trees they are limited on what they can do based on 4 the old and new trees without over watering or under watering them. Reichhart stated this 5 property is going from a nontaxable entity to a taxable entity. 6 7 Bentley questioned the trees on the corner of the lot that the neighbors feel are not sufficient; 8 Bentley added the trees are going to be a lot of work and they need to be done properly. 9 Reichhart stated that is correct. Bentley questioned if a row of trees could be placed in front of 10 those that won't interfere with watering and growth. Reichhart stated that is possible. 11 12 Schaake stated there is a conflict from the neighborhood; however, this Commission needs to do 13 what is right for the area and it will be sent forward to City Council. Schaake recommended the 14 citizens attend that meeting as well. 15 16 Bentley stated he would like to motion to for approval with staff s recommendations; Reece 17 stated he would like to second. 18 19 Taylor stated he has previously stated his views on this item between DATCU and the 20 neighborhood. There were a lot of issues on this item and some were addressed during the 21 neighborhood meetings. Taylor stated he cannot support this request; it is a commercial business 22 placed in the middle of a residential neighborhood. Conner stated he has never been in favor of 23 the size of the proposed stricture as well as the commercial use being placed in the middle of a 24 residential neighborhood. Schaake stated the zoning is the issue; however, the submitted plans 25 are nice. Schaake added she would like to see more buffering on the property. Bentley stated the 26 ratio of the building versus the property is not large. There is 52% green space which you never 27 see on a commercial space. 28 29 Commissioner Brian Bentley motioned, Commissioner Thom Reece seconded to approve the 30 zoning request with an Overlay based on the recommendations of staff. Motion failed (2 -3). 31 Chairwoman Schaake stated a successful motion was not needed because this is only a 32 recommendation to the City Council. 33 34 35 This presentation was heard during the zoning request, Agenda Item 4B. 36 37 Bentley stated he would like to make a motion to include the following amendments to staffs 38 conditions as well as adding a few additional conditions. Conditions five (5) and seven (7) shall 39 go by the applicants presentation to now require a 50% evergreen ratio as well as the removal of 40 the terms deciduous species and opaque. Condition 10 shall now read: the City of Denton may A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 initiate a review of the SUP at any time a building permit is filed for any expansion that is proposed as part of this application. The following are the recommended new conditions: the open green space shall be maintained at 52% or greater; the property shall be designed and constricted with the site plan submitted; and the SUP nuns with the land into perpetuity and finally the applicant needs to follow staff s recommended plant count for the buffer. Bentley stated the following is a recommendation for City Council: the southwest corner of the land needs to have an additional buffer. Taylor stated he would like to make an amendment to the motion. Taylor stated Condition three (3) the words professional office use should be removed, and left to read as: The use of the property is limited to DATCU's administrative offices only. No ATM or other public banking facilities may be operated from the site and the site may not be leased to any other use. Taylor stated the word parking needs to be added to Condition 10. Bentley stated he would accept both amendments. Leal stated these amendments need to be voted on in order to accept the amendments. Commissioner Devin Taylor motioned, Commissioner Thom Reece seconded to amend the motion. Motion approved (4 -1). Commissioner Brian Bentley motioned, Commissioner Thom Reece seconded to approve the SUP request based on following staff s conditions without amendments: Condition 1. The property is limited to an initial 51,200 square feet with an additional 32,000 square feet allowed. The 32,000 square foot addition is limited to two maximum 16,000 square foot additions for a total building square footage of 83,200 square feet; Condition 2. The maximum height for the building, including any additions is 45 feet; Condition 6. The remaining western property line shall include a 30 -foot wide buffer using existing trees and shrubs; Condition 8. Including any additions proposed as part of this application, the setback requirements for the building are as follows: The minimum front yard setback shall be 300 feet from the eastern property line, the minimum side yard shall be 60 feet from the northern property line, the minimum side yard shall be 130 feet from the southern property line and the minimum rear yard shall be 170 feet from the western property line; and Condition 9. Unless approved by the Urban Forester, existing trees generally located at the southwest corner of the site (highlighted in yellow and identified with the letter "P" on the approved site plan) shall be preserved in accordance with Exhibit 5. The finish grade shall remain as is to prohibit water from pooling in the area and causing stress to existing trees. Also, based on the following staff s conditions with amendments: Condition 3. The use of the property is limited to DATCU's administrative offices only. No ATM or other public banking facilities may be operated from the site and the site may not be leased to any other use; Condition 4. The building shall be designed and constricted in accordance with the building elevations illustrated in Exhibit 6 and detailed in Exhibit 7; the property shall be designed and constricted in accordance with the submitted site plan; Condition S. A 30 -foot wide buffer with 48 large trees, 12 understory trees, and 84 large shrubs shall be provided along the western property line running 385 feet south starting from the north property line, to provide a living screen. The 48 large trees shall be 50% or more evergreen; the 12 understory trees and 84 large shrubs shall be evergreen species. Any existing trees within the 30 -foot buffer may be counted 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 towards this requirement with approval by the Urban Forester; Condition 7. A 30 -foot wide buffer with 51 large trees, 14 understory trees, and 162 large shrubs shall be provided along the entire southern property line, to provide a living screen. The 51 large trees shall be 50% or more evergreen; the 14 understory trees and 162 large shrubs shall be evergreen species. Any existing trees within the 30 -foot buffer may be counted towards this requirement with approval by the Urban Forester; Condition 10. The City of Denton may initiate a review of the SUP at any time a building or parking permit is filed for any expansion that is proposed as part of this application. Finally, based on the following additional conditions: Condition 11. The open green space shall be maintained at 52% or greater and the applicant needs to follow staff s recommended plant count for the buffer; Condition 12. The SUP runs with the land into perpetuity. See line 17 for the motion made by Commissioner Brian Bentley. Motion approved (5 -1). Bentley stated the following is a recommendation for City Council: Recommendation 1. the southwest corner of the land needs to have an additional buffer. 5. FUTURE AGENDA ITEMS: Under Section 551.042 of the Texas Chen Meetings Act, respond to incmiries from the Planning, and Zoning Commission or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the a,enda for an upcomin-, meetin,. There were no Future Agenda Items discussed. Schaake adjourned the meeting at 9:25 p.m. 11 Exhibit 13 Ordinance sAlegal\ our documents \ordinances \13\z13 -0003 ordinance. doe ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM A NEIGHBORHOOD RESIDENTIAL 2 (NR -2) ZONING DISTRICT AND USE CLASSIFICATION TO A NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT AND USE CLASSIFICATION; WITH AN OVERLAY ON APPROXIMATELY 10. 11 ACRES OF LAND. THE PROPERTY IS LOCATED AT THE SOUTHWEST CORNER OF TEASLEY LANE AND PENNSYLVANIA DRIVE, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; AND PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF, SEVERABILITY AND AN EFFECTIVE DATE (Z13- 0003). WHEREAS, Larry Reichhart (Spring Brook Planning Group), on behalf of DATCU Credit Union, has applied for a change in zoning on approximately 10.1 acres of land legally described in Exhibit A and depicted in Exhibit B, attached hereto and incorporated herein by reference (hereinafter, the "Property) from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRMU) zoning district and use classification, subject to an overlay with the following conditions: The NRMU zoning district shall be limited to the following uses: • Professional Office • Community Homes for the Disabled • Gas Wells WHEREAS, on August 28, 2013, the Planning and Zoning Commission held a public hearing as required by law, and at said meeting made a motion to recommend approval of the re- zoning request, which motion failed (2 -3); and WHEREAS, the effect of the failed motion operates as a negative recommendation, which, per Denton Development Code, Section 35.3.4.C.4.b., a three - fourths (3/4) vote of all members of the City Council qualified to vote is required in order for the re- zoning request to be effective; and WHEREAS, additionally, the proposed re- zoning request has been protested in writing by the owners of at least twenty (20) percent of the area within two hundred (200) feet, which per Denton Development Code, Section 35.3.4.C.4.c., a three - fourths (3/4) vote of the City Council qualified to vote is required in order for the re- zoning request to be effective; and WHEREAS, on October 15, 2013, the City Council held a public hearing as required by law, and with a vote (_ -_) that satisfies the three - fourths (3/4) vote requirement, the City Council finds that the change is consistent with the Denton Plan and the Development Code; 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 as true. sAlegal \our documents \ordinances \13\713 -0003 ordinance.doc SECTION 2. The zoning district and use classification for the Property is hereby changed from Neighborhood Residential 2 (NR -2) to Neighborhood Residential Mixed Use (NRMU) and hereby approved for the Property. Notwithstanding the attached real property description, the property being rezoned includes all property to the centerline of all adjacent street rights -of -way SECTION 3. The City's official land use map is amended to show the change in the land use designation. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record - Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY �f r. BY: sAlegal\ our documents \ordinances \13\z13 -0003 ordinwice.doc EXHIBIT A LEGAL DESCRIPTION Denton Catholic Addition, Block A, Lot I s: \legal \our documents \ordinances \13\z13 -0003 ordinance.doc EXHIBIT B LOCATION MAP PasVbIIii(: V AGENDA INFORMATION SHEET AGENDA DATE: October 15, 2013 DEPARTMENT: Planning and Development ACM: John Cabrales, Jr. SUBJECT Hold a public hearing and consider adopting an ordinance of the City of Denton, Texas, approving a Specific Use Permit (SUP) to allow an initial 51,200 square foot office building, with expansions proposed in the future, to include two (2) additions of approximately 16,000 square feet each, for a total of 83,200 square feet within a proposed Neighborhood Residential Mixed Use (NRMU) zoning district classification and use designation. The approximately 10.112 -acre property is located at the southwest corner of Teasley Lane and Pennsylvania Drive, within the City of Denton, Denton County, Texas; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date (S13- 0001). The Planning and Zoning Commission recommends approval, subject to conditions (4 -1). BACKGROUND The applicant (Spring Brook Planning Group) is requesting a Specific Use Permit (SUP) to increase the square footage allowed for an office use within a proposed Neighborhood Residential Mixed Use (NRM[_J) zoning district. Denton Area Teacher's Credit Union ( DATCU) proposes to constrict their corporate headquarters with an initial 51,200 square foot, two -story office building for phase 1, with possible additions in the next 12 to 15 years of 16,000 square feet for phase 2 and 16,000 square feet for phase 3; for a total of 83,200 square feet. DATCU's corporate office will have no commercial banking, drive -up facilities or ATM machines. The property is currently developed with a 10,000 square foot, one -story church (St. Mark Catholic Church) building and accessory strictures. The accessory strictures include eight portable buildings totaling approximately 9,620 square feet. Upon St. Mark vacating the site, all existing strictures will be demolished for constriction of the new DATCU corporate headquarters. The property is currently platted as Denton Catholic Addition, Block A, Lot IA. Prior to the city -wide rezoning in 2002, the property was dually zoned Agricultural District (A) and Single Family -16 (SF -16). In conjunction with the SUP, the applicant has also submitted a rezoning request (Z13 -0003) to rezone the property from a Neighborhood Residential 2 (NR -2) zoning district and use classification to a Neighborhood Residential Mixed Use (NRM[_J) zoning district and use classification. The existing zoning district of NR -2 does not allow `Professional Services and Agenda Information Sheet October 15, 2013 Page 2 Offices;' however, the proposed zoning district of NRMU allows Professional Services and Offices' with a limitation; L(17). The City Council approved a code amendment to the aforementioned limitation on July 16, 2013. Prior to the approval of the amendment, the square footage of professional services and offices was limited: L(17) =Uses are limited to no more than 25, 000 square feet of gross floor area per use, except grocery stores may be larger with approval of a SUP. The limitation was approved to read the following: L(17) =Uses that exceed twenty-five thousand (25, 000) square feet of gross floor area per use require approval of a SUP. The applicant also submitted a variance (V13 -0002) application for the proposed development, to allow direct driveway access onto Teasley Lane. The variance was denied by the Planning and Zoning Commission on May 8, 2013. Three (3) neighborhood meetings were held on the current site of St. Mark's Catholic Church; Tuesday, March 19, 2013, Wednesday, May 23, 2013 and Tuesday, August 13, 2013. The minutes of the meetings are provided as Exhibits 11, 12 and 13 respectively. Issues raised at the neighborhood meetings include the following. Staff's responses to the issues raised are also noted below. However, please see Exhibits 11 -13 for minutes from the neighborhood meetings. • Overlay district; ,Staff recommeYlds an overlay district to ensure that incompatible uses are prohibited Hoirever, several representatives at the neighborhood meeting communicated that they are opposed to the request whether an overlay is proposed or not. • Screening along the southern and western property lines; Several citizens have communicated a desire to have a fence irall along the irestern property line. Several citizens have communicated a desire to have evergreen trees along the 11 esterYl property 1iYle. ,Staff recommends a 30- oot iride vegetative buffer (See Condition J on page 4) using evergreen and deciduous trees to avoid removing existing mature trees. The mix of evergreen and deciduous trees lj)il1 achieve maximum screening, as the combination 11111 provide a larger broader canopy. Existing trees running 385 feet south, starting from the north property line may be counted tolrards this requirement, frith approval by the Urban Forester to ensure that the trees are healthy. H011 evel', staff is recommending that the remaining trees along the irestern property line are preserved It is important to note that a Type C' Buffer is required at this location, which includes a 15-foot planted strip. Staff's recommended buffer exceeds the iridth of the required bi ffer by 15 feet. ,Staff recommeYlds a 30- 11 ide vegetative buffer along the southern property line using evergreen and deciduous trees to provide maximum screening. It has been determined Agenda Information Sheet October 15, 2013 Page 3 that to extend the existing fence would cause trees to be removed, as there are existing trees within the fence line. Additionally, the fence is not the property of the existing church. Existing trees may be counted towards this requirement with approval by the Urban Forester, to ensure that the existing trees are healthy. It is important to note that a Type C B1if fer is required at this location, which includes a 15- oot planted strip. Staff's recommended buffer exceeds the width of the required buffer by I5 feet. • Trees at the southwest corner of the site are deciduous and don't provide adequate screening in the fall months; ,Staff is recommending that the existing, mature glove Of trees, generally located at the southwest corner of the site, are preserved (See Exhibit 5). Planting new trees near this location would be harmful to existing trees. • Size of the proposed building; ,Staff is recommending that the building square footage is limited to 83,200 square feet, with phase I being constructed with 51,200 square with the ability to expand the building a maximum of 2 times to include 16,000 square feet each. Staff also recommends that the building is centered on the 10 -acre site, by regulating the setback requirements (See Condition 8 of this report). • Number of employees; The number of employees directly relates to traffic. Staff is not recommending a limitation on the number of employees. However, staff recommends that the use of the property is limited to DAX(T administrative offices and that no banking facilities may be operated from the site and that the building may not be leased to any other professional office. • Spot Zoning; Spot ZoYiYYig is defined as cleating an island q/ 'a Zoning district isolated fl'om similar zoning districts. Both the existing zoning district of NR -2 and the proposed zoning district Of NRMU are within the category Of Neighborhood Residential zoning districts. The purpose of the NRMUzoning district is to provide supportive services to support the neighborhood • Traffic Congestion. The applicant proposes to construct a right -turn lane from Pennsylvania Drive to Teasley Lane to address traffic concerns. If approved by Southmont Baptist Church, additional right q/-' qy will be dedicated to construct the right -turn lane. Based on the trgf fic generation calculations provided by the applicant, Off -Site street improvements (i.e. turn lanes, pavement widening, pavement reconstruction, signal construction, installation of pavement markings, or equitable participation in the cost of any of the listed improvements) are not required by this development. Residents raised concerns regarding Southmont Baptist Church allowing parents of the nearby elementary school to use their parking lot for pick up and drop off of student. Agenda Information Sheet October 15, 2013 Page 4 This causes traffic congestion on Pennsylvania Drive. Residents tivere concerned as to Why the City of Denton allows this. It has been determined that if both parties are agreeable to the situation, as Senn private parties, the city cannot intervene. Staff sent 25 certified notices of the public hearing to property owners within two hundred (200) feet of the subject property and 83 courtesy notices to residents /property owners within five hundred (500) feet of the property. As of this writing, staff has received two (2) notices in favor of the request and three (3) notices in opposition to the request from property owners within 200 feet of the site. PRIOR ACTION May 8, 2013 Planning and Zoning Commission Meeting (V13 -0002) Denied (4/3) July 24, 2013 Planning and Zoning Commission Meeting (Z13 -0003) Postponed to a date certain of August 28, 2013 July 24, 2013 Planning and Zoning Commission meeting (S13 -0001) Postponed to a date certain of August 28, 2013) August 28, 2013 Planning and Zoning Commission meeting (Z13 -0003) Motion of approval, which motion failed to carry (2 -3). Recommendation for Denial August 28, 2013 Planning and Zoning Commission meeting (S13 -0001) Recommendation of approval, subject to conditions (4 -1) OPTIONS 1. Approve as submitted. 2. Approve subject to conditions. 3. Deny. 4. Postpone consideration. 5. Table item. RECOMMENDATION The Planning and Zoning Commission recommends APPROVAL of 513 -0001, subject to the following conditions: Agenda Information Sheet October 15, 2013 Page 5 1. The property is limited to an initial 51,200 square feet with an additional 32,000 square feet allowed. The 32,000 square foot addition is limited to two maximum 16,000 square foot additions for a total building square footage of 83,200 square feet. 2. The maximum height for the building, including any additions is 45 feet. 3. The use of the property is limited to DATCU's administrative offices only. No ATM or other public banking facilities may be operated from the site and the site may not be leased to any other use. 4. The building shall be designed and constricted in accordance with the building elevations illustrated in Exhibit 7 and detailed in Exhibit 8. 5. The property shall be designed and constricted in accordance with the site plan illustrated as Exhibit B. 6. A 30 -foot wide buffer with 48 large trees, 12 understory trees, and 84 large shrubs shall be provided along the western property line running 385 feet south starting from the north property line, to provide an living screen. The 48 large trees shall be 50% or more evergreen species; the 12 understory trees and 84 large shrubs shall be a evergreen species. Any existing trees within the 30 -foot buffer may be counted towards this requirement with approval by the Urban Forester. 7. The remaining western property line shall include a 30 -foot wide buffer using existing trees and shrubs. 8. A 30 -foot wide buffer with 51 large trees, 14 understory trees, and 162 large shrubs shall be provided along the entire southern property line, to provide a living screen. The 51 large trees shall be 50% or more evergreen species; the 14 understory trees and 162 large shrubs shall be evergreen species. Any existing trees within the 30 -foot buffer may be counted towards this requirement with approval by the Urban Forester. 9. Including any additions proposed as part of this application, the setback requirements for the building are as follows: • The minimum front yard setback shall be 300 feet from the eastern property line • The minimum side yard shall be 60 feet from the northern property line • The minimum side yard shall be 130 feet from the southern property line • The minimum rear yard shall be 170 feet from the western property line. 10. Unless approved by the Urban Forester, existing trees generally located at the southwest corner of the site (highlighted in yellow, circled and identified with the letter "P" on the site plan, illustrated as Exhibit 6) shall be preserve. The finish grade shall remain as is to prohibit water from pooling in the area and causing stress to existing trees. Agenda Information Sheet October 15, 2013 Page 6 11. The green space on site shall be maintained at 52% or greater. 12. The SUP shall run with the land in perpetuity. 13. The City of Denton may initiate a review of the SUP at any time a building permit or parking lot permit is filed for any expansion that is proposed as part of this application. The Development Review Committee (DRC) recommends APPROVAL of 513 -0001, subject to condition. FXUTUTTC I. Staff Analysis 2. Location /Aerial Map 3. Existing Zoning Map 4. Proposed Zoning Map 5. Future Land Use Map 6. Site Plan 7. Building Elevations 8. Building Elevation Details 9. Notification Map & Responses 10. Applicant's Letter of Intent 11. March 19, 2013 Neighborhood Meeting Minutes 12. May 23, 2013 Neighborhood Meeting Minutes 13. August 13, 2013 Neighborhood Meeting Minutes 14. Site Photos 15. August 28, 2013 Planning and Zoning Commission Meeting Minutes 16. Ordinance Respectfully submitted: Brian Locldey, AICP, CPM Planning and Development, Director Prepared by: Johnna M. Matthews Senior Planner Exhibit I CITY OF DENTON DEVELOPMENT REVIEW COMMITTEE STAFF REPORT P &Z Date: August 28, 2013 TYPE: Specific Use Permit CC Date: October 15, 2013 PROJECT #: S13 -0001 Project Number: S13 -0001, DATCU SUP Request: A Specific Use Permit to allow an increase in square footage allowed for an office use. The applicant proposes an initial 51,200 square foot, two -story office building, with two (2) future additions of approximately 16,000 square feet each in 12 to 15 years, for a total building square footage of 83,200 square feet. Applicant: Larry Reichhart Spring Brook Planning Group 1608 E. Windsor Denton, TX 76209 Property Joseph P. Delaney, Bishop Owner: 800 W. Loop 288 S Fort Worth. TX 76108 Location: The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. Size: 10.112 acres +/- Existing Zoning Neighborhood Residential 2 (NR -2) Designation: Proposed Zoning Neighborhood Residential Mixed Use (NRMU) Designation: Existing/Proposed Existing Land Use /Infill Compatibility Future Land Use: Case Planner: Johnna M. Matthews DRC Recommendation: The Development Review Committee (DRC) recommends APPROVAL of S13 -0001, subject to conditions. Summary of Analysis Based on a recent code amendment, which was approved by the City Council on July 16, 2013, the Denton Development Code (Subchapter 35.5.2.2) requires approval of a Specific Use Permit (SUP) for a Professional Service/ Office if the use exceeds 25,000 square feet of gross floor area per lot. Ultimately, the applicant proposes an 83,200 square foot building to be used as DATCU's corporate headquarters. The criteria for approval of a SUP is provided in Subchapter 35.6.4 of the Denton Development Code, which states that SUPS shall be issued only if all of the following conditions have been met: 1. That the specific use will be compatible with and not injurious to the use and enjoyment of other property nor significantly diminish or impair property values within the immediate vicinity; The f )lloiring conditions are recommended to better integrate this use into surrounding neighborhood and provide that this development is compatible irith and not injurious to the use and enjoyment of adjacent properties: • The proposed restrictions within the NRM(I zoning district; • The enhanced landscape bi ffers recommended along the irestern and southern property lines; • The setback requirements recommended by staff,• • The additional conditions regarding the use of the building as irell as a limitation on the number and square footage of additions; • The preservation of existing trees within the southwest corner of the site; 2. That the establishment of the specific use will not impede the normal and orderly development and improvement of surrounding vacant property; The proposed office building on the 10 -acre site 11111 not impede the normal and orderly development and improvement of surrounding vacant property. According to City records, the three (3) unplatted tracts located southwest of the site are currently undeveloped, and is nearly 200 feet away from the proposed office building. The tract at the southeast corner of the site is also vacant. 3. That adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided; Adequate utilities, access roads and drainage facilities are available to support the proposed development. Additionally, the applicant proposes to construct a right-turn lane from Pennsylvania Drive to Teasley Lane, if approved by Southtvont Baptist Church, to dedicate the right-of- -way. 4. The design, location and arrangement of all driveways and parking spaces provides for the safe and convenient movement of vehicular and pedestrian traffic without adversely affecting the general public or adjacent developments; Access to the site will be from an existing driveway on Pennsylvania Drive and the applicant proposes to maintain most of the parking spaces on- sites. Any new parking will be internal to the site and 11111 have no negative impact on the general pnbllc or adjacent developments. 5. That adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration; The only anticipated noise, dust and or vibration 11111 be during Construction. Typical Construction prevention measures 11 1// be iltl/ized to minimize the impact. 6. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and No lighting is proposed that irollld disturb or adversely affect neighboring properties. The Denton Development Code requires that all fighting far non- residential developments may [lot measure more than one -half (12) foot caYldle of rlhlm /Ylatd()YI at the property line, lights shall be shielded to prevent 11p11 a1'd diffusion and areas designated far pedestrian use shall provide a minimum of one foot candle of illumination. 7. That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property. The proposed development requires a Type C bi ffer along the irestern and southern property lines. A Type C Bif#er includes a fifteen (15)- pla[Tted stri that includes a combination q/'6 evelgi'ee[l a[Td deciduous trees a[Td 2J shi'llbs pei' 100 tYYleai' feet Asa condition of approval f()r this application staff recommends the preservation of trees within the southwest corner of the site as irell as an alternative b11ffei' along the irestern and southern property lines; adjacent to existing single family uses. Please seethe recommended conditions on page 3-4 of this report. Findings of Fact 1. The request is far the approval cif a ,Specific Use Permit (SUP) to allow an initial 51,200 square foot, two -story office building, with the ability to expand in the future for a total building square footage q/'83,200 square feet in two phases to include 16,000 square feet each; for DATCU's corporate headquarters. In conjunction with the request, the applicant also seeks to rezone the approximately 10 -acre site from NR -2 to NRMU. 2. A recent text amendment limits the square footage of the proposed use to 25, 000 square feet. Additional square footage is permissible with approval of a ,SUP. 3. The applicant submitted a variance (V13 -0002) to allow direct driveway access onto Teasley Lane. The valiance was denied by the Planning and Zoning Commission on May 23, 2013 (4-3). 4. The site is platted as Denton Catholic Addition, Block A, Lot IA and is currently developed with a church and associated accessory structures. 5. Prior to the 2002 city -wide rezoning, the site was dually zoned Agricultural District (A) and ,Single Family 16 (SF -16). 6 The Site is located within an Existing Infill Compatibility Future Land Use designation. A comprehensive plan amendment is not required far the rezoning request. 7. City -wide, theme are approximately 7,423.66 acmes located within a NR -2 zoning district and approximately 1,13-1.28 acmes are zoned NRMU. 8. Adjacent zoning districts include Neighborhood Residential 3 (NR -3) to the north; Neighborhood Residential 2 (NR -2) to the south; NR -2 to the west and NR -2 to the east. 9. Land uses within 14 mile radius of the site include approximately 183 acres; of which .314 acres are developed with commercial uses; 40.5 acres are developed with institutional rises, including religions rises; 3.61acres are developed with parks; 137.58 acres are developed with residential uses; .457 acres are developed with transportation related uses; and .9 2 acres remain undeveloped 10. There are no Environmentally ,Sensitive Areas (ESA) on site. 11. Water is available by connecting to the existing 6 -inch main on Pennsylvania Drive. There is also an existing 16 -inch main along the north side of Teasley Lane. However, the 16 -inch main is not available far tapping. Water capacity is adequate. 12. ,Seller is available via existing 8 -inch gravity main along Teasley Lane and existing 8 -inch gravity main along Pennsylvania Drive. There is an existing 12 -inch force main along Teasley Lane, which is not available for tapping. ,Sewer capacity is adequate. 13. The capacities of the existing water distribution and sewer collection systems in the area are not sufficient to serve the `highest and best use' of the proposed zoning district of NRMGV, irhich irould be considered `Thdtlfamlly" at 30 tArelling units per acre. However, these systems do have sufficient capacities to serve the proposed and future improvements associated ij)ith the project that the applicant describes 14. Per the Mobility Plan, Teasley Lane Is classified as a Primary Major Arterial and Is a TXDOT owned and maintained street. Pennsylvania Drive is classified as a Main ,Street Collector and Is considered an Improved perimeter street. 15. Coordination with TXDOT's widening plans of Teasley Lane is required 16 A TXDOT permit is required for any construction within Teasley Lane right-of- -way. However, due to access currently existing off of Pennsylvania Drive, driveway access onto Teasley Lane is not permitted The applicant applied for a variance (V13 -0002) to allow access onto Teasley Lane. The Planning and Zoning Commission denied the variance (4 -3) on May 23, 2013. 17. Current pavement iridth of Pennsylvania Drive Is 30 feet. The development Is required to analyze the Intersection of Pennsylvania Drive and Teasley Lane to determine the need for any street Improvements, (i.e. turn lanes). 18. There is off ite drainage that is required to be conveyed through this site under fdly developed conditions In accordance irith the City of Denton Drainage C'rlteria Manual. 19. A public drainage easement Is required to be dedicated to accommodate the storm system by this development. On -sate detention may be required 20. Electric service irill be provided by Denton Municipal Electric (DME). Development Review Committee The Development Review Committee finds that the request IS CONSISTENT with the general character of the area, with the specific conditions recommended by staff, and IS CONSISTENT with the Denton Plan. Based on the findings -of -fact, the Development Review Committee (DRC) recommends APPROVAL of S13 -0001, subject to conditions. GENERAL NOTES -TOTE: Approval of this request shall riot constitute a inaiver or variance from arty applicable development requirement unless specifically rioted irz the conditions of approval arid consistent frith the Derztorz Development Code. -TOTE: All irritterz conmrerzts made irz the application arzd subsequerztsubmissiorzs (?f'irzfornzatiorz made during the application revieir process, irizich are orz file frith the 00) ofDerztorz, shall be considered to be birzdirzg upon the applicant, provided such comments are riot at variance frith the Derztorz Plarz, Derztorz Development Code or other development regulations irz eff "ect at the time of development. Surrounding Zoning Designations and Current Land Use Activity: Northwest: North: Northeast: Neighborhood Residential 2 (NR -2) Neighborhood Residential 3 (NR -3) Neighborhood Residential 3 (NR -3) (Church) (Single Family) (Single Family) West: East: Neighborhood Residential 2 (NR -2) 1 4 Neighborhood Residential 2 (NR -2) (Single Family) A - I (Church) Southwest: South: Southeast: Neighborhood Residential 2 (NR -2) Neighborhood Residential 2 (NR -2) Neighborhood Residential 3 (NR -3) (Single Famih-/Undeveloped Land) (Single Famih-/Undeveloped Land) (Single Family-) Nource: ( it)) (?f Denton ( ieographical brformation Nylvteni and site visit by ( it)) staff Summary of Surrounding Zoning Designations and Current Land Use Activity: Land uses within 1/4 mile radius of the site include approximately 183 acres; of which .314 acres are developed with commercial uses; 40.5 acres are developed with institutional uses, including religious uses; 3.6lacres are developed with parks; 137.58 acres are developed with residential uses; .457 acres are developed with transportation related uses; and .92 acres remain undeveloped. Comprehensive Plan: The site is located within an "Existing /Infill Compatibility" Future Land Use designation. According to the Denton Plan, within established residential areas, new development should respond to existing development with compatible land uses, patterns and design standards. The plan recommends that existing neighborhoods within the city be vigorously protected and preserved. Housing that is compatible with the existing density, neighborhood service and commercial land uses is allowed. Nearest Fire and EMS Station 1;otrree: 00) of Denton ( ;LS, Fire. Department, alid E_11S Water and Wastewater Demand and Capacity: A. Estimated Demand: Subject Property Estimated Im pact Analysis 10.1 acres f Proposed Demand Adequate to Serve (Yes or No) Permitted Densit-v N/A N/A Potable Water Consumption at 18 (peak) Yes peak hour (GPM) Wastewater Generation at peak 15 (peak) Yes hour (GPM) B. Available Capacity: The anticipated water demand for this development is approximately 18 gallons per minute (GPM) and the anticipated wastewater demand is 15 GPM. Water is available from the existing 6 -inch main along Pennsylvania Drive, provided the property is not subdivided. The existing 16- inch main along the north side of Teasley Drive is not available for tapping. Sewer is available via the existing 8 -inch gravity main along Teasley Lane and the existing fl- inch gravity main along Pennsylvania Drive. The existing 12 -inch force main along Teasley Lane is not available for tapping. The capacities of the existing water distribution and sewer collection systems in the area are not sufficient to serve the `highest and best use' in the proposed zoning district of NRM[_J, which is "Multifamily," at 30 dwelling units per acre. However, these systems do have sufficient capacities to serve the proposed and future improvements associated with the project. C. CIP Planned Improvements: None Roadways /Transportation Network: A. Estimated Demand: Subject Property Estimated Im pact Analysis Adequate to Serve (Yes 10.1 acres f Proposed Demand or No Permitted Density N/A Yes Average Annual Daily Trips (AADT) 570 Yes PM Peak Hour Trips 86 Yes B. Available Capacity: Teasley Lane is a TXDOT owned and maintained roadway. Currently Teasley Lane is a 4 -lane divided roadway. TXDOT is planning to widen Teasley Lane to a 6 -lane divided roadway. Current access to the property is off Pennsylvania Drive. Pennsylvania Drive is classified as an improved perimeter street. C. Roadway Conditions: Teasley Lane is two -lane asphalt roadway with borrow ditches. Current pavement width of Pennsylvania Drive is 30 -ft. The development is required to analyze the intersection of Pennsylvania and Teasley to determine the need for any street improvements (ie. turn lanes). D. CIP Planned Improvements: None Environmental Conditions: There are no Environmentally Sensitive Areas (ESA) on site. Electric: Electric service will be provided by Denton Municipal Electric (DME). Exhibit 2 Location /Aerial Map Exhibit 3 Existing Zoning Map '41 NR-2 NR-3 SMOKERISE CHAPEL .................................. . 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J L 4,1 +'w u:lrava G ':v w»rr 1,uS�G1 .& ,ce f ,G lnl "v 8 ultr r*� train FAST EL[,VAilnKM ,�.ru .wgirtM rdBIV %� �P.13W7 CsPS bi .'.ktmoE JGI 51 t'iMt itp�' � , »'9WV WGYF IuI`f,.d"td :9ii� &b u1 "OdrJ °'redk wl+xa w. -v, W ll6 '3B1e uO Dr i%f m +b9 sna 1 "Ho 1;1'q Fff, ,y tlWH 4i V 141rr& msi�m rw,SUM r,W X*1 4,66» w"m"i Ol V `k"lli, f 10 "I WV r1 11, 0 RYA .r rv,1n" e.wrm ,,"V oy74�} t:,�ay a1M1m'@ rorr �K7" r „ „� WPM ufhi Us .............. ........... d<IIbAnG% G,56'M Slk Ar9 51. q <,"AI�IrV, MI” d!?.% C�' rA sx Iwq ,61 r q,� IM 2,49E SP 3sw 942 w 4.V."V'Q Exhibit 9 Notification Map & Responses NOTICE OF PUBLIC HEARING S13.0001 The Planning and Zoning Commission of the City of Denton Willi hold a public hearing on, Wednesday, July 24, 2013 and consider making a recommendation to City Colonel] regarding a Specific Use Pernnft (SUP) oil approximately 101 acres of land for IDATCU's corporate office. The property is located at the southwest cornier of Teasley Lane and Pennsylvania Drive, The piJbIlic herilring will start at 6:301 p,tl in the City Council Chambers of City Kull located at 215 E. McKinney Street, Denton, Texas, Because you own pl within lWo hundred (200) feel of floss &Ubject properly, the PIanstill and Zoning Commill would like to hel Nw you toot about this request and ii you to illoirldthe pubffc hoolling. Please, in order for your opirl to, be taken Info aCCOL111t, return this form with your cominliefits, prior to the date of the public heanng, (This in no Way prol you from aflondi and pailicil in the pubfic heanng.) You may fax it to the number located at the bottom or mail it to Ow address bellow at drop R off irt•persoll: Planning and IDevelopmernt Department 221 N. Elm, ST Denton, Texas 76201 Attu: Johnna Matthews, Project Manager These forms are used to catculate the percentage of landowners that support and oppose the request. Tile Commission is informed of the percent of responses in supporl and In opposition. Please circle one: Irn favor of recluest ) Neutral to request Opposed to request Reasons for Oplaaaftlrrr rvmc - ------ DATCU has been all outstanding corporate citizen in Denton for many years. Its bildidings in Denton and North Texas are exemplary and I trust DATCil continue this — I export tile traffic franc tbis now building will be better than the current traffic caused by the Catholic Church. i have lived three houses frarn tile Site since 1994. Traffic can be — minhnized with a cooperAve attitude between the (Ity and DATCU. .. . ......... Printed Na 0 Molding Address, I I If City, State Zip: Telephone Nurnbor: ------ Ernall Address: .......... 6'hlll45'��"hrg(e Ap What is tile physical address of the prop erty Within 200 feet A'L-��( CITY OF DENTON, 'TEXAS CITY HALL WEST - DENTON, TEXAS 70201 - 940.340.8541 • (F) 940,349.7707 :"t PU' lquic"', NOTICE OF PUBLIC HEARING S13-0001 The Planning and Zoning Commission of the City of Denton will hold a pubfic hearing on Wednesday, July 24, 2013 and consider making a recornmendalion to City Council regarding a Specific Use Permit (SUP) on approximalely 10.1 acres of land for DA•icus, corporate office. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public herring will start at 6:30 p.m, in the City Council Chambers of City Hall located at 215 E McKinney Wool, Denton, Texas. Bociiu8e you own pmperty within two hunched (200) food of We 8vbjecl pwpody, the Manning and Zoning ConyYM3sion would tike to hwe how you feel about diis request and invitas you to allend 11w public hearkig. Please, in order for Your opinion to be taken into account, return this forni with your cominients prior to Hie date of the public hearing. f This hr no way probibits you from aftenditV and paiftip)tinq #7 the public heafing.) You may fax it to the number located at tine bottom or mail it to the address below Or drop it off in-personr Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Atfiv Johnna Matthews, Project Manager These forms are used to calcultate the percentage of landowners that support and oppose the request. The Corninission is informed of the percent of responses in support and in opposition, Please circle one, In favor of request Nouhal to request Opposed to request -7 Reasons for r 63p6s itrw. 7' )�,l f 5o, 14— CA- -04C IU7' (c<> Pdriled klarne: "'t's ro -71 VE Malting Address. City, State Zlpa Telephone Number of of & -- 5(,6' T3 1 lF_rmail Address: I—Fo Q S:r1vTY1-V--K (9,-t(; What is the physical ad!dress of the property vdOijn 200 feet: SW JA 9�� CITY OF DENTON, TEXAS ciiyr•mfi, wt',ST , DENTON, TEXAS 76201 • WVA98641 • (F)940,349-"07 n'W) d "9/ Nlk,"' NOTICE OF PUBLIC HEARING S13-0001 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding a Specific Use Permit (SUP) on approximately 10.1 acres of land for DATCU's corporate office, The property is located at the southwest comer of Teasley Lane and P)nsylvaniia Drive. The pulAc hearing willll, start at 6:30 pmi, in the City Councit Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own propeny wilhin two hundred (200) feet of the sublect property, the Planning and Zoning Comrnlsskva would like to how how you feel about this iequasl and invites yNi to attend Ow pubfic heafing, Please, in order for your opinion to be takon into account, return this form with your coninients prior to the date of the pubfic hearing. (TMs in no way prohibils yo" from attending and pailkipating in Vv pubfic hearing,) You may fax it to the ourriber located at the bottom or mail it to the address below or drop it off in-persom Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attm Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request- Thu Commission is informc'id of the percent of responses in support and in apposillon. Please circle one: In favor of request Neulral to request Reasons for Opposition: Signature: (A, J , lam -71 Printo( dlwy)A� V � iel�l.A.�A Mailing Address; City, Slate Zip: 22 Telephone Nu bor, Email Add rocs, VIle, -0d' Z e. Z. What is the physical add moss of the property Wthin 200 feet, CITYOFDENTON, TEXAS CHYHALLWLSt • DENION, 1EXAS (Q01 - 940,149JRAI • (F)940.349,7707 NOTICE OF PUBLIC HEARING 13 -0001 The Planning and Zonirueg Cmnirniwsion of the Cdty of Dont'on will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation mendfation to City Council regarding a Sptedfic„ Use Permit (SUP) on approxinnately 10.11 acres of land for DATCU's corporate office. The property its located at the southwest corner of Teasley Lane and Pennsylvania Dive. The Public hearing watt start at 0,:30 p.m. in the City Council Chaarrtaeas of City Hall located at 216 E, McKinney Street„ Denton, "texas. Becaarso you own prrope0y within hive hundred (200) foot of the sub)oct propaedy, the Pkinni ng and Zoning Convn,sionn wo udd fihe to hear how you faet about th�is request and dnvilvs you tea attond fhe public hearing Ptcase, in ord4or for your option to bye taken into acoount, return dhis form with yoadr comments prior to the date of the public hearing, (This in no way )uohiNts you from attending and psavficiprating to the public hearing,) your may fax it to the number located at the bottorn or mnaul it to dine address below or drop it off'dn- person: Planning and Development Department 221 N. Elm .ST ent'on, Texas 76201 Attn. yohnna Matthews, Project Manager These forums are used to caalcu9ate the percentage of landowners that support and oppose the request The Connntssion ds informed of the percent of responses in support in opposidlon. Please clyde one: In favor of red nest Neutral to _ d . request , O pos d to redpuuos -t., Reasons for Oppost4lon, 2 Printed Namoe e�k . C" twtaiVdonpp Adlcdross: ,r'�-�.. ,��� try ^. , r`.,wd r . , a City, State Zip: Telephone Number Gn: " i L( ap d r _ .............. Email Address: What is die physical address of the property watnin 200 feet:.r �a � � �� 4 A c �a �': ^�✓ % CITY OFD AfTON, TEKAS CITYPtALP WEST • DENTON,1'F.:XAS A5201 940,3498541 (F)940.3493701 aarnua:wrsz uvaa��:� NOTICE OF PUBLIC HEARING 813 -0001 The Planning and Zoning Commission of the City of Denton will hold a public hearing on Wednesday, July 24, 2013 and consider making a recommendation to City Council regarding a Specific Use Permit (SUP) on approximately 10.1 acres of land for DATCU's corporate office. The property is located at the southwest corner of Teasley Lane and Pennsylvania Drive. The public hearing will start at 6:30 p.m. in the City Council Chambers of City Hall located at 215 E. McKinney Street, Denton, Texas. Because you own property within two hundred (200) feet of the subject prgpeny, the Planning and Zoning Commission would tike to hear how you feet about this request and invites you to attend the public hearing. Please, in order for your opinion to be taken into account, return this form with your comments prior to the date of the public hearing. (This in no way prohibits you from eftending and participaling in the public hearing.) You may fax it to the number located at the bottom or mail It to the address below or drop it off in- person: Planning and Development Department 221 N. Elm ST Denton, Texas 76201 Attn: Johnna Matthews, Project Manager These forms are used to calculate the percentage of landowners that support and oppose the request. The Commission is informed of the percent of responses in support and in opposition. Please circle one: In favor of request Neutral to request Dpposed to request Reasons for Oppositiow Signature: Printed Name: 'R � J' 'l* IN 111 t� y N Marling Address: A 90 t C, a L 01 V L City, State Zip: .S1 Arftita,, `i ;t 71.;LPS_ Telephone Number: Email Address: What is the physical address of the property within 200 feet: tA,,( He) 4ill 4nj CARAV —kr• S7,7 CITY OF OENTON, TEXAS CITY Hart wrasr DENrgN, TEXAS 76201 • 940.349.8541 - (F) 94o.349.7707 CIO P &ZA!"b e Exhibit 10 Applicant's Letter of Intent A FeNimov 115, 2,013 M r &W (,wJ4#y, A IC OWsw dPbMing mrW DooWamimi W Dwft� TX TIM11 240 5 Mwftmg� WJv*/dvvV*v**. T*xm*7,W44 144M,54540, 1817-329,414,53 (Fax) » « . r 0pout* ?y 2»? *40¥O?§« » "» d2> #, d<y' 14, Oft ¥ / . \y§2? \ \ . \ \f2 � <"»y. � o � f# « < < \ "W? <« O»� ¥\- ,& # «<.*k» » f 2» :«:yw » »?, v ?< y\ w- w»«x :<: pmomsmis ?»£»m12 :?» .. » :A<< «�5 m > >« Exhibit 11 March 19, 2013 Neighborhood Meeting Minutes It NISP a 11, r o TU, Us, kil w u MA, i, Srinkm FU m m Ckod I Ftrxrw, Laffy,,RuieluW � CC, l5&flfAX'0Qllm,, WIJFICIII�Ul rw" Mm"'J'(20 X1,3, Aw"j NkfaOlkyll Km uPf 1,1 4,41rg awm,aidV (Jwm-Vitww, n, ATCRI I-TAmad or. bar 0467mmim cin CIAT4,11 whythey ne.,Pjl: m-, m� arafaby" I WO ff,M�JA U Wy MK"O 1,0� pCW`I'IRVpILCm, 'Nil m, Pmf kmftl by gym" am, ram, 17y Sjvmg �,mmltl VC u ,I,", 1580!rr., yj Alm Ol U OR llhwvw,mxoo,miy, fammmm a"jiw&4 wn mmmw uows, ue,%* U wl ki,mm- Ph'- rW,'S'm"we and ('04rie, m repdrkwd by EA, TIU, a's ,lbullmed U, Dos, b(If x110 usavia's ktrAficd, lubtraltaud w, i, weud via Me ovuelay 11"homp, wa %,alina dwmmmwwo Ir*'mr, tho, i"w-fof qhf, ftwowmi rwVRm*('Wt', Ow-pliamb.141y, A a, �d#wl arvIlkifficlo lfw"�J woul"ll &IONW6r,", cirm 11'.4 11w j ww"I r".4 �A[�,.mum k.11"w'y (L o wm v, 11 R, , w V,�, m "Itaied, fu t 11,10JO ^Mfv Igll � I'q U t 0 wddrm.4 ar Id d"Al *y wdrd Imlikz 6 iq ftjo� 715, 'p�mws IGX flflore- Tim 7.Cfv, 14,Miljj"TdV,.dn,wa�,,m l!N,169ri,,Lv�ontr,,,,FLPrim,rr,,,,-rr ,�,,irtl m^ ,ID,,&Tf4, yo- W WJU IJ,w wbo it 'XI011wo as pw0wov,04-41V lflk**,bq 4'mcl jo Aawnlrwd at 00 iPow , w ,Bp lforw I'Al �tufflc "w" 'ou domyV afkarKm iffv� slwhw OvA oIlhc'p �404XJW—d W0,11 Mki Tout Lwe", Rm mAp" 'r pmt Oml yd war malmavil-q berwow, I ie, imm wiwq rmftmarixud b -dfk (inickfirl Sarn, Hm.str ekw-cff trmc� has Ckawl Me wpal Ire ANhwhoch is Amt Me tmp, Tho i+m'tiwmmmw w�wGmwmt Nr& mja ii immm DA TC U In iffic mu& O"W" im"A w1 CIW' fs Vmmm ww lxA*u o col w#Wmar6w v, P t5ylp, Awkifix,apy, Dr ATC.V, i./, In lcww#kr, f Ow" PtKwA'Awi "TO "t" LW40, *td*m ;y with a * few, wr Imablan ro, In marUm Oraffw fkm 0,W1,100, *'V Ermgmd fA41 a, Li"O, incammuoi dai hlfwwx mgumm'sts And or,,Am,vWmK§ t%A, DAJ(,'J Walk" Emqsmii, wfidw 'A", Imm, , Sts" L& J%MSQG[ 5L�iwuering afand I'D' W"m Iff. 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M5 All 1'*#W'CpIkMJYh 03MA ififfIchOw1h AmKflololr 1,10 (ham Plo'charAW, rfx%x ui ijift, irmorf, 'o, ow TI.A4,041, ;s"um,ty Ans, "a, V), rm"Icid, Rawa ham wffw,a al pq ft 14 ITT d t4fc Gloft, fflthricma,*"a TEIWaW gioc", lr�,) DATIC"t) luN, to ipwo ptfv,'�iye "m Vz)NRfc, ol�' ,Jmcxf sr,o I")Af'I,"CUl "'m �111 f liovov rwq*Iw3f d'fwvl, vWxxg,"00''I VVA It* ll coolwoom Obco idso a d"Imommif ww wonw* vow"A no"It"), 1p"ir, o"', w (ma"'sm,911MVII tICA iA OX"Aid 1XIMPI Il mi v"von'l ko qm4ixiaol *4 O'u'Am ffow jA14r,4wW alrik", km N W, cA,6, k* wkxtot 4 110 lu, Napwkt 0 OP9,fp �,, Exhibit 12 May 23, 2013 Neighborhood Meeting Minutes Sli III scmmi hmeviz Neiighkwbcocl mer, iwig, mav 23s 201;3 I he folbwlirg ramni werp pmjI hy reJidenir, af Hie &oii N*IghtAnrhood dii a the, redevi:lcipmentv.4 Vw'Su Mculks Chvmd site w10-iia Denvin Alrea Teachem Cn.,dk UinIv,,-#, (DAT7"1J) odiministimative [Yullidiling, I. ( Rn a 7-11 be deuelnped on The siu- lift Is riezoried? !2. if R h. by I he rciewinig &nd th#-we I& nc) III IrriilAllkon w 1i IWO, 3. '1 CIIU VOEI FAR 01.3 coniceirims ki now n i' 1. R.esponw: At li ni manna jxdAk heminp. Yuu -wil be mn.41ded ii i nee ling Police bekire ii Kmninvnig, invid I m and ( i4v Famid I nertinig", cx-iciifir' S. 1111 aie i,ovidHIc'wri iYI: the %I JIP fcdlowed areal enoorred I�fiv I I b* C'Ay' Respmse� 11 hey i.v e d Hvl('ewey.] during N.Widifig mcl raft ell 040fls I rUl"x1foof II Gacle I: 6. The shie Noonclemthut thiedetrimiI I�miilcl will ImRic)onne u Pis lightly a md, a Ibrrmed ng gricAmi id foFinlosquiI mare. The deienbon 1paind and area vmrouildirir, diloiiAd hwor 5)pH�IlWe5 d4lwf' vinowed, and rmitini!4y Rd sf'-Yoww IND t r'd 7, Vol, i'a I �'s Ow I c"In the mmoigitoliog, * ea? RLa,�spori�c A lvw-, 9. W 1111 DATO III Ila,ay ta wes ? Responsp: Yes 9. 11 low, miliny ernplicypes? T13 ro sii. may Iiiicrea-�e to 160 errilloinyiees in I(rj 1.2 yeare 110. Why Is diiis II io impuAwnt Liu DAFCU RCSPO'115e P11-iLe gild IOCLIUPUIn 1, 1, C ; -1) wM lhave a rn'-O.Ifg krie 1 q. rlajgAW r I jhuic'h W discuss trdfl:ka lmpircivelvw'nt.', wm Rimponse,, NiAed 12. 11 he (" ilifouIld pinstpnime ccmsideratlan of thisappIlilicallinm unfflwlerthe maefirtgwith " afuthrcnnnnf Bapr t Chlunch Kespcnse Nom id 13, IExteinrsiwe Iandsirap ng OmUld be �nisitdlflcd on jjvimielxer to lbuff4v properli fi-Din dbuttirqr, iknidenitia% kiL,e IResponsic: Neted 1, 4, what afe 9be bolm oif ovegMOn", R"eqlwv;e, (011nev0v� ,N; rr) to 6 Orn, I 5. An 8 foot miasanr viail 7,1hould be consfructed lPhe pertlii-neter ofth'.. piropertV 11j. Illh e pro rry, should be ImAtedmt ,MR i I AdaiiniiftlratiIve, afficesoirdy wltli ii hankingoperaflonis, telllers„ or diiji,le 11,1I and w umliv, wers flid.vuIld be perr'i-nitted. Rewnse-. Nolied 17, Inipfivie initzrseuion vj haim dediiUltid Iv h. turn, ded1cated Lhiough, aii diediLzLed FbBlft MIA Ialhi 18. k Rni wp irFstrirr prkiing "PairturP4 Rpispinnse: "l' ' 110. ('an Anwllr( chI'lich develop Mthcwi� linflcatkmiii�'R eqmri&e, ','1 "alst o-vtply w1ch AH [)[lc rQLq0e,menii. and wy uthoi Clit-Y pil"OVIIIAU11, reqUil, Ell IA,, CA 'Aandald. 20. If I?q'iIIII-e itmaii saileii plulke 1.0, niwnitim Iralfflc, finam 9.3m inn I pn') Reiprinise: Noted Exhibit 13 August 13, 2013 Neighborhood Meeting Minutes S�Ilsvirfvmly Nfill DAI CILI N' ;n Mcaulg, Tldarhtw', 14"0' "a w, tilklovIyaticn I'm rht re,,Yw t px,powcd b,,y 11 A, Thil ,jItOcc"Runc ul dac jxd:lk licmmW btv all 11'ac Plarwnwj -xind Zoeraq ,P211 Im '0, 1 he n✓ti"' i"mrrniy 0 lile A O101 0 VIR 11 — n 9111d SPH h,pir a 1 11, "wh"'I'll?, III m 1100 01111k r1iw -I o.k ml; —rn q, 111'.41,1147, o"t N'R,-,„ 111,II1 llht zanw,,,� 0 X'RNII mn�d lt'x"PhO,Intcl whar, 111fil ol lJ�ly u,mmq d11 "1110! iil MlLt t%phukd "LlIg 00cil"Ja7lOr', r "I a I I(Aff rVOIdd h KVt it .61FAI lIR-.ft(k.d lc) I Om Ady , :1 10 140 15) nmilph"ell IVIKell I�Kev( WHII mir", F'ha" ll Hie prr�pmmd wallklfj tl alil halk h*em lervill h rr, IIIE 011ar11 , IR"Al"'111 aflowd-pe b,dfie iahxpeinl ghe "alluth •detiM Ov vamoy, 1TIl vicmPrIl daterytan pord, It ls Inorr of a vil, de,;,iremul Fkekhhart, �,,tav,,Iff 06 nf Ow rmaff con,411ori 15, w� per, rn,Ard, mm.W hke to Im- mhhn ta allcrkv [ar ain ndyimm Thr pffh-m-Frir 0,,nImn, m 11),mgIr nurrAmij of OmAv;, RIP w rorp,IN* f"OlW 10( Ilw, Wirt', ONAWYog"11�0 PIH,11p, RICO lk, rvo rmissarr w wjidllh pm-mcnisd nr vilolannird ma"he,we", que'rfinal thi IrMnmq Orl err hn � In 1R6,R,',Y Of Ally Norlplay 'Ildinct, Appinnmirnalrpdl"y R Idurre, In bFurwr. 7," I'm"ll 011 wo orr.,IA dptnpgl am Od 4F, rp hamp af Ill lrvq�oflpl nfin the hik,,,k on theli pricipwirty All l tlhuems wrlcjkaln 4"'ghdi"Ifl! lencle'. 0,16 wollblid lmevlem, Aw I I'DIP0 l�A pedemn'arp 7,afflF: thimfy"JI 6 hlaicik ltil.'Olffatr h,,Fm A fl- r,Ir"fjj tjd.,,Kywvww mnrl,lirpa� l k" 111— I'all11 N fi. — 11 , II:Idll "Ind llht�f,* MCI arow p�'aw1h'N"11 hKAM 0)11? lh'd�'r , rq ITI'le rlrno± , H0 woullk Ilikr" w rela,I? YI �W l 11-ml, wfolkp"W 4HC,?PV9 lhesW) mlI pmimprrly Ijil nvjgh1xuhrq;d pHlIvrm5,; ,Fihiv `ip'wrrrrkw r', wWlll ,,I mI K. —41,1 fl-rp I-goinihneii nio —miII-1 the in—p-Ill 1— q(O1*wjk,)qI, rhils Iq, d,/,I oO 'SrXcx 1Iormpj, WPH ge4"'aq N, N, l go 0110 �HOJWUWfd lu", 21arliny" qwr,')� lay, 41 Ilif u,PLHJ. RIP 5,Alcj,rrA Umil PIr III I'alviv OrllE�v hNkw p I-, vl j(" frwr ll pl 111 d 1,01 ra'pr Fill lrvlt, 411111;1 lvrOimfprrpm 011,41 ag11ry 1p 1hp way, I hID 111,5 too ewpomm,,we of i0 Oevp of prapely to hR &vlldedl I FAc lr�ImAdeplld dots, Them h is prqwsed, 4 h Q r, c P11 17a 1� Me f"'fl, a f�, h, P looKry 'If we & rIfIx a A�I� a DA � C � 9 Ia o,�K c u 1 11 le th ' & p�° i*. Remwlil"RlF wN &'ALM11111wo"w'G Irmod Flik s, WO Il g tv ltlk^ ItollL$'dwill No A111 lkm' lollol'EM 101 O'k, AbludIdo'g, 11*ll Ake lixVRINK 11]'Rildfhew kirI 'd iElIN11 0111 Ik*SI1l'1! wake il'i! spiale, Thl Aw addiflarW I,vllies I:Vat sh,,,ulid be Yov4ed ttmuzh hdFmdIrIF ,crleenmq, tof mm7,cl the rue' hbor 7,k comer9r.,, Exhibit 14 Site Photos Photos taken at the northeast corner of the site Photos taken along Pennsylvania Drive looking west at the site. Photo taken along Pennsylvania Drive looking at existing parking Photo taken at the southeast corner of the site looking north towards Teasley Lane. Photos taken at the rear of the building looking west at existing single family home. Photos taken on the west side of the property looking east at the rear of the existing church building Photo taken along Teasley Lane looking south at the site Exhibit 15 August 28, 2013 Planning and Zoning Commission Meeting Minutes 1 Minutes 2 Planning and Zoning Commission 3 August 28, 2013 4 5 After determining that a quorum was present, the Planning and Zoning Commission convened a 6 Work Session on Wednesday, August 28, 2013 at 5:00 p.m. in the City Council Work Session 7 Room at City Hall, 215 E. McKinney Street, Denton, Texas at which time the following items 8 were considered: 9 10 PRESENT: Chair Jean Schaake. Commissioners: Brian Bentley, Thom Reece, Frank 11 Conner, Jim Strange and Devin Taylor. 12 13 ABSENT: None. 14 15 STAFF: Athenia Green, Brian Locldey, John Cabrales, Aaron Leal, Earl Escobar, 16 P.S. Arora, Johnna Matthews, Ron Menguita, Michelle Berry, Nona 17 Elaine Muncie and Angie Kralik. 18 19 WORK SESS ON 20 Chair Schaake called the Work Session to order at 5:05 p.m. 1. Clarification of auenda items listed in the ReLular Session auenda for this meetinu. and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Bentley questioned if condition seven (7) should state a minimum of 26 evergreen trees, in the event the applicant would want to put in more evergreen trees. Matthews stated that is correct, the applicant requested that as well. Schaake questioned if the proposed trees will blend with the existing trees; Matthews stated that is correct. Taylor stated the effort and detail work put into the landscape plans are great, as well as the buffer. Taylor questioned the overall input of the citizens and their feelings during the neighborhood meeting; Locldey stated it was basically the same as the public hearing. They expressed their feelings on the development and the aspect of the proposed development. Conner questioned if any effort has been made to reduce the size of the stricture; Locldey stated that was not discussed with the owner based on their previous conversations with the stricture being designed to meet their overall needs for today and the future and allow room for growth. Schaake stated the Public Hearings will be heard together and voted on separately. 3. old a discussion concernin, recommended -,eneral oblivation capital improvements. Arora Arora provided a presentation on the Central Business District and Downtown Implementation Plan. Taylor questioned if the information provided includes box culverts or concrete channelizing. Arora stated that is correct. Locldey informed the Commission the information provided in the backup are examples of projects to be funded under the bonds discussed at the two prior Work Sessions. Arora stated staff would like to request what is included in the five year Capital Improvement Plan or drainage projects. Schaake questioned if those are indicated on the list provided; Arora stated that is correct. Schaake questioned if Arora is looking for recommendations at this time; Arora stated that is correct. Locldey stated the recommendations can be provided in a memorandum and forwarded by this Commission. 4. Hold a discussion and .ive staff direction regarding the consolidation of the Central Business District boundary and the Downtown Implementation Plan boundary and recommendations on the handling of that would fall outside of these former boundaries. (Brian Locldev) Locldey stated this item will return during the September 11, 2013 meeting as a Work Session item and Public Hearing. Locldey added if this Commission wants to table the item at that time then it can be heard at the next meeting. Commissioners agreed. Bentley requested in the backup materials a copy of the two maps overlaying one another. Locldey agreed. 2 5. Receive a report hold a discussion and -,ive staff direction concernin' amendin' Section 35.13.7.13.2. of the Denton Development Code regarding, landscape maintenance standards. (Nona E. Muncie) 2 Locldey stated this item will return during the September 11, 2013 meeting as a Work Session 3 item and Public Hearing. Locldey added if this Commission wants to table the item at that time 4 then it can be heard at the next meeting. Commissioners agreed. 6 Schaake closed the Work Session at 6:35 p.m. 7 8 REGULAR MEETING 10 The Planning and Zoning Commission convened a Regular Meeting of the Planning and Zoning 11 Commission of the City of Denton, Texas which was held on Wednesday, August 28, 2013 and 12 began at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time 13 the following items were considered: 14 Schaake called the Regular Meeting to order at 6:47 p.m. 15 PLEDGE OF ALLEGIANCE: 16 A. U.S. Flay= 17 W 19 B. Texas Fla- "Honor the Texas Flag - I pled,e alle,iance to thee, Texas one state under God, one and indivisible." 2. CONSIDER APPROVAL OF TIJE PLANNING AND ZONING COMMISSION MINUTES FOR: A. August 14, 2013 20 21 Commissioner Brian Bentley motioned, Commissioner Frank Conner seconded to approve the 22 minutes. Motion approved (6 -0). 23 24 CONSENT AGENDA: Staff recommends approval of the followin, items because they meet the requirements of the Denton Development Code. Approval of the Consent Agenda includes staff recommendations for approvals and authorizes staff to Eroceed. The Planning and Zoning Commission has reviewed the applications and has had an opportunity to raise cmestions revardin, the items prior to consideration: A. Consider and take appropriate action on request for a Final Replat to create two lots. The subject property is located at 1115 Duncan Street, further described as 3.16 acres of land in the S.C. Hiram Survey, Abstract No. 616, in the City of Denton, Denton County, Texas and all of Lot 4, Block A of the Shady Oaks Industrial Park Addition recorded in Volume 2, Page 55, Denton County Texas and subsequently renamed "Expressway Industrial Park" by 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 re- dedication in Volume 492, Page 54, deed records, Denton County, Texas. (FR13 -0019, Michele Berry) Commissioner Thom Reece motioned, Commissioner Frank Conner seconded to approve the Consent Agenda. Motion approved (6 -0). 4. PUBLIC A NGS: Schaake stated staff is requesting to continue this item to the November 6, 2013 meeting. Strange recused himself from this item. Matthews stated the property is zoned Neighborhood Residential -2 and is proposed for Neighborhood Residential Mixed Use. There were 25 Public Hearing notices sent to property owners within 200 feet of the subject site and 83 courtesy notices sent to property owners within 500 feet of the subject site. At this time 2 were returned in favor and I neutral to this request. Matthews provided the most current site plan. The walking trail has been removed and there will be no pond on the property that contains standing water. Matthews stated staff recommends approval based on the conditions listed in the staff backup. Matthews presented for the Specific Use Permit, Agenda Item 4C in order to have a combined Public Hearing. Matthews stated staff sent 25 Public Hearing notices to property owners within 200 feet of the subject site and 83 courtesy notices to property owners within 500 feet of the subject site. At this time staff has received four returned notices in opposition, three in favor of the request; this will require a Super Majority vote during City Council. Staff recommends approval of this request based on the conditions listed in the staff backup. Conner questioned if the proposed elevations are for the 50,000 or 80,000 square foot stricture; Matthews stated the applicant can address that question. :l 1 Larry Reichhart, 2405 Mustang Drive, Grapevine, Texas 2 Reichhart stated the elevations are for the 52,000 square foot stricture. Reichhart commended 3 staff on their work during this process. Reichhart stated the reasoning behind not setting up the 4 property campus style is because their layout at this time is campus style and they are trying to 5 get all their employees into one stricture. Reichhart stated in condition seven (7) he would like 6 the word opaque to be removed, and would like condition five (5) to read 50% trees. Bentley 7 questioned if those two conditions are the only ones that he didn't agree with; Reichhart stated 8 that is correct. 9 10 Schaake questioned the dedication of the right -turn lane; Reichhart stated the proposal is in place 11 and Southmont Baptist has agreed to it. However, their congregation vote hasn't taken place yet. 12 Conner questioned if there will be a Texas Department of Transportation issue with the right -turn 13 lane. Reichhart stated no, the drain inlets and fire hydrant will have to be relocated. 14 15 Schaake questioned the removal of trees on the property; Reichhart stated only those that 16 interfere with the constriction of the new stricture. The perimeter trees will stay in place. 17 Approximately 80% of the trees will be preserved. Schaake opened the Public Hearing. 18 19 John Nelson, 2901 Carmel Street, Denton, Texas 20 Nelson stated he lives at the west boundary of the property. Nelson is opposed to this request. 21 The proposed barrier is not adequate, suggests a fence to be proposed on the west side of the 22 property as a barrier. Nelson stated this is spot zoning. 23 24 George Goen, 2900 Pennsylvania Drive, Denton, Texas 25 Goen stated his residence is approximately 35 foot tall, which gives this Commission a good idea 26 as to how tall the proposed stricture is going to be. Goen stated with being friends with the 27 neighborhood it makes it difficult for one to be for or against this request. Goen added the 28 residents would be okay with this request if a perimeter fence were constricted. 29 30 Charles Parker, 832 Southmont Drive, Denton, Texas 31 Parker stated he could be in support of this request if there was a proper boundary fence 32 installed. Parker stated if DATCU installed an eight foot fence with masonry on the west and 33 south sides of the property it would help a lot. Parker stated condition three (3) limits DATCU to 34 not be able to lease the property to anyone else; however, it states to any other professional office 35 uses. Parker stated the condition should specify the property cannot be leased to anyone else for 36 any other uses. 37 38 Virgil Strange, 3001 Carmel Street, Denton, Texas 39 Strange stated he is opposed to both items before this Commission tonight. Strange provided site 40 photos of the view of the subject site from his property. Strange stated there is nothing that will 41 limit the size of the stricture. Strange stated he and Parker received an offer from DATCU to 42 constrict a fence at 50/50 cost. Strange stated this is a residential property and not a commercial 43 site. 44 5 1 Charlie Davis, 2904 Pennsylvania Drive, Denton, Texas 2 Davis stated he is in support of this request. Davis stated staff and the applicant have addressed 3 as much as they would be allowed to with the turn lane on Pennsylvania Drive. If another church 4 purchases this property that contains a school than there could be noise issues with band practice, 5 additional traffic and late hours. 6 7 Melanie Vest, 225 W. Mulberry Street, Denton, Texas 8 Vest stated she is representing DATCU. Vest stated the applicant is proposing to take up 20% of 9 the land; there is not another tenant that would come to the community and take up that little of 10 space on a 10 acre lot. Vest stated DATCU offered a right -turn lane on Teasley Lane; however, 11 that was denied. The offer to go in 50/50 on the wood fence with metal posts was also denied. 12 Currently DATCU has five office buildings on one property which isn't sufficient. 13 14 Michael Nieswiadony, 2113 Pembrooke Place, Denton, Texas 15 Nieswiadony stated he is a member of St. Mark Church and committee. Nieswiadony stated he is 16 in favor of the request. Nieswiadony stated DATCU has been a great citizen in Denton and the 17 proposed stricture is very nice. The applicant is proposing to leave a lot of green space. 18 19 Stephen Coffy, 1104 Southmont Ave, Denton, Texas 20 Coffy stated he is in support of this request. The density proposed is well below what is 21 compared to in other neighborhoods. The flow of traffic should be manageable and less than 22 what is there now. 23 24 Lamar Ball, 2907 Pennsylvania Drive, Denton, Texas 25 Ball stated he is in opposition to this building; this will interfere with the value of his house. Ball 26 stated he spent over two years designing and constricting his house. There will be a traffic issue 27 with this proposed use. Ball stated with the number of employees being added into the area it 28 will take longer to turn off of Pennsylvania. Ball stated the Credit Union is something to take 29 into consideration since they will not be responsible for paying income taxes. 30 31 Bill Palmer, 2901 Pennsylvania Drive, Denton, Texas 32 Palmer stated he is opposed to this request; this is considered spot zoning. This would not be a 33 good asset to the neighborhood. 34 35 Diana Lookabaugh, 2 Highview Circle, Denton, Texas 36 Lookabaugh stated she has lived here since 1977, loves Denton and is in support of DATCU; 37 however, this is the wrong location. There are other churches that are interested in purchasing 38 this property and would be a better to keep the community the same. 39 40 Greg Johnson, 3813 Granada Trail, Denton, Texas 41 Johnson stated he attends St. Mark's Church. Johnson informed the Commission that they need 42 to go off of the facts and not just the emotions when it comes to deciding on this request. 43 Johnson provided a few examples of the facts versus the emotions; some being, the traffic 44 impact, and the neighboring churches that do not have to participate in zoning. Johnson stated if 45 this Commission goes on just the facts alone this item would be approved. 46 L•" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 There was no one else to speak on this item. Schaake stated there were a large number of public hearing cards submitted for this item. Those public hearing cards were read and provided for the record. Sam Slovak, 4905 Argyle Lane, Argyle Texas. Slovak is in support of this request. Fred Pole, 3009 Destin Drive, Denton, Texas. Pole supports DATCU on purchasing the church property. Pole is in support of this item. Michelle Curran, 3000 Montecito, Denton, Texas. Curran is in support of this request. B. George, Del Mar Ct, Denton, Texas. George is in support of this request. Jill Jester, 2106 Stonegate Drive, Denton, Texas. Jester is in favor of this request and DATCU purchasing in Southmont. Hartwell Gilliard, 1600 Lynhurst, Denton, Texas. Gilliard is in support of this request. Gilliard stated this is the best use for the property and will maintain the area. This property is the most attractive area between I -35 and Lillian Miller. David Fowler, 6400 Penina Trail, Denton, Texas. Fowler is in support and stated this rezoning would allow a reduction in traffic overall and a taxable property to the City taxes. Kathy Christoferson, 9301 Malibu Court, Denton, Texas. Christoferson is in support of this request. Christoferson stated DATCU is a well respected business that will improve the concerns that now exist (traffic, no portables, fewer cars). Malcolm Gorrie, 2800 Pennsylvania Drive, Denton, Texas. Gorrie is in support of this request. Gorrie stated this would result in less overall traffic and no portables. Leo Wehkomp, 8112 Firestone, Flower Mound, Texas. Wehkomp is in support of this request. Wehkomp stated the DATCU office would be a good neighbor and good for the City of Denton. Kent Peyton, 4700 Argyle Lane, Denton, Texas. Peyton is in support of this request. Peyton stated as a City we should want DATCU and St. Mark's Church to expand, they have and will continue to be great corporations. Pete Lane, 2204 Stonegate, Denton, Texas. Lane is in support of this request. This would result in less traffic and a more attractive building. Sydney Tarvin, 3940 Parkhaven Drive, Denton, Texas. Tarvin is in support of this request. This is a great opportunity for the City. Kathy Herr, 23 Oak Forrest Circle, Denton, Texas. Herr is in support of this request and the rezoning. 7 1 John George, 700 Riverchase, Denton, Texas. George is in favor of this request and the rezoning. 2 3 Don Praddoch, 3939 Teasley Lane 4249, Denton, Texas. Praddoch is in support of this request. 4 5 Vivian Casper, 3004 Pennsylvania Ct, Denton, Texas. Casper is opposed to this request. Casper 6 is opposed to any change in zoning that does not include a traffic plan. Casper stated the 7 possibility of waiting for a right -turn lane is not an option. Without doing a legitimate traffic 8 study in connection with this rezoning request is inacceptable. 9 10 Weaver McClure, 3100 Carmel, Denton, Texas. McClure is opposed to this request. There are 11 traffic issues and once the zoning is approved it will never be changed. There are other 12 appropriate places to build. 13 14 Jan McClure, 3100 Carmel, Denton, Texas. McClure is opposed to this request. 15 16 Schaake closed the Public Hearing. 17 18 Leal stated that was never requested of himself or any other attorney in the Legal Department. 19 There was a discussion prior to the meeting on whether it was considered spot zoning and that 20 meeting didn't entail the Legal Department. In addition, this is not something that would have 21 been discussed during an Open Session. 22 23 Bentley questioned Charles Parker on his issue with the fence situation. Parker stated his fence is 24 approximately 20 years old; the wood was replaced approximately five years ago. Parker stated 25 if DATCU is going to purchase this property he feels they should constrict the fence at their cost 26 and maintain the fence. Bentley questioned if Parker is requesting an eight foot fence, Parker 27 stated that is correct. Bentley questioned if the fence height is due to security reasons; Parker 28 stated that is correct. Parker stated he would settle with a six foot fence. 29 30 Taylor questioned if the number of employees was removed because of not having the authority 31 to limit that number. Matthews stated the number of employees was limited. Taylor questioned if 32 a parking lot permit would be required if the parking lot needs expanding in the future. Matthews 33 stated that is correct. Schaake questioned the buffer on the western boundary containing trees; 34 Matthews stated it does contain trees. Schaake questioned if they go all the way to the south 35 corner of the property; Matthews stated not at this time; however, staff is recommending that it 36 does. 37 38 Schaake stated the zoning NRM[_J is allowed in residential in order to be a service provided; 39 Matthews stated that is correct. Locldey stated there is a host of services that can be mutually 40 supported. Conner questioned if one request is approved and the other is denied. Schaake stated 41 this Commission is the recommending body to City Council. 42 43 Schaake questioned if DATCU vacates or sales the property within 5 -10 years; Matthews stated 44 staff is recommending the use of the property be limited to DATCU only. If someone else were 45 to try to occupy the space the SUP would have to be amended. 46 LV 1 Reichhart stated DATCU has been a part of Denton for 77 years. If residential were to go onto 2 this site it would be more spread out and more intense to look at rather than one building and one 3 roof line. Reichhart added in regards to the trees they are limited on what they can do based on 4 the old and new trees without over watering or under watering them. Reichhart stated this 5 property is going from a nontaxable entity to a taxable entity. 6 7 Bentley questioned the trees on the corner of the lot that the neighbors feel are not sufficient; 8 Bentley added the trees are going to be a lot of work and they need to be done properly. 9 Reichhart stated that is correct. Bentley questioned if a row of trees could be placed in front of 10 those that won't interfere with watering and growth. Reichhart stated that is possible. 11 12 Schaake stated there is a conflict from the neighborhood; however, this Commission needs to do 13 what is right for the area and it will be sent forward to City Council. Schaake recommended the 14 citizens attend that meeting as well. 15 16 Bentley stated he would like to motion to for approval with staff s recommendations; Reece 17 stated he would like to second. 18 19 Taylor stated he has previously stated his views on this item between DATCU and the 20 neighborhood. There were a lot of issues on this item and some were addressed during the 21 neighborhood meetings. Taylor stated he cannot support this request; it is a commercial business 22 placed in the middle of a residential neighborhood. Conner stated he has never been in favor of 23 the size of the proposed stricture as well as the commercial use being placed in the middle of a 24 residential neighborhood. Schaake stated the zoning is the issue; however, the submitted plans 25 are nice. Schaake added she would like to see more buffering on the property. Bentley stated the 26 ratio of the building versus the property is not large. There is 52% green space which you never 27 see on a commercial space. 28 29 Commissioner Brian Bentley motioned, Commissioner Thom Reece seconded to approve the 30 zoning request with an Overlay based on the recommendations of staff. Motion failed (2 -3). 31 Chairwoman Schaake stated a successful motion was not needed because this is only a 32 recommendation to the City Council. 33 34 35 This presentation was heard during the zoning request, Agenda Item 4B. 36 37 Bentley stated he would like to make a motion to include the following amendments to staffs 38 conditions as well as adding a few additional conditions. Conditions five (5) and seven (7) shall 39 go by the applicants presentation to now require a 50% evergreen ratio as well as the removal of 40 the terms deciduous species and opaque. Condition 10 shall now read: the City of Denton may A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 initiate a review of the SUP at any time a building permit is filed for any expansion that is proposed as part of this application. The following are the recommended new conditions: the open green space shall be maintained at 52% or greater; the property shall be designed and constricted with the site plan submitted; and the SUP nuns with the land into perpetuity and finally the applicant needs to follow staff s recommended plant count for the buffer. Bentley stated the following is a recommendation for City Council: the southwest corner of the land needs to have an additional buffer. Taylor stated he would like to make an amendment to the motion. Taylor stated Condition three (3) the words professional office use should be removed, and left to read as: The use of the property is limited to DATCU's administrative offices only. No ATM or other public banking facilities may be operated from the site and the site may not be leased to any other use. Taylor stated the word parking needs to be added to Condition 10. Bentley stated he would accept both amendments. Leal stated these amendments need to be voted on in order to accept the amendments. Commissioner Devin Taylor motioned, Commissioner Thom Reece seconded to amend the motion. Motion approved (4 -1). Commissioner Brian Bentley motioned, Commissioner Thom Reece seconded to approve the SUP request based on following staff s conditions without amendments: Condition 1. The property is limited to an initial 51,200 square feet with an additional 32,000 square feet allowed. The 32,000 square foot addition is limited to two maximum 16,000 square foot additions for a total building square footage of 83,200 square feet; Condition 2. The maximum height for the building, including any additions is 45 feet; Condition 6. The remaining western property line shall include a 30 -foot wide buffer using existing trees and shrubs; Condition 8. Including any additions proposed as part of this application, the setback requirements for the building are as follows: The minimum front yard setback shall be 300 feet from the eastern property line, the minimum side yard shall be 60 feet from the northern property line, the minimum side yard shall be 130 feet from the southern property line and the minimum rear yard shall be 170 feet from the western property line; and Condition 9. Unless approved by the Urban Forester, existing trees generally located at the southwest corner of the site (highlighted in yellow and identified with the letter "P" on the approved site plan) shall be preserved in accordance with Exhibit 5. The finish grade shall remain as is to prohibit water from pooling in the area and causing stress to existing trees. Also, based on the following staff s conditions with amendments: Condition 3. The use of the property is limited to DATCU's administrative offices only. No ATM or other public banking facilities may be operated from the site and the site may not be leased to any other use; Condition 4. The building shall be designed and constricted in accordance with the building elevations illustrated in Exhibit 6 and detailed in Exhibit 7; the property shall be designed and constricted in accordance with the submitted site plan; Condition S. A 30 -foot wide buffer with 48 large trees, 12 understory trees, and 84 large shrubs shall be provided along the western property line running 385 feet south starting from the north property line, to provide a living screen. The 48 large trees shall be 50% or more evergreen; the 12 understory trees and 84 large shrubs shall be evergreen species. Any existing trees within the 30 -foot buffer may be counted 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 towards this requirement with approval by the Urban Forester; Condition 7. A 30 -foot wide buffer with 51 large trees, 14 understory trees, and 162 large shrubs shall be provided along the entire southern property line, to provide a living screen. The 51 large trees shall be 50% or more evergreen; the 14 understory trees and 162 large shrubs shall be evergreen species. Any existing trees within the 30 -foot buffer may be counted towards this requirement with approval by the Urban Forester; Condition 10. The City of Denton may initiate a review of the SUP at any time a building or parking permit is filed for any expansion that is proposed as part of this application. Finally, based on the following additional conditions: Condition 11. The open green space shall be maintained at 52% or greater and the applicant needs to follow staff s recommended plant count for the buffer; Condition 12. The SUP runs with the land into perpetuity. See line 17 for the motion made by Commissioner Brian Bentley. Motion approved (5 -1). Bentley stated the following is a recommendation for City Council: Recommendation 1. the southwest corner of the land needs to have an additional buffer. 5. FUTURE AGENDA ITEMS: Under Section 551.042 of the Texas Chen Meetings Act, respond to incmiries from the Planning, and Zoning Commission or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the a,enda for an upcomin-, meetin,. There were no Future Agenda Items discussed. Schaake adjourned the meeting at 9:25 p.m. 11 Exhibit 16 s:AlegalAour documents \ordinances \13 \s13- 0001.doc Ordinance ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SPECIFIC USE PERMIT TO ALLOW AN INI'T'IAL 51,200 SQUARE FOOT OFFICE BUILDING, WITH EXPANSIONS PROPOSED IN THE FUTURE, TO INCLUDE TWO (2) ADDITIONS OF APPROXIMATELY 16,000 SQUARE FEET EACH, FOR A TOTAL OF 83,200 SQUARE FEET, WITHIN A NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION. THE APPROXIMATELY 10.112 -ACRE PROPERTY IS LOCATED AT THE SOUTHWEST CORNER OF TEASLEY LANE AND PENNSYLVANIA DRIVE, WITHIN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (S13-0001) WHEREAS, Larry Reichhart (Spring Brook Planning Group), on behalf of DATCU Credit Union, has applied for a Specific Use Permit to allow an initial 51,200 square foot office building, with two (2) expansions proposed in the future to include 16,000 square feet each, on approximately 10.1 acres of land within a Neighborhood Residential Mixed Use (NRMU) zoning classification and use designation legally described in Exhibit "A ", attached hereto and incorporated herein by reference (hereinafter, the "Property "); and WHEREAS, on August 28, 2013, the Planning and Zoning Commission concluded a public hearing as required by law, and recommended approval of the requested Specific Use Permit (4/1), subject to conditions; and WHEREAS, the City Council finds that the request is consistent with the Denton Plan and the Denton Development Code; 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 and found to be true. SECTION 2. The Specific Use Permit (SUP) to allow a 51,200 square foot office building, with expansion proposed in the future, to include two (2) additions of approximately 16,000 square feet each, for a total of 83,200 square feet on the Property is hereby approved, subject to the following conditions: 1. The property is limited to an initial 51,200 square feet with an additional 32,000 square feet allowed. The 32,000 square foot addition is limited to two maximum 16,000 square foot additions for a total building square footage of 83,200 square feet; Olegal \our documents \ordinances \13 \s 13- 0001.doc 2. The maximum height for the building, including any additions is 45 feet; 3. The use of the property is limited to DATCU's administrative offices only. No ATM or other public banking facilities may be operated from the site and the site may not be leased to any other use; 4. The building shall be designed and constructed in accordance with the building elevations illustrated in Exhibit C and detailed in Exhibit D; 5. The property shall be designed and constructed in accordance with the site plan illustrated as Exhibit B. 6. A 30 -foot wide buffer with 48 large trees, 12 understory trees, and 84 large shrubs shall be provided along the western property line running 385 feet south starting from the north property line, to provide an living screen. The 48 large trees shall be 50% or more evergreen species; the 12 understory trees and 84 large shrubs shall be a evergreen species. Any existing trees within the 30 -foot buffer may be counted towards this requirement with approval by the Urban Forester.. 7. The remaining western property line shall include a 30 -foot wide buffer using existing trees and shrubs; 8. A 30 -foot wide buffer with 51 large trees, 14 understory trees, and 162 large shrubs shall be provided along the entire southern property line, to provide a living screen. The 51 large trees shall be a combination of evergreen and deciduous species, with a minimum of 50% evergreen; the 14 understory trees and 162 large shrubs shall be a minimum of 50% evergreen species. Any existing trees within the 30 -foot buffer may be counted towards this requirement with approval by the Urban Forester; 9. Including any additions proposed as part of this application, the setback requirements for the building are as follows: • The minimum front yard setback shall be 300 feet from the eastern property line • The minimum side yard shall be 60 feet from the northern property line • The minimum side yard shall be 130 feet from the southern property line • The minimum rear yard shall be 170 feet from the western property line, 10. Unless approved by the Urban Forester, existing trees generally located at the southwest corner of the site (highlighted in yellow, circled and identified with the letter "P" on the site plan, illustrated as Exhibit B) shall be preserved. The finish grade shall remain as is to prohibit water from pooling in the area and causing stress to existing trees; 11. The green space on site shall be maintained at 52% or greater.; sAlegal \our documents \ordinances \13 \s 13- 0001.doc 12. The SUP shall run with the land in perpetuity; and 13. The City of Denton may initiate a review of the SUP at any time a building permit or parking lot permit is filed for any expansion that is proposed as part of this application. 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 affect the validity of the 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. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record - 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 , 2013 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY s: \IegaRour documents \ordinances \13\s 13- 0001.doe Exhibit A Legal Description Denton Catholic Addition, Block A, Lot IA s:\1cga1\OUr docwnents\ordinances\1 3\s 13-000 1. doc Exhibit B Site Plan .f 1-Mill A, i all e p: SUP SITE PLAN DATCU Credit Union spring rook Corpo rate Headquarters Iq .121,,Aon, I .).:Texas i i ji� I .f 1-Mill A, i all e p: SUP SITE PLAN DATCU Credit Union spring rook Corpo rate Headquarters Iq .121,,Aon, I .).:Texas HIP. Pa . .f 1-Mill A, i all e p: SUP SITE PLAN DATCU Credit Union spring rook Corpo rate Headquarters Iq .121,,Aon, I .).:Texas sAlegal\our documents \ordinances \13 \s 13- 0001.doc Exhibit D Building Elevation Details I I i I t g f Fk I 1 1 i i I I 1 i i s:\Iegal\OLlr doCL111lellls\ordinances\13\s 13-000 1. doc 2 s: \legal \our documents \ordinances \13 \s 13- 0001.doc i j t fr w i- 11 o t i jar 5 ! d i 7, m' ! � i �i I f 3 i s:Alegal \our documents \ordinances \l3 \s13- 000I.doc