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August 04, 2015 Agenda
totut!ANltl DENTON Tuesday, August 4, 2015 City of Denton Meeting Agenda City Council City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com 1:00 PM Work Session Room & Council Chambers After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, August 4, 2015 at 1:00 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. Citizen Comments on Consent Auenda 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 August 4, 2015. 3. Work Session Reports A. ID 15 -625 Receive a report, hold a discussion, and give staff direction regarding nominations to the City's Boards and Commissions. Attachments: Exhibit 1 - Nominations Sheet B. DCA14 -0009 Hold a discussion on complementary amendments to the Denton Development L Code; specifically Subchapters 5, 16, and 22, relating to Gas Well Drilling and Production, Definitions, and Procedures; in order to reconcile Denton's gas well regulations with House Bill 40 that was signed into law on May 18, 2015. 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. 1. Closed Meeting: A. ID 15 -661 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests, to wit: 10.720 acre tract situated in the R.B. Longbottom Survey, Abstract No. 775, and the Caswel Carter Survey, Abstract No. 275, located in the City of Denton, Denton County, Texas, and more particularly described on Exhibit "A ", and located generally on and north of, the 2900 to 3000 block of E. University Dr., in the City of Denton, Denton County, Texas, for the construction, expansion and use of electric substations, City ofDenton Page I Printed on 71,3012015 City Council Meeting Agenda August 4, 2015 B. ID 15 -639 C. ID 15 -645 D. ID 15 -660 switch stations or power transmission lines. Consultation with the City's attorneys regarding legal issues associated with the acquisition 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.[ID 15 -547] (Purple route, Prescott) Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086 Receive competitive public power competitive information and financial information from staff regarding the proposed FY 2015 -2016 operating budget for Denton Municipal Electric ( "DME ") including without limitation, proposed rates for DME for FY 2015- 2016, expected revenues, expenses, commodity volumes, and financial commitments of DME; discuss, deliberate and provide staff with direction. Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074. Deliberate and discuss the appointment and duties of public officers to boards or commissions exercising discretionary or rule 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. Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consult with and provide direction to City's attorneys regarding potential litigation and legal issues and strategies associated with property located at 1003, 1005 and 1007 E. Sycamore, and A1184a H. Sisco, Tr 15, where a public discussion of such matters 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. ID 15 -677 Consultation with Attorneys - Under Texas Government Code, Section 551.071; Deliberations regarding Economic Development Negotiations - Under Texas Government Code, Section 551.087. Receive a report and hold a discussion regarding legal and economic development issues regarding economic development incentives for a business prospective in the Cole Ranch Development. This discussion shall include commercial and financial information the City Council may receive from the business owners which the City 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. Also hold a discussion with the City's attorneys on the referenced topic where 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. City ofDenton Page 2 Printed on 71,3012015 City Council Meeting Agenda August 4, 2015 F. ID 15 -585 Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, 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 vested rights; impacts of federal and state law and regulations; impacts of gas well drilling upon protected uses and vice - versa; current and proposed extension to moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current and proposed; settlement matters concerning gas well drilling in the City; surface development issues involving surface and mineral estates; and legal matters associated with a citizen's initiative ordinance and pending litigation styled George P. Bush, Commissioner, Texas General Land Office v. City of Denton Texas, Cause No. 15- 02058 -362 currently pending in the 362nd District Court of Denton County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 08933 -431 currently pending in the 431st District Court of Denton County regarding hydraulic fracturing where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. 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 §55'1.086 OF THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET SEQ. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §55'1.07'1- 55'1.086 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: 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 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. City ofDenton Page 3 Printed on 71,3012015 City Council Meeting Agenda August 4, 2015 B. Receive citizen reports from the following: A. ID 15 -646 Monica Jones regarding a complaint on Animal Control and Code Enforcement. 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 — P). 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 — P 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. ID 15 -515 Consider and confirm the re- appointment by the City Manager of Paul Abbott to the Civil Service Commission. Attachments: Exhibit 1 - Bio for Paul Abbott B. ID 15 -547 Consider adoption of an ordinance authorizing the City Manager, or his designee, to execute a Contract of Sale between the City of Denton, Texas ("City"), as buyer, and Prescott Interests, LTD., a Texas Limited Partnership ( "Owner "), as seller, to acquire fee title to an approximate 10.720 acre tract situated in the R.B. Longbottom Survey, Abstract No. 775, and the Caswel Carter Survey, Abstract No. 275, located in the City of Denton, Denton County, Texas, and more particularly described on Exhibit "A ", and located generally on and north of, the 2900 to 3000 block of E. University Dr., ( "Property Interest ") for the purchase price of One Million and Seven Hundred Thousand Dollars and no cents ($1,700,000.00) and other consideration, as prescribed in the Contract of Sale ( "Agreement "); authorizing the expenditure of funds; and providing an effective date. Attachments: Exhibit 1- Ordinance and Contract C. ID 15 -555 Consider adoption of an ordinance accepting competitive proposals and awarding a contract for street milling services for the City of Denton; and providing an effective date (RFP 5846- awarded to Dustrol, Inc. in the three (3) year not -to- exceed amount of $400,000). Attachments: Exhibit 1- Evaluation and Ranking Sheet Exhibit 2- Ordinance Exhibit 3- Contract D. ID 15 -579 Consider adoption of an ordinance of the City of Denton, Texas amending the Fiscal Year 2014 -2015 Budget and Annual Program of Services of the City of Denton to allow for adjustments to the Electric Fund of ten million dollars ($10,000,000) for the purpose of paying off outstanding debt, and the Materials Management Fund of two million seven hundred thousand dollars ($2,700,000) for the purpose of City ofDenton Page 4 Printed on 71,3012015 City Council Meeting Agenda August 4, 2015 purchasing additional material inventory related to increased capital construction throughout the city; declaring a municipal purpose; providing a severability clause, an open meetings clause and an effective date. The Audit /Finance Committee recommends approval (3 -0). Attachments: Exhibit 1 - Ordinance E. ID 15 -580 Attachments: F. ID 15 -590 Attachments: G. ID 15 -599 Attachments: Consider adoption of an ordinance considering all matters incident and related to the issuance, sale and delivery of up to $40,860,000 in principal amount of "City of Denton General Obligation Refunding Bonds, Series 2015" (including up to $17,645,000 for Electric Fund activities, up to $17,410,000 for Water Fund Activities, and up to $5,805,000 for Wastewater Fund activities); authorizing the issuance of the Bonds; delegating the authority to certain City officials to execute certain documents relating to the sale of the Bonds; approving and authorizing instruments and procedures relating to said Bonds; and enacting other provisions relating to the subject. The Audit /Finance Committee recommends approval (3 -0). Exhibit 1 - TMPA Resolution No. 2012 -7 -8 Exhibit 2 - CABS Detail for Denton Exhibit 3 - Preliminary GO Refunding Analysis Exhibit 4 - Draft Preliminary Official Statement Exhibit 5 - Ordinance Consider approval of a resolution approving the 2014 Tax Increment Reinvestment Zone Number Two (Westpark TIRZ) Annual Report; and declaring an effective date. Exhibit 1- Resolution and Annual Report Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for construction of Poured in Place Retaining Walls for the City of Denton Kings Row Substation Addition; providing for the expenditure of funds therefor; and providing an effective date (RFP 5810- awarded to DynaGrid Construction Group, LLC in the not -to- exceed amount of amount of $599,683.30). The Public Utilities Board recommends approval (4 -0). Exhibit 1- Location Mao Exhibit 2- Evaluation and Ranking sheet Exhibit 3 -PUB Minutes Exhibit 4- Ordinance H. ID 15 -600 Consider adoption of an ordinance of the City of Denton, Texas approving an Interagency Cooperation Contract by and between the University of Texas at Arlington and the City of Denton, Texas for a term of three years to provide landfill sampling and testing of mined materials; monitoring gas emissions during the mining process; monitoring and characterizing storm water and leachate; evaluating and recommending a dust management system for mining operations; investigate the mined samples; investigate the energy potential of the mined materials; develop landfill mining protocol; municipal solid waste (MSW) sampling and evaluation; and determine moisture content analysis during the ongoing Enhanced Leachate City ofDenton Page 5 Printed on 71,3012015 City Council Meeting Agenda August 4, 2015 I. Attachments: uric /-ni Attachments: J. ID 15 -622 Attachments: K. ID 15 -631 Attachments: L. ID 15 -634 Attachments: M. ID 15 -670 Attachments: Recirculation (ELR) operations for the City of Denton landfill in an amount not -to- exceed $399,806; providing for retroactive approval, confirmation and ratification thereof, authorizing the City Manager or his designee to execute said contract on behalf of the City of Denton; providing for the expenditure of funds; providing an effective date (File 5892). The Public Utilities Board recommends approval (6 -0). Exhibit 1 -PUB Minutes Exhibit 2- Ordinance Exhibit 3 -UTA Agreement Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of electric substation and transmission line easement site preparation services for the City of Denton; and providing an effective date (RFP 5761- awarded to Mann Robinson and Son, Inc. in the three (3) year not -to- exceed amount of $21,990,000). The Public Utilities Board recommends approval (4 -0). Exhibit 1- Evaluation and Ranking Sheet Exhibit 2 -PUB Minutes Exhibit 3- Ordinance Exhibit 4- Contract Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Fred Moore Day Nursery School; authorizing the expenditure of funds; and providing for an effective date. (1,475) Exhibit 1 - Ordinance Exhibit 2 - Agreement Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas, and Giving Hope, INC. for funds that will be used for Homeless Prevention Assistance; providing for the expenditure of funds; and providing for an effective date. ($600) Exhibit 1 - Ordinance Exhibit 2 - Agreement Consider adoption of an ordinance authorizing an agreement between the City of Denton, Texas and the Denton Black Chamber of Commerce; authorizing the expenditure of funds; and providing for an effective date. ($950) Exhibit 1 - Ordinance Exhibit 2 - Agreement Consider approval of the minutes of June 23 and June 30, 2015. Exhibit 1 - June 23, 2015 minutes Exhibit 2 - June 30, 2015 minutes N. ID 15 -678 Consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No. 2014 -423, prescribing the number of positions in each classification of police officer; providing a repealer clause; and declaring an effective date. City ofDenton Page 6 Printed on 71,3012015 City Council Meeting Agenda August 4, 2015 Attachments: Exhibit 1 - 2014 -2015 Sworn Officer Ordinance O. ID 15 -680 Consider adoption of an ordinance repealing Ordinance No. 2011 -038 and enacting a new Section 2 -29 of the City of Denton Code of Ordinances relating to Rules of Procedure for the City Council of the City of Denton; and declaring an effective date. Attachments: Exhibit 1 - Proposed Ordinance Redlined Exhibit 2 - Proposed Ordinance P. ID 15 -681 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to make an application with the Texas Auto Burglary and Theft Prevention Authority for a grant to focus on auto theft and auto burglary and take all other actions necessary to obtain and implement the program; and providing for an effective date. 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 15 -624 Consider nominations /appointments to the City's Boards and Commissions: Airport Advisory Board; Animal Shelter Advisory Committee; Community Development Advisory Committee; Health & Building Standards Commission; Historic Landmark Commission; Human Services Advisory Committee; Library Board; Parks, Recreation and Beautification Board; Planning and Zoning Commission; Public Art Committee; Public Utilities Board; Traffic Safety Commission; and Zoning Board of Adjustment. Attachments: Exhibit 1 - Nominations Sheet B. DCA14 -00091 Consider adoption of an ordinance amending Subchapters 5, 16 and 22 of the Denton Development Code, relating to Gas Well Drilling and Production, Definitions and Procedures; providing a cumulative clause; providing a severability clause; providing for a penalty; and providing for an effective date (DCA14- 0009j). The Planning and Zoning Commission recommends approval (7 -0), with amendments. 6. PUBLIC HEARINGS A. Z15 -0013 Hold a public hearing and consider a rezoning from a Neighborhood Residential 4 (NR -4) district to a Community Mixed Use General (CM -G) district on approximately 8.04 acres of land generally located on the west side of Teasley Lane (FM 2181), approximately 600 feet north of Hickory Creek Road. The Planning and Zoning Commission recommends approval (5 -0). City ofDenton Page 7 Printed on 71,3012015 City Council Meeting Agenda August 4, 2015 Attachments: Exhibit 1 - Planning and Zoning Commission Report Exhibit 2 - Site Location - Aerial Map Exhibit 3 - Zoning Map Exhibit 4 - Future Land Use Map Exhibit 5 - ESA Map Exhibit 6 - NR -4 Permitted Uses Exhibit 7 - CM -G Permitted Uses Exhibit 8 - Applicant Narrative Exhibit 9 - Public Notification Map Exhibit 10 - July 8, 2015 Planning and Zoning Commission Meeting Minutes Exhibit 11 - Draft Ordinance B. Z15 -0018 Hold a public hearing and consider a rezoning from a Neighborhood Residential 2 (NR -2) district to Community Mixed Use General (CM -G) district on approximately 1.7 acres of land generally located on the east side of North Bonnie Brae Street, approximately 475 feet north of West University Drive (U.S. 380). The Planning and Zoning Commission recommends approval of the request (5 -0). Attachments: Exhibit 1- Planning and Zoning Commission Report Exhibit 2 - Site Location - Aerial map Exhibit 3- Zoning Map Exhibit 4 - Future Land Use Map Exhibit 5- NR -2 Permitted Uses Exhibit 6 - CM -G Permitted Uses Exhibit 7- Applicant Narrative Exhibit 8- Public Notification Map Exhibit 9- July 8, 2015 Planning and Zoning Commission Meeting Minutes Exhibit 10- Draft Ordinance C. Z15 -0014 & Hold a public hearing and consider adoption of an ordinance of the City of Denton, S15-0005 Texas, regarding an initial zoning district and use classification of Neighborhood Residential 1 (NR -1) and a Specific Use Permit (SUP) for a Semi- Public Hall, Club, or Lodge. The approximately 10.8 acre site is generally located on the east side of Barthold Road and approximately 2700 feet south of Ganzer Road; adopting an amendment to the City's official Zoning Map and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. (Z15 -0014 and 515- 0005). The Planning and Zoning Commission recommended approval of this request (5 -0), subject to conditions. City ofDenton Page 8 Printed on 71,3012015 City Council Meeting Agenda August 4, 2015 Attachments: Exhibit 1- Staff Analysis Exhibit 2- Aerial Map Exhibit 3 - Zoning Map Exhibit 4 - Future Land Use Map Exhibit 5 - Permitted Uses in Neighborhood Residential 1 Exhibit 6 - Permitted Uses in Rural Residential Exhibit 7- Site Plan Exhibit 8 - Public Notification Map Exhibit 9 - July 8, 2015 Planning and Zoning Commission Meeting Draft Minutes Exhibit 10- Draft Ordinance 7. 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 topics, above posted. 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 , 2015 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL WORK SESSION ROOM AND COUNCIL CHAMBERS ARE 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. City ofDenton Page 9 Printed on 71,3012015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -625, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley, Assistant City Manager Date: August 4, 2015 SUBJECT Receive a report, hold a discussion, and give staff direction regarding nominations to the City's Boards and Commissions. BACKGROUND Attached are the nominations Council has submitted for board and commission positions. Any nominations made during the Work Session will be added to the list prior to consideration. Council will be voting on approval of these nominations at the regular meeting. Respectfully submitted: Jennifer Walters City Secretary EXHIBITS Exhibit 1 - Nominations Sheet City of Denton Page 1 of 1 Printed on 7/30/2015 BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Airport Advisory Board Roden Briggs Johnson Kent Key N Animal Shelter Advisory Committee Wazny David Zoltner (N) Hawkins Watts Community Development Advisory Crate. Roden Briggs Hawkins Johnson Barbara Gaile N Health & Building Standards Commission Roden Wazny Rex Stafford (N) Gregory Johnson Brooks Stoy (N) Watts Historic Landmark Commission Roden Wazny Peggy Riddle (R) Hawkins Eric Pulido (R) Gregory Johnson Kenneth Williamson (N) All Al ssa Stevenson R Human Services Advisory Committee Roden Wazny Stephen Coffey (R) Gregory Johnson Lisa Pieper (N) Watts Sheryl English (R) All Library Board Roden Briggs Gregory Johnson Bonnie McCormick R Parks, Recreation & Beautification Board Roden Johnson Russ Stukel (R) Watts Planning and Zoning Commission Roden Briggs Hawkins Andrew Rozell (N) Watts Public Art Committee Roden Hawkins Frank Mayhew N R - Reappointment N - New Nomination BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Gregory Johnson Jim Clement R Public Utilities Board Roden Briggs Gregory Watts Charles Jackson R Traffic Safety Commission Wazny Nancy DiMarco (R) Hawkins Brad Hudson (N) Gregory Watts Patrice L ke R Zoning Board of Adjustment Roden Wazny Sara Bagheri (N) Hawkins Johnson Greg Sawko (N) Watts Connie Baker (R) Alternate Marshall Surratt R R - Reappointment N - New Nomination City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: DCA14- 0009L, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Planning and Development CM/ ACM: Jon Fortune Date: August 4, 2015 SUBJECT Hold a discussion on complementary amendments to the Denton Development Code; specifically Subchapters 5, 16, and 22, relating to Gas Well Drilling and Production, Definitions, and Procedures; in order to reconcile Denton's gas well regulations with House Bill 40 that was signed into law on May 18, 2015. BACKGROUND On December 16, 2014, the City Council and Planning and Zoning Commission (P &Z) held a joint Public Hearing concerning ordinance amendments to Subchapters 5, 7, 16, and 22 of the Denton Development Code. City Council continued the public hearing to their January 6, 2015 meeting and P &Z closed their public hearing, but delayed action as an Item for Individual Consideration. Since the initial joint public hearing for DCA14 -0009, the P &Z deliberated on this topic during three public meetings and ultimately voted 4 -3 to recommend denial of the initially proposed revisions. In addition, the City Council deliberated on this matter during eight separate meetings. During the course of City deliberations on DCA14 -0009, the Texas Legislature was also working to propose statewide regulations that impacted municipal regulatory oversight of urban oil and gas drilling. Specifically, House Bill 40 (HB 40), relating to the exclusive jurisdiction of this state to regulate oil and gas operations in this state and the express preemption of local regulation of those operations, was enacted by the Texas Legislature and signed by the Governor on May 18, 2015. This new legislation prompted City staff to review the City's gas well regulations, including the current rules and previously proposed revisions, in order to reconcile the municipal ordinances with state law. In light of the statewide changes brought forth from HB 40, staff concluded that the initially proposed amendments to Subchapters 5, 7, 16 and 22 of the Denton Development Code needed further consideration. As a result, on June 16, 2015, the City Council decided to remand DCA14 -0009 back to the P &Z to develop new, innovative DDC amendments. House Bill 40 provides that municipalities may enact, amend, or enforce an ordinance that regulates aboveground activity related to an oil and gas operation that occurs at or above the surface of the ground, including a regulation governing fire and emergency response, traffic, lights, or noise, or imposing notice or reasonable setback requirements so long as such regulation is commercially reasonable and does not effectively prohibit an oil and gas operation conducted by a reasonably prudent operator and which is not otherwise preempted by law. The table included on the following page summarizes the respective regulatory authority spelled out under House Bill 40 for various oil and gas related activities. City of Denton Page 1 of 4 Printed on 7/30/2015 File #: DCA14- 0009L, Version: 1 House Bill 40: Oil and gas operation activities preempted: Aboveground surface activities City can regulate: 1. Exploration, development, production, processing, and transportation of oil & gas; 1. Fire and emergency response 2. Drilling; 2. Traffic 3. Hydraulic fracturing; 3. Lights 4. Completion; 4. Noise 5. Maintenance; 5. Imposing Notice 6. Reworking; 6. Reasonable setback requirements 7. Recompletion; DDC Section 35.22.2 - 8. Disposal; DDC Section 35.22.3 - 9. Plugging and abandonment; DDC Section 35.22.4 - 10. Secondary or tertiary recovery; and DDC Section 35.22.5 - 11. Remediation activities. The ordinance revisions are still intended to remedy the impacts of hydrocarbon exploration in an urban environment, to include oil and gas operations that occur at or above the surface of the ground; such as emergency response, traffic, lights, noise, notice, and setback requirements. Primary objectives for the proposed revisions are to preserve: surface property values; the character of neighborhoods; and other quality of life issues in the city of Denton. To achieve this goal, Subchapter 22 of the Denton Development Code (DDC) was streamlined and reorganized to provide a clear understanding of the gas well development requirements inside the city limits. In addition to changes contained within Subchapter 22, revisions to additional DDC Chapters have been proposed. In some cases, existing provisions were amended, such as for the use charts and the limitations by type of zoning district contained in Subchapter 5. In other cases, an entire new subsection is being added, such as the provisions proposed as an addition under Subchapter 35.5.10.1 -6 and the additions proposed as Subchapter 35.16.7.E -F. The list of new ordinance amendments is as follows: 1. DDC Section 35.5.10.1 - 2. DDC Section 35.5.10.2 - 3. DDC Section 35.5.10.3 - 4. DDC Section 35.5.10.4 - 5. DDC Section 35.5.10.5 - 6. DDC Section 35.5.10.6 - 7. DDC Section 35.22.1 - 8. DDC Section 35.22.2 - 9. DDC Section 35.22.3 - 10. DDC Section 35.22.4 - 11. DDC Section 35.22.5 - Purpose, Authority, and Applicability Required Authorization for Gas Well Development in City General Permit Requirements Gas Well Development Site Plans Gas Well Permits Relief Measures Definitions Standards for Gas Well Drilling and Production Indemnification and Insurance Security Inspection City of Denton Page 2 of 4 Printed on 7/30/2015 File #: DCA14- 0009L, Version: 1 12. DDC Section 35.22.6 - Periodic Reports 13. DDC Section 35.22.7 - Notice of Activities 14. DDC Section 35.22.8 - Remedies, Enforcement, and Right of Entry 15. DDC Section 35.22.9 - Watershed Permits for Gas Well Developments 16. DDC Section 35.16.7 - Lots, Access, and Common Areas OPTIONS Approve, deny or postpone the action. RECOMMENDATION On July 22, 2015, the Planning and Zoning Commission (P &Z) voted 7 -0 to recommend APPROVAL of DCA14 -0009, with amendments. Staff recommends APPROVAL of DCA14 -0009, as amended. PRIOR ACTION/REVIEW: On December 16, 2014, the City Council and P &Z held a joint Public Hearing concerning ordinance amendments to Subchapters 5, 7, 16, and 22 of the Denton Development Code. City Council continued the public hearing to their January 6, 2015 meeting and P &Z closed their public hearing, but delayed action as an Item for Individual Consideration. On January 6, 2015, City Council voted 6 -0 to continue the public hearing for DCA14 -0009 to their next meeting. On January 7, 2015, P &Z voted 7 -0 to delay action on the Item for Individual Consideration of DCA14 -0009 until their next meeting. On January 13, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to an event certain, which is the meeting following receipt of a recommendation report from P &Z. On January 21, 2015, P &Z voted 7 -0 to delay action on the Item for Individual Consideration of DCA14 -0009 until their next meeting. On February 4, 2015, P &Z voted 4 -3 to recommend DENIAL of DCA14 -0009, as presented. On February 17, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to March 3, 2015. On March 3, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to March 24, 2015. On March 24, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to April 7, 2015. On April 7, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to April 14, 2015. On April 14, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to June 16, 2015. City of Denton Page 3 of 4 Printed on 7/30/2015 File #: DCA14- 0009L, Version: 1 On June 16, 2015, City Council voted 6 -1 to remand DCA14 -0009 back to P &Z for a public hearing on July 22, 2015. On July 22, 2015, P &Z voted 7 -0 to recommend APPROVAL of DCA14 -0009, with amendments. On July 28, 2015, City Council voted 7 -0 to close the public hearing for DCA14 -0009 and continued action to August 4, 2015. ATTACHMENTS: 1. Draft Gas Well Ordinance - redline version (hard copy provided under separate cover) - reflects P &Z Commission's policy recommendations regarding setbacks and variances, along with City Staff's non - policy recommended changes 2. Draft Gas Well Ordinance - clean version (hard copy provided under separate cover) - reflects City Staff's policy recommendations (highlighted in yellow) regarding setbacks and variances, along with City Staff's non - policy recommended changes Respectfully submitted: Aimee Bissett Interim Planning & Development Director Prepared by: Darren Groth, AICP, CPM, REP Manager, Gas Well Inspections Division City of Denton Page 4 of 4 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -661, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests, to wit: 10.720 acre tract situated in the R.B. Longbottom Survey, Abstract No. 775, and the Caswel Carter Survey, Abstract No. 275, located in the City of Denton, Denton County, Texas, and more particularly described on Exhibit "A ", and located generally on and north of, the 2900 to 3000 block of E. University Dr., in the City of Denton, Denton County, Texas, for the construction, expansion and use of electric substations, switch stations or power transmission lines. Consultation with the City's attorneys regarding legal issues associated with the acquisition 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 litigationJID 15 -547] (Purple route, Prescott) City of Denton Page 1 of 1 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 15 -639, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Certain Public Power Utilities: Competitive Matters - Under Texas Government Code, Section 551.086 Receive competitive public power competitive information and financial information from staff regarding the proposed FY 2015 -2016 operating budget for Denton Municipal Electric ( "DME ") including without limitation, proposed rates for DME for FY 2015 -2016, expected revenues, expenses, commodity volumes, and financial commitments of DME; discuss, deliberate and provide staff with direction. City of Denton Page 1 of 1 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON File #: ID 15 -645, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074 Deliberate and discuss the appointment and duties of public officers to boards or commissions exercising discretionary or rule 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. City of Denton Page 1 of 1 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -660, Version: 1 Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consult with and provide direction to City's attorneys regarding potential litigation and legal issues and strategies associated with property located at 1003, 1005 and 1007 E. Sycamore, and Al 184a H. Sisco, Tr 15, where a public discussion of such matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. City of Denton Page 1 of 1 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -677, Version: 1 Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code, Section 551.071; Deliberations regarding Economic Development Negotiations - Under Texas Government Code, Section 551.087. Receive a report and hold a discussion regarding legal and economic development issues regarding economic development incentives for a business prospective in the Cole Ranch Development. This discussion shall include commercial and financial information the City Council may receive from the business owners which the City 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. Also hold a discussion with the City's attorneys on the referenced topic where 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. City of Denton Page 1 of 1 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DEN'FON Legislation Text File #: ID 15 -585, Version: 1 Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, 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 vested rights; impacts of federal and state law and regulations; impacts of gas well drilling upon protected uses and vice - versa; current and proposed extension to moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current and proposed; settlement matters concerning gas well drilling in the City; surface development issues involving surface and mineral estates; and legal matters associated with a citizen's initiative ordinance and pending litigation styled George P. Bush, Connnissioner, Texas General Land Office v. City of Denton Texas, Cause No. 15- 02058 -362 currently pending in the 362nd District Court of Denton County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 08933 -431 currently pending in the 431st District Court of Denton County regarding hydraulic fracturing where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. City of Denton Page 1 of 1 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -646, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Monica Jones regarding a complaint on Animal Control and Code Enforcement. City of Denton Page 1 of 1 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -515, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Human Resources CM/ ACM: Bryan Langley Date: August 4, 2015 SUBJECT Consider and confirm the re- appointment by the City Manager of Paul Abbott to the Civil Service Commission. BACKGROUND Paul Abbott's second term expires in August of 2015; however, he is eligible to serve another term. In compliance with Chapter 143.006 (b) of the Texas Local Government Code, the municipality's chief executive (City Manager) shall appoint a member to serve a three -year term and the governing body (City Council) shall confirm this appointment. RECOMMENDATION The City Manager has elected to re- appoint Paul Abbott to the Civil Service Commission. PRIOR ACTION/REVIEW (Council, Boards, Commissions) No prior action or review. FISCAL INFORMATION This item has no fiscal impact. EXHIBITS Exhibit 1 - Bio for Paul Abbott Respectfully submitted: Carla Romine - Haggmark Director of Human Resources City of Denton Page 1 of 1 Printed on 7/30/2015 Paul Abbott Paul Abbott is a resident of Denton and retired from the Denton Police Department (DPD) in January 2010, having served the DPD for over 37 years. During that time he served as Commander for each of the department's three bureaus, supervising patrol operations, investigations, training, & management of the department's budget. He organized and commanded the department's Tactical (SWAT) unit and supervised over 60 high -risk tactical operations, with no loss of life. Mr. Abbot served as an Area Commander during the department's implementation of Community Oriented Policing, and has instructed Community Policing practices in police academies across the U.S., the former Soviet Republic of Georgia, and San Nicolas de los Garza, N.L. Mexico. He served as the interim Police Chief for the Denton Police Department from March 7, 2011, until October 25, 2011. Before joining the Denton Police Department in 1972, Paul served in the U.S. Army. Initially trained as a Military Policeman, he served with the 25th Infantry Division in South Vietnam. Following this tour of duty he was assigned to Military Intelligence, working in West Germany for two years. He holds the Texas Commission on Law Enforcement Officer Standards & Education Master Police Officer License & Police Instructor License, and is a graduate of the FBI National Academy in Quantico, Va. He also served as an adjunct faculty member for North Central Texas College for 13 years. He is currently a member of the Civil Service Commission for the City of Denton. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -547, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Denton Municipal Electric CM/ ACM: Howard Martin, 349 -8232 Date: August 4, 2015 SUBJECT Consider adoption of an ordinance authorizing the City Manager, or his designee, to execute a Contract of Sale between the City of Denton, Texas( "City "), as buyer, and Prescott Interests, LTD., a Texas Limited Partnership ( "Owner "), as seller, to acquire fee title to an approximate 10.720 acre tract situated in the R.B. Longbottom Survey, Abstract No. 775, and the Caswel Carter Survey, Abstract No. 275, located in the City of Denton, Denton County, Texas, and more particularly described on Exhibit "A ", and located generally on and north of, the 2900 to 3000 block of E. University Dr., ( "Property Interest ") for the purchase price of One Million and Seven Hundred Thousand Dollars and no cents ($1,700,000.00) and other consideration, as prescribed in the Contract of Sale ( "Agreement "); authorizing the expenditure of funds; and providing an effective date. BACKGROUND The DME Capital Improvement Plan includes the reconstruction of transmission power lines around the City of Denton. The transmission route recommended by The Public Utilities Board and approved by the City Council crosses a portion of the above mentioned tract. The City and property owner originally began negotiations for the purchase of required easements but those negotiations failed. The City then went forward with eminent domain proceedings and was awarded its easements. Owner appealed the award of the commissioners and eventually prevailed with its appeal, therefore eliminating the easement. The City and Owner have resumed negotiations and the Contract associated with this agenda item is a direct result of that process. OPTIONS 1. Approval of the seller' (s) contract offer and recommend to the City Council that it approve and adopt an ordinance authorizing the purchase. 2. Do not recommend approval. RECOMMENDATION DME recommends that the Public Utilities Board recommend approval of the seller's offers of option contract. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Initial offer 5/17/13 City of Denton Page 1 of 2 Printed on 7/30/2015 File #: ID 15 -547, Version: 1 Final offer 7/1/13 Counter offer rejected 8/25/13 ED Hearing 5/12/14 Prescott Motion to Dismiss granted on 2/2/2015 FISCAL INFORMATION The work proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission transmission cost of service program (TCOS). EXHIBITS 1. Ordinance and Contract Respectfully submitted: Phil Williams General Manager Prepared by: Smith Day Compliance Manager City of Denton Page 2 of 2 Printed on 7/30/2015 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE ' CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE A CONTRACT OF SALE BETWEEN THE CITY OF DENTON, TEXAS ( "CITY "), AS BUYER, AND PRESCOTT INTERESTS, LTD., A TEXAS LIMITED PARTNERSHIP ( "OWNER "), AS SELLER, TO ACQUIRE FEE TITLE TO AN APPROXIMATE 10.720 ACRE TRACT SITUATED IN THE R.B. LONGBOTTOM SURVEY, ABSTRACT NO. 775, AND THE CASWEL CARTER SURVEY, ABSTRACT NO. 275, LOCATED IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, AND MORE PARTICULARLY DESCRIBED ON EXHIBIT "A ", AND LOCATED GENERALLY ON, AND NORTH OF, THE 2900 TO 3000 BLOCK OF E. UNIVERSITY DR., ( "PROPERTY INTEREST ") FOR THE PURCHASE PRICE OF ONE MILLION AND SEVEN HUNDRED THOUSAND DOLLARS AND NO CENTS ($1,700,000.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE CONTRACT OF SALE ( "AGREEMENT "); AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton ( "City ") made an offer to Prescott Interests, Ltd, a Texas limited partnership ( "Owner "), to purchase the Property Interest; WHEREAS, the Owner has made a counteroffer to the offer of the City; WHEREAS, the 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 Manager, or his designee, is authorized (a) to execute on behalf of the City (i) the Contract of Sale, between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $1,700,000.00 and other consideration, plus costs and expenses, all as prescribed in the Contract of Sale; and (ii) any other documents necessary for closing the transaction contemplated by the Contract of Sale; and (b) to make expenditures in accordance with the terms of the Contract of Sale. SECTION 2. 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 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2015. awa ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: CHRIS WATTS, MAYOR awa EXH I BIT A CONTRACT OF SALE 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. This Contract of Sale (the "Contract ") is made this 27`" day of July, 2015, between the Seller, Prescott Interests, Ltd., a Texas limited partnership, and the Buyer, the City of Denton, Texas, a Texas home rule municipal corporation. The "Effective Date" of this Contract is the date of execution of the same by the Buyer. RECITALS WHEREAS, the Seller owns that certain tract of land being more particularly described on Exhibits "A" and "B" attached, and visually depicted in the attached Exhibit "C ", being located in Denton County, Texas (the "Land "); and WHEREAS, the Seller wants to sell to the Buyer, and the Buyer wants to buy from the Seller, the Land, together with: (a) all rights, privileges, and appurtenances pertaining to the Land owned by the Seller, including but not limited to all trees, timber rights and contracts for cutting timber, water rights, claims and permits, adjacent streets, and easements and rights of way; (b) all intangible property, if any, owned by the Seller and pertaining to the Land or the use of the Land, including, but not limited to, all present and future use of wastewater, wastewater capacity, drainage, drainage capacity, water, water capacity, or other utility facilities directly attributable to the Land; (c) all reservations of, commitments for, and letters covering utility capacity owned by the Seller and pertaining to the Land, whether or not they are currently being used to the fullest extent available; (d) all of the Seller's right, title, and interest and estates in any land lying within the bed of any stream, river, lake, or other waterway or body of water on or crossing that portion of the Land; Contract of Sale Page 1 of 19 Exhibit A �� (e) all of the Seller's right, title, and interest and estates in any land within any easement or right of way or under any bed of any road or highway, whether open or proposed on or crossing that portion of the Land; (f) all of the Seller's right, title, and interest and estates in any excess land, vacancies, and strips and gores of land, if any, between that portion of the Land, and any adjoining real properties belonging to third parties. (Collectively, the Land and above items described in (a) through (f) above are referred to in this Contract as the "Property "). Notwithstanding the foregoing or anything else to the contrary contained in this Contract, the Property does not include any of the oil, gas and other minerals underlying or which are part of the Land. ARTICLE I SALE OF PROPERTY For the consideration set forth, and upon the terms, conditions and provisions contained, the Seller agrees to sell and convey to the Buyer, and the Buyer agrees to purchase from the Seller, the Property. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.1 Purchase Price. The Purchase Price to be paid to the Seller by the Buyer for the Property is the sum of One Million and Seven Hundred Thousand Dollars ($1,700,000.00) (the "Purchase Price "). 2.2 Earnest Money. The Buyer shall deposit the sum of Five Thousand Dollars ($5,000.00), as Earnest Money with Title Resources, 525 South Loop 288, Suite 125, Denton, Texas (940) 381 -1006 ( "Title Company "), as escrow agent, within ten (10) calendar days of the Effective Date. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated is consummated in accordance with the terms and the provisions of this Contract, the Earnest Money, together with all interest earned thereon, shall be applied to the Purchase Price at the Closing. In all other events, the Earnest Money, and the interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.3 Independent Contract Consideration. Within ten (10) calendar days after the Effective Date, the Buyer shall deliver to the Title Company, payable to and for the benefit of the Seller (which shall be immediately delivered by the Title Company to the Seller for deposit in the Seller's account), a check in the amount of One Hundred and No /100 Dollars ($100.00) (the "Independent Contract Consideration "), which amount the parties .� Exhibit A acknowledge and agree has been bargained for and agreed to as consideration for the Seller's execution and delivery of this Contract. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract, is non - refundable, and shall be retained by the Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.1 Title Commitment. (a) Within seven (7) calendar days after the Survey has been furnished to the Title Company, the Title Company shall furnish to the Buyer a current Commitment for Title Insurance (the "Title Commitment ") for the Property. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to as an "Exception "). (b) Along with the Title Commitment, the Title Company also shall deliver to the Buyer true and correct copies of all instruments that create or evidence Exceptions (the "Exception Documents "), including those described in the Title Commitment as exceptions to which the conveyance will be subject and /or which are required to be released or cured at or prior to the Closing. 3.2 Survey. Within forty -five (45) calendar days after the Effective Date, the Buyer shall cause to be delivered to the Seller and the Title Company, at the Buyer's expense, both a "pdf' (Adobe Acrobat) electronic version and a full -sized (24" x 36 ") paper version of a current land title survey of the Property (the "Survey "), dated and certified on a date after the Effective Date, meeting the current Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, certified to the Seller, the Buyer and the Title Company and prepared by a Texas registered professional land surveyor approved by the Seller (which approval shall not be unreasonably withheld, conditioned or delayed), which shall contain a metes and bounds description of the Property and which shall certify the number of acres and square feet contained within the boundaries of the Property. After the Survey has been approved by the Seller, the Buyer and the Title Company, the legal description contained on the Survey shall be used in the documents employed to close this Contract. 3.3 Review of Title Commitment, Survey and Exception Documents. The Buyer shall have a period of ten (10) calendar days (the "Title Review Period ") commencing with the day the Buyer receives the last of the Title Commitment, the Survey, and the Exception awa Documents, in which to give written notice to the Seller, specifying the Buyer's objections to one or more of the items ( "Objections "), if any. All items set forth in the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to the Closing, shall be deemed to be Objections without any action by the Buyer. 3.4 The Seller's Obligation to Cure; the Buyer's Right to Terminate. The Seller shall, within ten (10) calendar days after the Seller is provided any notice of Objections (the "Cure Period "), either satisfy the Objections at the Seller's sole cost and expense or notify the Buyer in writing of the Objections that the Seller cannot or will not satisfy at the Seller's expense. Notwithstanding the foregoing sentence, the Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by the Seller after the Effective Date. If the Seller fails or refuses to satisfy any Objections that the Seller is not obligated to cure within the Cure Period, then the Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to the Seller prior to the Closing, in which event those Objections shall become Permitted Exceptions, or (b) terminating this Contract by notice in writing prior to the Closing and receiving back the Earnest Money, in which latter event the Seller and the Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract except for those obligations which survive the termination of this Contract. If the Buyer does deliver a written notice to the Seller pursuant to clause (a) or (b) of this Section 3.4 within seven (7) calendar days after the end of the Cure Period, then this Contract shall be deemed terminated pursuant to clause (b) of this Section 3.4. 3.5 Permitted Exceptions. As used in this Contract, the term "Permitted Exceptions" means the lien for property taxes for the year of the Closing and all typed (not printed) exceptions contained in Schedule B of the version of the Title Commitment outstanding at the end of the Cure Period. 3.6 Title Policy. At the Closing, the Seller, at the Buyer's sole cost and expense, shall cause a standard Texas Owner's Policy of Title Insurance ( "Title Policy ") to be furnished to the Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that the Buyer has indefeasible fee simple title to the Property, subject only to the standard exclusions from coverage, the standard conditions and stipulations, the standard printed exceptions and the Permitted Exceptions. The Title Policy may contain only the standard exclusions from coverage, the standard conditions and stipulations, the standard printed exceptions and the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: Contract of Sale Page 4 of 19 Exhibit A (a) survey exception must be amended if required by the Buyer to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by the Buyer, of any required additional premium); (b) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any specific easement or use shown on the Survey, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession" (the Buyer will pay any charge of the Title Company for any inspection required by the Title Company to delete this exception); and (d) no liens will be shown on Schedule B (except for the inchoate lien for property taxes not yet due and payable). Notwithstanding the enumeration of the foregoing exceptions, amendments and /or deletions, the Buyer may object to any Exception the Buyer deems material, in the Buyer's sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.1 Review Period. Any term or provision of this Contract notwithstanding, the obligations of the Buyer specified in this Contract are wholly conditioned on the Buyer's having determined, in the Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending sixty (60) calendar days thereafter (the "Absolute Review Period "), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at the Buyer's sole cost, that the Buyer finds the Property suitable for the Buyer's purposes. The Buyer is granted the right to conduct engineering studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If the Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for the Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to the Buyer, and neither the Buyer nor the Seller shall have any further duties or obligations hereunder. In the event the Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.1, the Buyer will provide to the Seller copies of (i) any and all non - confidential and non - privileged reports and studies obtained by the Buyer during the Absolute Review Period; and (ii) the Survey. If this Contract does not close for any reason (other than the Seller's default under this Contract), the Buyer agrees to provide to the Seller (for no charge to the Seller) a copy of each written test, a Contract of Sale Page 5 of 19 WA "dwg" (AutoCAD electronic) version of the survey, procedure, study, report or investigation prepared by third parties for the Buyer which deal with physical conditions at the Property, including environmental conditions. 4.2 Repair /Restoration. It is understood and agreed that all entries upon the Property and all inspections, tests, surveys, procedures, studies or investigations performed upon the Property by the Buyer or any employees, contractors or consultants of the Buyer (together, "Consultants ") shall be made and performed in a manner reasonably calculated to minimize damage to the Property therefrom to the extent feasible. All inspections, tests, surveys, procedures, studies, investigations and other actions or omissions of the Buyer or of any Consultants in, on, under or about the Property are made, taken or omitted at the sole risk, cost and expense of the Buyer. All costs or charges incurred or made in connection with all inspections, tests, surveys, procedures, studies or investigations in, on, under or about the Property made by or on behalf of the Buyer shall be the sole responsibility of and be paid for by the Buyer. In the event of the recordation of any affidavit or claim of lien against the Property for materials, labor or services relating to any inspections, tests, surveys, procedures, studies or investigations in, on, under or about the Property made by or on behalf of the Buyer, the Buyer promptly shall satisfy and discharge the same at the Buyer's sole cost and expense. If this Contract does not close for any reason, the Buyer at the Buyer's sole risk, cost and expense promptly shall repair in a good, workmanlike manner any damage to the Property arising or resulting from all actions or omissions by the Buyer or by any Consultants and restore the Property to the condition existing on the date immediately prior to the occurrence of such damage. If the Buyer fails to satisfy and discharge any affidavit or claim of lien recorded against the Property or to repair and restore any damage to the Property as required hereinabove within 15 calendar days after the Seller demands that the Buyer do so, the Seller may do so, and all reasonable sums expended by the Seller in so doing (including, without limitation, reasonable attorneys' fees, attorneys' disbursements and court costs), plus, interest thereon at a per annum rate equal to the lesser of the maximum non - usurious contractual interest rate or 10% from the date such sums were expended by the Seller until the date of repayment by the Buyer, shall be due and payable to the Seller by the Buyer upon demand. 4.3. As Is Sale /Limited Warranties and Representations. AS A MATERIAL INDUCEMENT TO THE SELLER TO ENTER INTO THIS CONTRACT AND TO SELL THE PROPERTY TO THE BUYER, THE BUYER HEREBY ACKNOWLEDGES AND AGREES THAT: (I) THE BUYER IS PURCHASING THE PROPERTY IN "AS IS, WHERE IS CONDITION, WITH ALL FAULTS"; (II) THE BUYER IS PURCHASING THE PROPERTY SUBJECT TO ALL EXISTING LAWS, STATUTES, ORDINANCES, CODES, RULES AND REGULATIONS, AND THE BUYER SHALL BE RESPONSIBLE FOR THE PAYMENT OF ALL CONNECTION CHARGES, PRO RATA FEES, DEVELOPER LIABILITY PAYMENTS, FACILITIES FEES, PARK FEES AND LIKE CHARGES, FEES AND PAYMENTS REQUIRED IN CONNECTION WITH THE UTILIZATION OF UTILITIES, ROADS OR OTHER SIMILAR IMPROVEMENTS TO SERVE THE PROPERTY AND /OR ANY IMPROVEMENTS EXISTING OR HEREAFTER CONSTRUCTED OR PLACED THEREON; (III) EXCEPT AS EXPRESSLY SET FORTH Contract of Sale Page 6 of 19 , Exhibit A IN SECTION 5.1 HEREOF AND EXCEPT FOR THE SPECIAL WARRANTY OF TITLE CONTAINED IN THE DEED, NEITHER THE SELLER NOR ANY PARTY REPRESENTING THE SELLER HAS MADE ANY WARRANTY OR REPRESENTATION TO THE BUYER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS CONCERNING HABITABILITY, SUITABILITY, MERCHANTABILITY, WORKMANSHIP, ENVIRONMENTAL CONDITIONS, INCOME TO BE DERIVED FROM THE PROPERTY, EXPENSES TO BE INCURRED IN CONNECTION WITH THE PROPERTY, ZONING, BUILDING CODE, PLATTING, SUBDIVISION, ACCESS, AVAILABILITY OF UTILITIES OR COMPLIANCE WITH ANY LAWS, STATUTES, ORDINANCES, CODES, RULES OR REGULATIONS; AND (IV) EXCEPT FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS CONTAINED IN SECTION 5.1 HEREOF AND THE SPECIAL WARRANTY OF TITLE CONTAINED IN THE DEED, THE BUYER WILL NOT RELY ON ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF THE SELLER OR ANY PARTY REPRESENTING THE SELLER BUT INSTEAD WILL RELY ON THE BUYER'S AND ANY CONSULTANT(S)' INSPECTIONS, TESTS, SURVEYS, PROCEDURES AND INVESTIGATIONS OF THE PROPERTY. THE BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY REPORTS, AUDITS, ASSESSMENTS, STUDIES OR OTHER INFORMATION WITH RESPECT OR PERTAINING TO THE PROPERTY FURNISHED TO THE BUYER BY THE SELLER (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL REPORTS AND ANY ENGINEERING REPORTS) OR BY ANY PARTY REPRESENTING THE SELLER HAVE BEEN PROVIDED BY THE SELLER TO THE BUYER WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, ORAL OR WRITTEN, CONCERNING THE ADEQUACY OR THE ACCURACY THEREOF AND THAT THE BUYER WILL NOT RELY THEREON BUT INSTEAD WILL RELY ON THE BUYER'S OR ON THE APPLICABLE CONSULTANT(S)' INVESTIGATIONS OF THE PROPERTY TO DETERMINE WHETHER THE PROPERTY IS IN A CONDITION SATISFACTORY TO THE BUYER AND WHETHER THE PROPERTY IS SUITABLE FOR THE BUYER'S INTENDED USE. 4.4. WAIVERS OF CONSUMER RIGHTS. THE BUYER WARRANTS AND REPRESENTS TO THE SELLER THAT THE BUYER HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE THE BUYER TO EVALUATE THE MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED BY THIS CONTRACT. FURTHER, THE BUYER ACKNOWLEDGES THAT THE BUYER IS NOT IN A DISPARATE BARGAINING POSITION RELATIVE TO THE SELLER WITH RESPECT TO THIS CONTRACT. ALSO, THE BUYER ACKNOWLEDGES THAT THE BUYER HAS BEEN REPRESENTED IN CONNECTION WITH THIS CONTRACT BY INDEPENDENT LEGAL COUNSEL SELECTED BY THE BUYER AND THAT THE WAIVERS CONTAINED IN THIS SUBPARAGRAPH ARE BEING VOLUNTARILY MADE BY THE BUYER AFTER CONSULTATION WITH SUCH LEGAL COUNSEL. TO THE EXTENT APPLICABLE AND PERMITTED BY Contract of Sale Page 7 of 19 Exhibit A LAW (AND WITHOUT ADMITTING SUCH APPLICABILITY), THE BUYER HEREBY WAIVES THE PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACT, CHAPTER 17, SUBCHAPTER E, SECTION 17.41 THROUGH 17.926, INCLUSIVE.. 4.5. Survival. Notwithstanding anything to the contrary contained in this Contract, the provisions contained in this Article IV shall survive any termination of this Contract, the delivery of the Deed and the Closing. ARTICLE V REPRESENTATIONS. WARRANTIES. COVENANTS AND AGREEMENTS 5.1 Representations and Warranties of the Seller. To induce the Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance with the terms and provisions herewith, the Seller represents and warrants to the Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that: (a) Except for the Permitted Exceptions, the Seller is not aware of any party's in possession of any part of the Property or claiming any adverse possession to any part of the Property. (b) Except for the Permitted Exceptions, the Seller has not granted any license, lease or other right related to the use or possession of the Property (the Seller hereby discloses to the Buyer that the billboard on a portion of the Property has been leased to Clear Channel and that such lease will be a Permitted Exception). (c) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out the Seller's obligations hereunder. (d) Except for a potential condemnation of the Property by the Buyer, the Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against the Property. (e) The Seller will not enter into any contract or agreement prior to the Closing Date which could give rise to mechanic's, materialman's, or other liens against the Property other than work or materials to which the Buyer has given its consent in writing. (f) The Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. l.: "ontract of Sale Page 8 of 19 Exhibit A (g) Except as described in the environmental reports provided by the Seller to the Buyer, the Seller is not aware of the disposal or release of any Hazardous Substance to, on or from the Property. As used in this Contract, "Hazardous Substance" means and includes all hazardous and toxic substances, waste or materials, chemicals, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos - containing material, petroleum products and raw materials, that are included under or regulated by any Environmental Law or that would or may pose a health, safety or environmental hazard. As used in this Contract, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean -up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, Toxic Substance Control Act, 15 U.S.C. 2601, et seq., and state superlien and environmental clean -up statutes and all rules and regulations presently or hereafter promulgated under or related to said statutes, as amended. (h) The only lease affecting the Property is a billboard lease. The Seller has provided the Buyer with a copy of such billboard lease which shall be assigned by the Seller to the Buyer at the Closing. (i) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 5.2 Covenants and Agreements of the Seller. The Seller covenants and agrees with the Buyer as follows: (a) Unless stated otherwise, within ten (10) calendar days after the Effective Date, the Seller, at the Seller's sole cost and expense, shall deliver to the Buyer, with respect to the Property, true, correct, and complete copies of the following: G) All lease agreements and /or occupancy agreements and/or licenses of any kind or nature (if oral, the Seller shall provide to the Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments (the "Leases "). (ii) All environmental audits, soil tests and engineering and feasibility reports, including any and all modifications, supplements and amendments, with respect to the Property that the Seller possesses or has the right to receive. (b) From the Effective Date until the date of the Closing or earlier termination of this Contract, the Seller shall: Contract of Sale Page 9 of 19 Exhibit A (i) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on the Buyer or the Property after the date of the Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing concerning or affecting the Property. (iii) Not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of the Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached or perfected, any lien, encumbrance, or charge thereon. (c) The Seller shall indemnify and hold the Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts with the Seller arising or entered into prior to the Closing. 5.3 Incorrect Warranties and Representations. If, prior to the Closing, either the Seller or the Buyer discovers that any of the warranties and representations contained in Section 5.1 are incorrect, the applicable party promptly shall notify the other party in writing of the facts or circumstances making the applicable warranty and representation incorrect. If prior to the Closing the Buyer discovers that any of the warranties and representations contained in Section 5.1 are incorrect and fails to notify the Seller thereof in writing, then as of the Closing, the Buyer conclusively and irrevocably shall be deemed to have accepted the facts or circumstances making the applicable warranty and representation incorrect and to have waived and released all claims against the Seller for breach of the applicable warranty and representation. If the Seller notifies the Buyer in writing prior to the Closing or if the Buyer discovers prior to the Closing that any of the warranties and representations contained in Section 5.1 are incorrect, the Buyer, as the Buyer's sole and exclusive remedy, shall have the right to terminate this Contract by delivering written notice of such election to the Seller prior to the Closing, in which event, the Earnest Money shall be returned to the Buyer by the Title Company, and all duties, obligations, agreements and liabilities of the Seller and the Buyer hereunder shall terminate except those duties and obligations which survive the termination of this Contract. Notwithstanding the preceding sentence, if any warranty or representation contained in Section 5.1 was known by the Seller to be untrue or incorrect on the Effective Date or is made untrue or incorrect by affirmative actions or omissions taken by the Seller after the Effective Date and the Buyer elects to terminate this Contract pursuant to the preceding sentence, the Seller shall pay to the Buyer the Pursuit Cost Payment in addition to the refund of the Earnest Money to the Buyer. As used in this Contract, the term "Pursuit Contract of Sale Page 10 of 19 Exhibit A KSl� Cost Payment" shall mean the lesser of (x) the actual out -of- pocket fees, costs and expenses paid by the Buyer to third parties in connection with the negotiation of this Contract and performing due diligence in connection with this Contract; or (y) $5,000. If the Seller promptly notifies the Buyer in writing prior to the Closing or if the Buyer discovers prior to the Closing that any of the warranties and representations contained in Section 5.1 are incorrect and the Buyer does not elect to terminate this Contract, the Buyer conclusively and irrevocably shall be deemed to have accepted the facts or circumstances making the applicable warranty and representation incorrect and to have waived and released all claims against the Seller with respect thereto, including, without limitation, all claims for breach of the applicable warranty and representation. 5.4 Survival Beyond the Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of the Seller contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Deed. ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.1 Performance of the Seller's Obligations. The Buyer is not obligated to perform under this Contract unless, within the designated time periods, the Seller has performed, furnished, or caused to be furnished to the Buyer all items required to be so performed or furnished under other sections of this Contract. 6.2 Breach of the Seller's Representations, Warranties, Covenants and Agreements. The Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of the Seller contained in this Contract are true and correct in all material respects or have been performed in all material respects, as applicable, as of the Closing Date, except where specific reference is made to another date. 6.3 Adverse Change. The Buyer is not obligated to perform under this Contract, if on the date of the Closing, any portion of the Property has been condemned by an entity other than the Buyer, or is the subject of condemnation, eminent domain, or other material proceeding initiated by an entity other than the Buyer, or the Property, or any part thereof, has been materially and adversely impaired in any manner. 6.4 Review Period. The Buyer is not obligated to perform under this Contract if the Buyer delivers notice to the Seller pursuant to Article IV, Section 4.1 that the Buyer has determined that the Property is unsuitable to or for the Buyer's purposes. 6.5 The Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, the Buyer may, at the Buyer's option, elect to waive any of the conditions precedent to the performance of the Buyer's obligations under this Contract of Sale Page 11 of 19 Exhibit Ak. Contract by giving to the Seller, at any time prior to the Closing, a written waiver specifying the waived condition precedent. 6.6 The Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of the Buyer's obligations under this Contract have not been satisfied by the Seller or waived by the Buyer, the Buyer may, by giving written notice to the Seller, terminate this Contract. On the Buyer's termination, the Earnest Money shall be immediately returned to the Buyer by the Title Company. The Seller shall, on written request from the Buyer, promptly issue the instructions necessary to instruct the Title Company to return to the Buyer the Earnest Money and, thereafter, except as otherwise provided in this Contract, the Buyer and the Seller shall have no further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.1 Date and Place of the Closing. The Closing shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as escrowee. The Closing Date shall be on or before 5:00 p.m. seventy five (75) calendar days after the Effective Date, unless otherwise mutually agreed upon by the Buyer and the Seller. 7.2 Items to be Delivered at the Closing. (a) The Seller. At the Closing, the Seller shall deliver or cause to be delivered to the Buyer or the Title Company, at the expense of the party designated, the following items: (i) The Title Policy, in the form specified in Article III, Section 3.6; (ii) The Special Warranty Deed (the "Deed "), substantially in the form as attached as Attachment "1 ", subject only to the Permitted Exceptions, if any, duly executed by the Seller and acknowledged; (iii) Evidence of the Seller's authority to close this transaction; and (iv) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. (b) The Buyer. At the Closing, the Buyer shall deliver to the Seller or the Title Company, the following items: (i) The sum required by Article II, Section 2.1, less the Earnest Money and interest earned thereon, which shall be credited by the Title Company to the payment C',ontract of Sale Page 12 of 19 Exhibit A,. of the Purchase Price, in the form of a check or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.3 Adjustments at the Closing. Notwithstanding anything to the contrary contained in this Contract and without limiting the application of the provisions of Section 5.4 above, the provisions of this Article VII, Section 7.3 shall survive the Closing. Any unpaid ad valorem taxes levied or assessed against the Property for any period prior to the year in which the Closing occurs shall be paid by the Seller prior to or at the Closing. Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between the Seller and the Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at the Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which the Closing shall occur is known, the Seller and the Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that the Seller 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 the date of the Closing) and the Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. 7.4 Possession at the Closing. Possession of the Property shall be delivered to the Buyer at the Closing, subject to the Permitted Exceptions. 7.5 Costs of the Closing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. The Buyer will be responsible for paying fees, costs and expenses for the closing of this transaction. ARTICLE VIII DEFAULTS AND REMEDIES 8.1 The Seller's Defaults and the Buyer's Remedies. (a) The Seller's Defaults. the Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of the Seller's warranties or representations contained in this Contract are untrue in any material respect on the Closing Date; or Contract of Sale Page 13 of 19 Exhibit A (ii) The Seller fails to meet, comply with or materially perform any covenant, agreement, condition precedent or obligation on the Seller's part required within the time limits and in the manner required in this Contract; or (iii) The Seller fails to deliver at the Closing, the items specified in Article VII, Section 7.2(a) of this Contract for any reason other than a default by the Buyer or termination of this Contract by the Buyer pursuant to the terms hereof prior to the Closing. (b) The Buyer's Remedies. If the Seller is in default under this Contract, the Buyer as the Buyer's sole and exclusive remedies for the default, may, at the Buyer's sole option, do any of the following: (i) Terminate this Contract by written notice delivered to the Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and the Seller shall, promptly on written request from the Buyer, execute and deliver any documents necessary to cause the Title Company to return to the Buyer the Earnest Money; and (ii) Enforce specific performance of this Contract against the Seller, requiring the Seller to convey the Property to the Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment, whereupon the Buyer shall waive title objections, if any, and accept such title without reduction in Purchase Price on account of title defects and shall be entitled to assert any rights for damages based on the Seller's representations, warranties and obligations that are not waived by the Buyer by its acceptance of the Seller's title. 8.2 The Buyer's Default and the Seller's Remedies. (a) The Buyer's Default. the Buyer is in default under this Contract if the Buyer fails to deliver at the Closing, the items specified in Article VII, Section 7.2(b) of this Contract for any reason other than a default by the Seller under this Contract or termination of this Contract by the Buyer pursuant to the terms hereof prior to the Closing. (b) The Seller's Remedy. If the Buyer is in default under this Contract, the Seller, as the Seller's sole and exclusive remedies for the default, may, at the Seller's sole option, do either one of the following: (i) Terminate this Contract by written notice delivered to the Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and the Buyer shall, promptly on written request from the Seller, execute and deliver any documents necessary to cause the Title Company to return to the Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against the Buyer. Exhibit A ,. �" ARTICLE IX MISCELLANEOUS 9.1 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Mr. John K. Pearcy Prescott Interests, Ltd. 7979 Inwood Rd., Suite 225 Dallas, Texas 75209 -3376 Fax (214) 350 -9977 Copies to: For the Seller: Richard M. Dooley Dooley & Assoc. 11882 Greenville Ave., Suite 106B Dallas, Texas 75243 -3567 Fax (214) 750 -5141 BUYER: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Fax: (940) 349 -8951 For the Buyer: Larry Collister, Deputy City Attorney City of Denton Legal Department 215 E. McKinney St. Denton, Texas 76201 Fax: (940) 382 -7923 9.2 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE IS, IN DENTON COUNTY, TEXAS. 9.3 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 9.4 Parties Bound. This Contract is binding upon and inures to the benefit of the Seller and the Buyer, and their respective successors and assigns. Contract of Sale Page 15 of 19 Exhibit A 9.5 Risk of Loss. If any damage or destruction to the Property shall occur prior to the Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than the Buyer that might result in the taking of any portion of the Property, the Buyer may, at the Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to the Buyer; or (b) Consummate this Contract, in which case the Buyer, with respect to the Property, shall be entitled to receive any (i) in the case of damage or destruction, all insurance proceeds; and (ii) in the case of eminent domain, proceeds paid for the Property related to the eminent domain proceedings. The Buyer shall have a period of up to ten (10) calendar days after receipt of written notification from the Seller on the final settlement of all condemnation proceedings or insurance claims related to damage or destruction of any improvement located on the Property, in which to make the Buyer's election. In the event the Buyer elects to close prior to such final settlement, then the Closing shall take place as provided in Article VII, above, and there shall be assigned by the Seller to the Buyer at Closing all interests of the Seller in and to any and all insurance proceeds or condemnation awards which may be payable to the Seller on account of such event. In the event the Buyer elects to close upon this Contract after final settlement, as described above, Closing shall be held five (5) business days after such final settlement. 9.6 Further Assurances. In addition to the acts and deeds recited in this Contract and contemplated to be performed, executed and /or delivered by the Seller and the Buyer, the Seller and the Buyer agree to perform, execute and /or deliver, or cause to be performed, executed and /or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated. Notwithstanding anything to the contrary contained in this Contract and without limiting the application of the provisions of Section 5.4, above, the provisions of this Article IX, Section 9.6 shall survive the Closing. 9.7 Time is of the Essence. It is expressly agreed between the Buyer and the Seller that time is of the essence with respect to this Contract. 9.8 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 9.9 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by the Buyer under this Contract, including without limitation, adjustment of the Contract of Sale Page 16 of 19 Exhibit A Closing Date, are delegated by the Buyer, pursuant to action by the City Council of Denton, Texas, to Frank Payne, P.E., City Engineer of the Buyer, or his designee. 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties may execute this Agreement by signing any such counterpart. 9.11 Business Days. If the Closing Date or the day of performance required or permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. 9.12 Threat of Condemnation. The Seller and the Buyer acknowledge and agree that this Contract and the sale /purchase transaction contemplated herein was made under threat of condemnation. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] Exhibit A Signed on the day of July, 2015. SELLER: PRESCOTT INTERESTS, LTD., a Texas limited partnership By: Carlisle Acquisitions, Inc., a Texas corporation, its General Partner Bymsµ, Name > Title BUYER: CITY OF DENTON, TEXAS, a Texas home rule municipal corporation Signed on the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY I Contract of Sale Page 18 of 19 affa GEORGE C. CAMPBELL CITY MANAGER RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of an executed copy of this Contract. Title Company agrees to comply with, and be bound by, the terms and provisions of this Contract and to perform its duties pursuant to the provisions of this Contract 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: Title Resources 525 South Loop 288, Suite 125 Denton, Texas Phone: 940/381-1006 Fax: Printed Name: Title: Contract receipt date: , 2015 Contract of Sale Page 19 of 19 Exhibit A Doc -59777 EXH I BIT A Property Description Tract 1: BEING a 1.12 acre tract of land situated in the R. B. Longbottom Survey, Abstract No. 775, in the City of Denton, Denton County, Texas, being a portion of Lot 1, East Industrial Plaza, an addition to the City of Denton, according to the plat thereof recorded in Volume 13, Page 18, and being a portion of that certain called 5.081 acre tract of land conveyed to Loop 288, Ltd. by deed recorded in Volume 4990, Page 1387, County Clerk's File No. 2001- R0139008, of the Deed Records of Denton County, Texas, and being a portion of that certain called 1.338 acre tract of land conveyed to Loop 288, Ltd. by deed recorded in Volume 4990, Page 1393, County Clerk's File No. 2001- R139009 of the Deed Records of Denton County, Texas, and being more particularly described by metes and bounds as follows: COMMENCING at a point for the southwest corner of said Lot 1, same being the southwest corner of said called 1.338 acre tract, and being at the northwest intersection of U.S. 380 (University Drive) (a 200.00 foot right -of -way), and Virginia Street (a 42.00 foot right -of -way), and being in a curve to the left having a radius of 3557.18 feet, and a delta angle of 00 degrees 07 minutes 28 seconds; THENCE along said northerly right -of -way line of said U.S. 380 (University Drive), and the said south line of said called 1.338 acre tract, and along said curve to the left an arc distance of 7.74 feet and a chord bearing and distance of South 83 degrees 31 minutes 07 seconds East, 7.74 feet to a 1/2 -inch iron rod set for the POINT OF BEGINNING; THENCE North 07 degrees 11 minutes 08 seconds West, through the interior of said called 1.338 acre tract, and said Lot 1, a distance of 194.79 feet to a 1/2 -inch iron rod set for corner; THENCE North 82 degrees 26 minutes 05 seconds East, continuing through the interior of said called 1.338 acre tract, and said Lot 1, a distance of 96.63 feet to a rail road spike found for corner; THENCE North 69 degrees 20 minutes 58 seconds East, continuing through the interior of said called 1.338 acre tract, and said Lot 1, a distance of 14.72 feet to a rail road spike found for corner; THENCE South 20 degrees 39 minutes 02 seconds East, continuing through the interior of said called 1.338 acre tract, and said Lot 1, a distance of 44.49 feet to a rail road spike found for corner; THENCE North 82 degrees 26 minutes 05 seconds East, continuing through the interior of said called 1.338 acre tract, and said Lot 1, passing the common line of said called 1.338 acre tract, and said called 5.081 acre tract, and continuing a total distance of 137.06 feet to a 1/2 -inch iron rod found for corner; Exhibit A, Page l Exhibit A" Doc -59777 THENCE South 02 degrees 04 minutes 40 seconds West, through the interior of said called 5.081 acre tract, and passing the common line of said called 5.081 acre tract, and said called 1.338 acre tract, a total distance of 206.04 feet to a 1/2 -inch iron rod found for corner, said point being in the south line of said called 1.338 acre tract, same being in the north right -of -way line of said U.S. 380 (University Drive), and being in a curve to the right having a radius of 3557.18 feet, and a delta angle of 03 degrees 42 minutes 20 seconds; THENCE along the south line of said called 1.338 acre tract, and the north right -of -way line of said U.S. 380 (University Drive), an arc distance of 230.06 feet, and a chord bearing and distance of North 85 degrees 25 minutes 49 seconds West, 230.02 feet to the POINT Or BEGINNING, and containing 48,641 square feet or 1.12 acres of computed land, more or less. Tract 2• Non - Exclusive easement interest created pursuant to that Declaration of Restrictions and Grant of Easements dated as of December 21, 2001, by and between Loop 288, Ltd., a Texas limited partnership, and Albertson's Inc., a Delaware corporation, filed December 26, 2001, as Document Number 2001- R0139013, as Volume 4990, Page 1424, Real Property Records of Denton County, Texas. Exhibit A, Page 2 Exhibit A` °,� Doc -8722 EXHIBIT B LEGAL DESCRIPTION OF PRICVIISES STORE 4216 TRACT 1: SHOPPING CENTER PARCEL 2: BEING A 8.666 ACRE TRACT OF LAND SITUATED IN THE R.B. LONGBOTTOM SURVEY, ABSTRACT NO. 775 AND THE CASWEL CARTER SURVEY, ABSTRACT NO. 275, CITY OF DENTON, DENTON COUNTY, TEXAS AND BEING A PORTION OF LOT 1 AND ALL OF LOT 2, OF EAST INDUSTRIAL PLAZA, AN ADDITION TO THE CITY OF DENTON DESCRIBED BY PLAT RECORDED IN VOLUME 13, PAGE 18, PLAT RECORDS DENTON COUNTY, TEXAS ( PRDCT), A PORTION OF LOT 1, BLOCK 1 OF SOUTHLAND -288 ADDITION, AN ADDITION TO THE CITY OF DENTON DESCRIBED BY PLAT RECORDED IN CABINET G, PAGE 123, PRDCT, A PORTION OF THAT CALLED 5.091 ACRE TRACT OF LAND DESCRIBED IN DEED TO JOHNSON FAMILY PARTNERS, LTD, RECORDED IN COUNTY CLERK'S FILE NO. (CCFN) 93- R0071402, DEED RECORDS OF DENTON COUNTY, TEXAS (DRDCT) AND A PORTION OF THAT CALLED 3.394 ACRE TRACT OF LAND DESCRIBED IN DEED TO MICH- TEX PROPERTIES RECORDED IN VOLUME 1829, PAGE 462, DRDCT, SAID 8.666 ACRE TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A TEXAS DEPARTMENT OF TRANSPORTATION CONCRETE MONUMENT FOUND FOR THE NORTHEAST CORNER OF SAID 3.394 ACRE TRACT OF LAND AND BEING THE POINT OF INTERSECTION OF THE WESTERLY RIGHT -OF -WAY LINE OF LOOP 288, (A VARIABLE WIDTH RIGHT -OF -WAY) WITH THE SOUTHEASTERLY RIGHT -OF -WAY LINE OF THE TEXAS & PACIFIC RAILROAD, (A 100 -FOOT RIGHT -OF -WAY); THENCE ALONG SAID WESTERLY RIGHT -OF -WAY LINE OF LOOP 288 THE FOLLOWING; SOUTH 02`08'46 WEST, A DISTANCE OF 405.70 FEET TO A TEXAS DEPARTMENT OF TRANSPORTATION CONCRETE MONUMENT FOUND FOR CORNER; NORTH 88 043'53" WEST, A DISTANCE OF 55.16 FEET TO A TEXAS DEPARTMENT OF TRANSPORTATION CONCRETE RIGHT- OF-WAY MONUMENT FOUND FOR CORNER; SOUTH 02 °02'07" WEST, AT A DISTANCE OF 316.42 FEET PASSING A 112 -INCH IRON ROD FOUND FOR THE NORTHEAST CORNER OF SAID LOT 1, BLOCK 1, SOUTHLAND -288 ADDITION, CONTINUING IN ALL FOR A TOTAL DISTANCE OF 345.02 FEET TO A TO A TEXAS DEPARTMENT OF TRANSPORTATION CONCRETE MONUMENT FOUND FOR THE NORTHEAST CORNER OF THAT CERTAIN TRACT OF LAND DESCRIBED IN A DEED TO KENNETH KEESE RECORDED IN VOLUME 1392, PAGE 750, DRDCT; THENCE SOUTH 89 017'22" WEST ALONG THE COMMON LINE OF SAID 3.394 ACRE TRACT OF LAND AND SAID KEESE TRACT OF LAND, AT A CALCULATED DISTANCE OF 29.57 FEET PASSING THE NORTHWEST CORNER OF SAID KEESE TRACT OF LAND SAME BEING THE NORTHEAST CORNER OF THAT TRACT OF LAND DESCRIBED IN DEED TO KENNETH KEESE RECORDED IN VOLUME 665, PAGE 497, DRDCT, CONTINUING ALONG THE COMMON LINE OF SAID 3 394 ACRE TRACT OF LAND AND SAID KEESE TRACT OF LAND IN ALL FOR A TOTAL DISTANCE OF 79.57 FEET TO A 518 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" FOUND FOR CORNER; Stun 4 4216 6 543 0 - 0034.Q,EG AL 19 87 6 682.2 ;wa EXHIBIT BY 1 OF 4 Doc -8722 THENCE NORTH 01 °29'04 EAST, AD [STANCE OF 35.81 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR CORNER; THENCE NORTH 89 °23'57" WEST, A DISTANCE OF 179.24 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR CORNER; THENCE SOUTH 82 026'05" WEST, A DISTANCE OF 153.79 FEET TO A 518 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR CORNER; THENCE NORTH 20 °39'02" WEST, A DISTANCE OF 44,49 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR CORNER; THENCE SOUTH 69 °20'58" WEST, A DISTANCE OF 14.72 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR CORNER; THENCE SOUTH 82 °26'05" WEST, A DISTANCE OF 104.13 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET IN THE EASTERLY RIGHT -OF -WAY LINE OF VIRGINIA STREET (A 50 -FOOT RIGHT -OF -WAY); THENCE NORTH 07 °11'08" WEST ALONG SAID EASTERLY RIGHT -OF WAY LINE, AT A DISTANCE OF 49.65 FEET PASSING A 112 -INCH IRON ROD FOUND FOR THE NORTHWEST CORNER OF SAID LOT 1, SAME BEING THE MOST SOUTHERLY SOUTHWEST CORNER OF SAID LOT 2, EAST INDUSTRIAL PLAZA, CONTINUING IN ALL FOR A TOTAL DISTANCE OF 119.72 FEET TO A 5/8- INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" FOUND FOR AN INTERIOR ELL CORNER OF SAID LOT 2 SAME BEING THE NORTHEAST CORNER OF SAID VIRGINIA STREET; THENCE SOUTH 82 °48'52" WEST ALONG THE COMMON LINE OF SAID LOT 2 AND SAID VIRGINIA STREET, A DISTANCE OF 42.04 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR THE MOST WESTERLY SOUTHWEST CORNER OF SAID LOT 2, SAME BEING THE MOST EASTERLY SOUTHEAST CORNER OF LOT 3 OF SAID EAST INDUSTRIAL PLAZA; THENCE NORTH 08 °22'34" WEST ALONG THE COMMON LINE OF SAID LOT 2 AND SAID LOT 3, AT A DISTANCE OF 324.09 FEET PASSING A 1/2 -INCH IRON ROD FOUND, CONTINUING IN ALL FOR A TOTAL DISTANCE OF 324.72 FEET TO A 5/8 -INCH ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR THE NORTHEAST CORNER OF SAID LOT 3, SAME BEING THE NORTHWEST CORNER OF SAID LOT 2 AND BEING IN THE SOUTHEASTERLY RIGHT -OF -WAY LINE OF THE AFOREMENTIONED TEXAS & PACIFIC RAILROAD; THENCE NORTH 69 015'46" EAST ALONG THE COMMON LINE OF SAID LOT 2 SAID SOUTHEASTERLY RIGHT -OF -WAY LINE, A DISTANCE OF 49.52 FEET TO AN AXLE FOUND FOR THE NORTHEAST CORNER OF SAID LOT 2, SAME BEING THE NORTHWEST CORNER OF THE AFOREMENTIONED 5.091 ACRE TRACT OF LAND; THENCE NORTH 69 °20'58" EAST ALONG THE COMMON LINE OF SAID 5 -091 ACRE TRACT OF LAND AND SAID SOUTHEASTERLY RIGHT -OF -WAY LINE, AT A CALCULATED DISTANCE OF 461.93 FEET PASSING THE NORTHEAST CORNER OF SAID 5.091 ACRE TRACT OF LAND SAME BEING THE NORTHWEST CORNER OF THE AFOREMENTIONED 3.394 ACRE TRACT OF LAND, CONTINUING ALONG THE COMMON LINE OF SAID 3.394 ACRE TRACT OF LAND AND SAID SOUTHEASTERLY RIGHT -OF -WAY LINE IN ALL FOR A TOTAL DISTANCE OF 730.19 FEET TO THE POINT OF BEGINNING; CONTAINING A COMPUTED AREA OF 8.666 ACRES OF LAND OF WHICH 0.021 OF AN ACRE OF LAND LIES WITHIN A PROPOSED RIGHT -OF -WAY DEDICATION, LEAVING A NET COMPUTED AREA OF 8.645 ACRES OF LAND. TRACT 2: ;wa EXHIBIT BY 2 OF 4 Doc -8722 SHOPPING CENTER PARCEL 2A: BEING A 0.955 OF AN ACRE TRACT OF LAND SITUATED IN THE R.B. LONGBOTTOM SURVEY, ABSTRACT NO. 775, CITY OF DENTON, DENTON COUNTY, TEXAS AND BEING A PORTION OF LOT 1, OF EAST INDUSTRIAL PLAZA, AN ADDITION TO THE CITY OF DENTON DESCRIBED BY PLAT RECORDED IN VOLUME 13, PAGE 18, PLAT RECORDS DENTON COUNTY, TEXAS ( PRDCT), A PORTION OF LOT 1, BLOCK 1 OF SOUTHLAND -288 ADDITION, AN ADDITION TO THE CITY OF DENTON DESCRIBED BY PLAT RECORDED IN CABINET G, PAGE 123, PRDCT, A PORTION OF THAT CALLED 5.091 ACRE TRACT OF LAND DESCRIBED IN DEED TO JOHNSON FAMILY PARTNERS, LTD. RECORDED IN COUNTY CLERK'S FILE NO. (CCFN) 93- R0071402, DEED RECORDS OF DENTON COUNTY, TEXAS (DRDCT) AND A PORTION OF THAT CALLED 3.394 ACRE TRACT OF LAND DESCRIBED IN DEED TO MICH -TEX PROPERTIES RECORDED IN VOLUME 1829, PAGE 462, DRDCT, SAID 0.955 OF AN ACRE TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A TEXAS DEPARTMENT OF TRANSPORTATION CONCRETE MONUMENT FOUND FOR THE NORTHEAST CORNER OF SAID 3.394 ACRE TRACT OF LAND AND BEING THE POINT OF INTERSECTION OF THE WESTERLY RIGHT -OF -WAY LINE OF LOOP 288, (A VARIABLE WIDTH RIGHT -OF -WAY) WITH THE SOUTHEASTERLY RIGHT -OF -WAY LINE OF THE TEXAS & PACIFIC RAILROAD, (A 100 -FOOT RIGHT -OF -WAY); THENCE ALONG SAID WESTERLY RIGHT -OF -WAY LINE OF LOOP 288 THE FOLLOWING; SOUTH 02 °08'46" WEST, A DISTANCE OF 405.70 FEET TO A TEXAS DEPARTMENT OF TRANSPORTATION CONCRETE MONUMENT FOUND FOR CORNER; NORTH 88 °43'53" WEST, A DISTANCE OF 55.16 FEET TO A TEXAS DEPARTMENT OF TRANSPORTATION CONCRETE RIGHT -OF -WAY MONUMENT FOUND FOR CORNER; SOUTH 02 002'07" WEST, AT A DISTANCE OF 316.42 FEET PASSING A 112 -INCH IRON ROD FOUND FOR THE NORTHEAST CORNER OF SAID LOT 1, BLOCK 1, SOUTHLAND -288 ADDITION, CONTINUING IN ALL FOR A TOTAL DISTANCE OF 345.02 FEET TO A TEXAS DEPARTMENT OF TRANSPORTATION CONCRETE MONUMENT FOUND FOR THE NORTHEAST CORNER OF THAT CERTAIN TRACT OF LAND DESCRIBED IN A DEED TO KENNETH KEESE RECORDED IN VOLUME 1392, PAGE 750, DRDCT; THENCE SOUTH 89 °17'22" WEST ALONG THE COMMON LINE OF SAID 3.394 ACRE TRACT OF LAND AND SAID KEESE TRACT OF LAND, AT A CALCULATED DISTANCE OF 29.57 FEET PASSING THE NORTHWEST CORNER OF SAID KEESE TRACT OF LAND SAME BEING THE NORTHEAST CORNER OF THAT TRACT OF LAND DESCRIBED IN DEED TO KENNETH KEESE RECORDED IN VOLUME 665, PAGE 497, DRDCT, CONTINUING ALONG THE COMMON LINE OF SAID 3.394 ACRE TRACT OF LAND AND SAID KEESE TRACT OF LAND IN ALL FOR A TOTAL DISTANCE OF 79.57 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" FOUND FOR POINT OR BEGINNING; THENCE SOUTH 00 °28'53" EAST CONTINUING ALONG SAID COMMON LINE, A DISTANCE OF 174.29 FEET TO A 518 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" FOUND IN THE NORTHERLY LINE OF U.S. HIGHWAY NO. 380 (UNIVERSITY DRIVE -A VARIABLE WIDTH RIGHT -OF -WAY) AND BEING THE POINT OF CURVATURE OF A NON - TANGENT CURVE TO THE RIGHT HAVING A RADIUS POINT WHICH BEARS NORTH 00 °31'11" WEST, A DISTANCE OF 3557.18 FEET; THENCE NORTHWESTERLY ALONG SAID NORTHERLY RIGHT -OF -WAY LINE OF U.S., HIGHWAY NO. 380 NORTHWESTERLY WITH SAID CURVE TO THE RIGHT AT AN ARC DISTANCE OF 60.04 FEET PASSING THE SOUTHWEST CORNER OF SAID SOUTHLAND -288 ADDITION, SAME BEING THE SOUTHEAST CORNER OF SAID 5.091 ACRE TRACT OF LAND FROM. WHICH A 112 -INCH IRON ROD FOUND BEARS NORTH 02 °25' EAST, A DISTANCE OF 0.71 FEET, AT AN ARC DISTANCE OF ;wa EXHIBIT B, 3 OF 4 Doc -8722 148.49 FEET PASSING THE SOUTHWEST CORNER OF SAID 5.091 ACRE TRACT OF LAND SAME BEING THE SOUTHEAST CORNER OF THE AFOREMENTIONED LOT 1, EAST INDUSTRIAL ADDITION FROM WHICH A 518 -INCH IRON ROD FOUND BEARS SOUTH 31 "21' EAST, A DISTANCE OF 0.21 FEET, CONTINUING IN ALL THROUGH ATOTAL CENTRAL ANGLE OF 03 "14'12" FOR A TOTAL ARC DISTANCE OF 200.95 FEET, A TOTAL CHORD BEARING OF NORTH 88 °54'05" WEST AND A TOTAL CHORD DISTANCE OF 200.93 FEET TO A 518 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR CORNER; THENCE NORTH 02 °04'40" EAST, A DISTANCE OF 206.04 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR CORNER; THENCE NORTH 82 °26'05" EAST, A DISTANCE OF 16.72 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS" SET FOR CORNER; THENCE SOUTH 89 °23'57" EAST, A DISTANCE OF 179.24 FEET TO A 5/8 -INCH IRON ROD WITH CAP STAMPED "BURY +PARTNERS' SET FOR CORNER; THENCE SOUTH 01'29'04" WEST, A DISTANCE OF 35.81 FEET TO THE POINT OF BEGINNING; CONTAINING A COMPUTED AREA OF 0.955 OF AN ACRE OF LAND. TRACT 3: RECIPROCAL EASEMENT INTEREST: NON- EXCLUSIVE EASEMENT INTEREST CREATED PURSUANT TO THAT CERTAIN DECLARATION OF RESTRICTIONS AND GRANT OF EASEMENTS DATED DECEMBER 21, 2001, BY AND BETWEEN LOOP 288, LTD., A TEXAS LIMITED PARTNERSHIP AND ALBERTSON'S, INC., A DELAWARE CORPORATION, FILED DECEMBER 26, 2001, IN VOLUME 4990, PAGE 1424, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS. ;wa EXHIBIT BY 4 OF 4 EXH I BIT C Tracts numbered 78289, 241478, 39393, 241477, 168132, & 35998 represent the property described in Exhibits A & B. These numbers are from the Denton Central Appraisal District's website and are shown as being owned by Grantor. Exhibit A ATTACHMENT "I" TO CONTRACT OF SALE 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 § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS That Prescott Interests, Ltd., a Texas limited partnership, ( "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 ( "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which is acknowledged, subject to the reservations set forth below, has GRANTED, SOLD and CONVEYED, and does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described on Exhibit "A" attached and made a part 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 (collectively, the "Property "). Notwithstanding the foregoing or anything else to the contrary contained in this Deed, the Property does not include any of the oil, gas and other minerals underlying or which are part of the Property. This conveyance is subject to the following: (All of those Exceptions from Coverage found on Schedule B of the Owners Title Policy to which referenced is made for all purposes and incorporated by reference.) Exhibit A TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does bind Grantor and Grantor's successors 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 when the claim is by, through, or under Grantor but not otherwise. EXECUTED the day of , 2015 GRANTOR: PRESCOTT INTERESTS, LTD, a Texas limited partnership By and through its general partner, CARLISLE ACQUISITIONS, INC., a Texas corporation State of Texas § County of § This instrument was acknowledged before on the day of ........ 2015, by . ........ � . [name], as _ y [title] of Carlisle Acquisitions, Inc, a Texas corporation, on behalf of said corporation, and the corporation executed this instrument as the general partner of Prescott Interests, Ltd., a Texas limited partnership, on behalf of said limited partnership. Special Warranty Deed Page 2 of 4 Exhibit A '& ^) Notary Public, State of Texas Upon Filing Return To: Send Tax Billing Statements To: The City of Denton - Engineering The City of Denton Attn: Paul Williamson Attn: Finance Department 901 -A Texas Street 215 East McKinney Street Denton, TX 76209 Denton, Texas 76201 .............. _ Special Warranty Deed Page 3 of 4 Exhibit A Exhibit "A" PAGE 1 to SAID [TO BE ADDED AFTER SURVEY AND TITLE WORK COMPLETED] Special Warranty Deed Page 4 of 4 wa City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: ID 15 -555, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: August 4, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for street milling services for the City of Denton; and providing an effective date (RFP 5846- awarded to Dustrol, Inc. in the three (3) year not -to- exceed amount of $400,000). RFP INFORMATION This Request for Proposal is for an annual contract for Street Milling Services. The services consist of cutting existing street asphalt pavement to the proper lines, grade, and depth. The milling machine grinds and loads the recyclable material into trucks for future use. The City of Denton furnishes support services such as supervision and traffic control. Requests for Proposals were sent to 59 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Two (2) proposals meeting specifications were received. The proposals were evaluated based upon published criteria including price, compliance with specifications, and indicators of probable performance. Dustrol, Inc. has provided street milling services to the City for several years. An acceptable level of service has consistently been provided by the vendor, including minimal annual price increases. A Best and Final Offer was conducted with both vendors which resulted in no changes to the offers. Dustrol, Inc. was ranked the highest and determined to be the best value for the City of Denton. RECOMMENDATION Staff recommends awarding to the contract for Street Milling Services to Dustrol, Inc. in the three (3) year not - to- exceed amount of $400,000. PRINCIPAL PLACE OF BUSINESS Dustrol, Inc. Roanoke, TX City of Denton Page 1 of 2 Printed on 7/30/2015 File M ID 15 -555, Version: 1 ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) year contract with options to extend the contract for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION Individual projects will be funded as needed from Street Capital Project accounts numbers designated for street milling projects. EXHIBITS Exhibit l: Evaluation/Ranking sheet Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Keith Gabbard at 349 -7144. City of Denton Page 2 of 2 Printed on 7/30/2015 .-i x W O m m W N V L Ob AW W L N L t Ob �L a ct> 00 LM a LL ix C N •Q' a v 0 N N V i5 N 3 3 v V 0 O 0 v a, O N i5 i5 � L N a v V ; CL W LO M N -I N I.n M c W O O 1= L) a O N V N Q CL 0 uj o a 3 ° D N O U i [0 p J E u v O O Ln Ln N N Ln 00 00 00 00 °CP C ° O 0 0 (3) 0 0 ON 0 00 0 U z' M i N N U) Qj C -1 rr H i y m O O c) = U N o n O x � _ O H AA N N N O O O O V x M M O O O O O Ln 3 >- Ln r-i i-I 00 C cr m LO O v s i 'L U U -a _0 _0 a C C Z) m m no c c en c O 1 .2 -o c M - o m o v p a� Si u ci o O Z, m Z) QJ 7 O Ln Y U N a Y u +l U O- cY Q v CL O � L L u v Q > = > o a; v Z) CL = cu U N ,E N N 6 is v _0 *' -O O O O CL > 7 N u C M 7 L H QJ p T u O - O I- N v O N v N 00 7 bo a v m v U >` � E m = v U v cu O M O O M N f0 ccu G M C: m m C 00 Nb N :6 a N 16 C _ m O O O u O 2 4 N V E O � w = w = f0 N O to z 0J to C O O N N N N m C = M 0 m o _ a U d W M v c C O 'U Q� N N m - v cr- a C N •Q' a v 0 N N V i5 N 3 3 v V 0 O 0 v a, O N i5 i5 � L N a v V ; CL W LO M N -I N I.n M c W O O 1= L) a O N V N Q CL 0 uj o a 3 ° D N O U i [0 p J E u v O O Ln Ln N N Ln EXHIBIT 2 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR STREET MILLING SERVICES FOR THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE (RFP 5846- AWARDED TO DUSTROL, INC. IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $400,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for the supply of Street Milling Services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 5846 Dustrol, Inc. $400,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. EXHIBIT 2 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 File 5846 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved proposals. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY _ A BY: EXHIBIT 3 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND DUSTROL, INC. (RFP 5846) THIS CONTRACT is made and entered into this day of A.D., 2015, by and between Dustrol, Inc., a corporation, whose address is P.O. Box 1728, Roanoke, Texas 76262, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a home rule municipal corporation, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows:, SCOPE OF SERVICES Supplier shall provide products and/or services in accordance with the City's document RFP 5846-Street Milling Services, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes. The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "All); (b) Request for Proposal (Exhibit "B" on File at the Office of the Purchasing Agent); (c) City of Denton Standard Terms and Conditions (Exhibit "C"); (d) Insurance Requirements (Exhibit "D"); (e) Form CIQ — Conflict of Interest Questionnaire (Exhibit "E"); (f) Contractor's Proposal. (Exhibit "F"); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to the written agreement then to the contract documents in the order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." File # 5846 EXHIBIT 3 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: JENNIFER WALTERS, CITY SECRETARY M" [62AMM $0111140TIM RN CONTRACTOR BY: 44nt� t AUTHORIZM SIGNATURE Date: -I - $ (--1 — ) S Name: Kevin Koehler Corporate Secretary Title: M3411=10634 M-1-1 CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER EXHIBIT 3 Exhibit A Special Terms and Conditions Total Contract Amount The contract total for services shall not exceed $400,000. Pricing shalt be per Exhibit F attached. Contract Terms The contract term will be one (1) year, effective ftom date of award. The City and the Supplier shall have the option to renew this contract for an additional two (2) one-year periods. The contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date. At the sole option of the City of Denton, the contract may be further extended as needed, not to exceed a total of six (6) months. Price Escalation and De-escalation The City will implement an escalation/de- escalation price adjustment annually. Any request for price adjustment must be based on the following indices: 1) U.S. Energy Information Administration (EIA) prior 52 week average for Midwest (PADD 2) for retail diesel (on- highway) — all types 2) U.S Department of Labor, Bureau of Labor Statistics, Employment Cost Index (ECI) for Total Compensation, Private Industry Construction Workers decreased based upon the annual percentage change in the combined indices. The price adjustment will be determined annually at the contract renewal date. The maximum escalation will not exceed +/- 8% for any individual year. Should the indices change exceed a minimum threshold value of +/-1%, then the stated eligible bid prices shall be adjusted in accordance with the combined indices change not to exceed the 8% limit per year. The service provider should provide documentation as percentage of each cost associated with the unit prices quoted for consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. If no request is made, then it will be assumed that the bid price will be in effect. Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items fi-om the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre-price increase, prices must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. The request can be sent by e-mail to: purchasing@cityofdenton.com noting RFP 5846. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. File # 5846 EXHIBIT 3 Exhibit C Standard Purchase Terms and Conditions These standard Terms and Conditions and the Terms and Conditions, Specifications, Drawings and other requirements included in the City of Denton's contract are applicable to contracts/purchase orders issued by the City of Denton hereinafter referred to as the City or Buyer and the Seller or respondent herein after referred to as Contractor or Supplier. Any deviations must be in writing and signed by a representative of the City's Procurement Department and the Supplier. No Terms and Conditions contained in the seller's proposal response, invoice or statement shall serve to modify the terms set forth herein. If there is a conflict between the provisions on the face of the contract/purchase order these written provisions will take precedence. The Contractor agrees that the contract shall be governed by the following terms and conditions, unless exceptions are duly noted and fully negotiated. Unless otherwise specified in the contract, Sections 3, 4, 5, 6, 7, 8, 20, 21, and 36 shall apply only to a solicitation to purchase goods, and sections 9, 10, 11, 22 and 32 shall apply only to a solicitation to purchase services to be performed principally at the City's premises or on public rights-of-way. 1. CONTRACTOR'S OBLIGATIONS. The Contractor shall fully and timely provide all deliverables described in the Solicitation and in the Contractor's Offer in strict accordance with laws, rules, and regulations. 2. EFFECTIVE DATE/TERM. Unless otherwise specified in the Solicitation, this Contract shall be effective as of the date the contract is signed by the City, and shall continue in effect until all obligations are performed in accordance with the Contract. 3. CONTRACTOR TO PACKAGE DELIVERABLES: The Contractor will package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and unit price unless otherwise provided in the Specifications or Supplemental Terms and Conditions, each shipping container shall be clearly and permanently marked as follows: (a) The Contractor's name and address, (b) the City's name, address and purchase order or purchase release number and the price agreement number if applicable, (c) Container number and total number of containers, e.g. box I of 4 boxes, and (d) the number of the container bearing the packing list. The Contractor shall bear cost of packaging. Deliverables shall be suitably packed to secure lowest transportation costs and to conform, to all the requirements of common carriers and any applicable specification. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. SHIPMENT UNDER RESERVATION PROHIBITED: The Contractor is not authorized to ship the deliverables under reservation and no tender of a bill of lading will operate as a tender of deliverables. 5. TITLE & RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables. WRIZAT01I EXHIBIT 3 6. DELIVERY TERMS AND TRANSPORTATION CHARGES: Deliverables shall be shipped F.O.B. point of delivery unless otherwise specified in the Supplemental Terms and Conditions. Unless otherwise stated in the Offer, the Contractor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship the deliverables. The place of delivery shall be that set forth the purchase order. 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including, but not limited to the Uniform Commercial Code, to inspect the deliverables at delivery before accepting them, and to reject defective or non-conforming deliverables. If the City has the right to inspect the Contractor's, or the Contractor's Subcontractor's, facilities, or the deliverables at the Contractor's, or the Contractor's Subcontractor's, premises, the Contractor shall furnish, or cause to be furnished, without additional charge, all reasonable facilities and assistance to the City to facilitate such inspection. 8. NO REPLACEMENT OF DEFECTIVE TENDER: Every tender or delivery of deliverables must fully comply with all provisions of the Contract as to time of delivery, quality, and quantity. Any non-complying tender shall constitute a breach and the Contractor shall not have the right to substitute a conforming tender; provided, where the time for performance has not yet expired, the Contractor may notify the City of the intention to cure and may then make a conforming tender within the time allotted in the contract. 9. PLACE AND CONDITION OF WORK: The City shall provide the Contractor access to the sites where the Contractor is to perform the services as required in order for the Contractor to perform the services in a timely and efficient manner, in accordance with and subject to the applicable security laws, rules, and regulations. The Contractor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of materials, equipment, labor and facilities necessary to perform the services, and any other condition or state of fact which could in any way affect performance of the Contractor's obligations under the contract, The Contractor hereby releases and holds the City harmless from and against any liability or claim for damages of any kind or nature if the actual site or service conditions differ from expected conditions. The contractor shall, at all times, exercise reasonable precautions for the safety of their employees, City Staff, participants and others on or near the City's facilities. 10. WORKFORCE A. The Contractor shall employ only orderly and competent workers, skilled in the performance of the services which they will perform under the Contract, B. The Contractor, its employees, subcontractors, and subcontractor's employees may not while engaged in participating or responding to a solicitation or while in the course and scope of delivering goods or services under a City of Denton contract or on the City's property . i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the contract; or ii. use or possess alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. File # 5846 EXHIBIT 3 C. If the City or the City's representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from Contract services, and may not employ such worker again on Contract services without the City's prior written consent. Immigration: The Contractor represents and warrants that it shall comply with the requirements of the Immigration Reform and Control Act of 1986 and 1990 regarding employment verification and retention of verification forms for any individuals hired on or after November 6, 1986, who will perform any labor or services under the Contract and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA) enacted on September 30, 1996, 11. COMPLIANCE WITH HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS: The Contractor, it's Subcontractors, and their respective employees, shall comply fully with all applicable federal, state, and local health, safety, and environmental laws, ordinances, rules and regulations in the performance of the services, including but not limited to those promulgated by the City and by the Occupational Safety and Health Administration (OSHA). In case of conflict, the most stringent safety requirement shall govern. The Contractor shall indemnify and hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liability of every kind arising from the breach of the Contractor's obligations under this paragraph. standards, orders, or regulations issued pursuant to the mandates of the Clean Air Act (42 U.S.C. §7401 et seq.) and the Federal Water Pollution Control Act, as amended, (33 U.S.C. §1251 et seq.). 12. INVOICES: A. The Contractor shall submit separate invoices in duplicate on each purchase order or purchase release after each delivery. If partial shipments or deliveries are authorized by the City, a separate invoice must be sent for each shipment or delivery made. B. Proper Invoices must include a unique invoice number, the purchase order or delivery order number and the master agreement number if applicable, the Department's Name, and the name of the point of contact for the Department. Invoices shall be itemized and transportation charges, if any, shall be listed separately. A copy of the bill of lading and the freight waybill, when applicable, shall be attached to the invoice. The Contractor's name, remittance address and, if applicable, the tax identification number on the invoice must exactly match the information in the Vendor's registration with the City. Unless otherwise instructed in writing, the City may rely on the remittance address specified on the Contractor's invoice. C. Invoices for labor shall include a copy of all time-sheets with trade labor rate and deliverables order number clearly identified. Invoices shall also include a tabulation of work-hours at the appropriate rates and grouped by work order number. Time billed for labor shall be limited to hours actually worked at the work site. D. Unless otherwise expressly authorized in the Contract, the Contractor shall pass through all Subcontract and other authorized expenses at actual cost without markup. E. Federal excise taxes, State taxes, or City sales taxes must not be included in the invoiced amount. The City will furnish a tax exemption certificate upon request. File 4 5846 EXHIBIT 3 13. PAYMENT: A. All proper invoices need to be sent to Accounts Payable. Approved invoices will be paid within thirty (30) calendar days of the City's receipt of the deliverables or of the invoice being received in Accounts Payable, whichever is later. B. If payment is not timely made, (per paragraph A); interest shall accrue on the unpaid balance at the lesser of the rate specified in Texas Government Code Section 2251.025 or the maximum lawful rate; except, if payment is not timely made for a reason for which the City may withhold payment hereunder, interest shall not accrue until ten (10) calendar days after the grounds for withholding payment have been resolved. C. If partial shipments or deliveries are authorized by the City, the Contractor will be paid for the partial shipment or delivery, as stated above, provided that the invoice matches the shipment or delivery. D. The City may withhold or set off the entire payment or part of any payment otherwise due the Contractor to such extent as may be necessary on account of: i. delivery of defective or non-conforming deliverables by the Contractor; ii. third party claims, which are not covered by the insurance which the Contractor is required to provide, are filed or reasonable evidence indicating probable filing of such claims; iii. failure of the Contractor to pay Subcontractors, or for labor, materials or equipment; iv. damage to the property of the City or the City's agents, employees or contractors, which is not covered by insurance required to be provided by the Contractor; time specified in the Contract, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; vi. failure of the Contractor to submit proper invoices with purchase order number, with all required attachments and supporting documentation; or vii. failure of the Contractor to comply with any material provision of the Contract Documents. E. Notice is hereby given that any awarded firm who is in arrears to the City of Denton for delinquent taxes, the City may offset indebtedness owed the City through payment withholding. F. Payment will be made by check unless the parties mutually agree to payment by credit card or electronic transfer of funds. The Contractor agrees that there shalt be no additional charges, surcharges, or penalties to the City for payments made by credit card or electronic funds transfer. G. The awarding or continuation of this contract is dependent upon the availability of funding. The City's payment obligations are payable only and solely from funds Appropriated and available for this contract. The absence of Appropriated or other lawfully available funds shall render the Contract null and void to the extent funds are not Appropriated or available and any deliverables delivered but unpaid shall be returned to the Contractor. The City shall provide the Contractor written notice of the failure of the City to make an adequate Appropriation for any fiscal year to pay the amounts due under the Contract, or the reduction of any Appropriation to an amount insufficient to permit the City to pay its obligations under the Contract. In the event of none or inadequate appropriation of funds, there will be no penalty nor removal fees charged to the City. 14. TRAVEL EXPENSES: All travel, lodging and per them expenses in connection with the Contract shall be paid by the Contractor, unless otherwise stated in the contract terms. During the term of this contract, the contractor shall bill and the City shall reimburse contractor for all reasonable and approved out of pocket expenses which are incurred in the connection with the File # 5846 EXHIBIT 3 performance of duties hereunder. Notwithstanding the foregoing, expenses for the time spent by the contractor in traveling to and from City facilities whall not be reimbursed, unless otherwise negotiated. 15. FINAL PAYMENT AND CLOSE-OUT: A. If a DBE/MBE/WBE Program Plan is agreed to and the Contractor has identified Subcontractors, the Contractor is required to submit a Contract Close-Out MBE/WBE Compliance Report to the Purchasing Manager no later than the 15th calendar day after completion of all work under the contract. Final payment, retainage, or both may be withheld if the Contractor is not in compliance with the requirements as accepted by the City. B. The making and acceptance of final payment will constitute: L a waiver of all claims by the City against the Contractor, except claims (1) which have been previously asserted in writing and not yet settled, (2) arising from defective work appearing after final inspection, (3) arising from failure of the Contractor to comply with the Contract or the terms of any warranty specified herein, (4) arising from the Contractor's continuing obligations under the Contract, including but not limited to indemnity and warranty obligations, or (5) arising under the City's right to audit; and ii, a waiver of all claims by the Contractor against the City other than those previously asserted in writing and not yet settled. 16. SPECIAL TOOLS & TEST EQUIPMENT: If the price stated on the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Contractor for thereto shall become the property of the City and shall be identified by the Contractor as such. 17. RIGHT TO AUDIT: A. The City shall have the right to audit and make copies of the books, records and computations pertaining to the Contract. The Contractor shall retain such books, records, documents and other evidence pertaining to the Contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within ten (10) business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to the Contract, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Contractor which must be payable within five (5) business days of receipt of an invoice. B. Failure to comply with the provisions of this section shall be a material breach of the Contract and shall constitute, in the City's sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 18. SUBCONTRACTORS: A. If the Contractor identified Subcontractors in a DBE/MBE/WBE agreed to Plan, the Contractor shall comply with all requirements approved by the City. The Contractor shall not initially employ any Subcontractor except as provided in the Contractor's Plan. The Contractor File # 5846 EXHIBIT 3 shall not substitute any Subcontractor identified in the Plan, unless the substitute has been accepted by the City in writing. No acceptance by the City of any Subcontractor shall constitute a waiver of any rights or remedies of the City with respect to defective deliverables provided by a Subcontractor. If a Plan has been approved, the Contractor is additionally required to submit a monthly Subcontract Awards and Expenditures Report to the Procurement Manager, no later than the tenth calendar day of each month. B. Work performed for the Contractor by a Subcontractor shall be pursuant to a written contract between the Contractor and Subcontractor. The terms of the subcontract may not conflict with the terms of the Contract, and shall contain provisions that: L require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Contract; ii. prohibit the Subcontractor from further subcontracting any portion of the Contract without the prior written consent of the City and the Contractor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in form, substance and amount acceptable to the City; iii. require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Contractor in sufficient time to enable the Contractor to include same with its invoice or application for payment to the City in accordance with the terms of the Contract; iv. require that all Subcontractors obtain and maintain, throughout the term of their being a named insured as its interest shall appear; and v. require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City. C. The Contractor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Contractor is responsible for the Contractor's own acts and omissions. Nothing in the Contract shall create for the benefit of any such Subcontractor any contractual relationship between the City and any such Subcontractor, nor shall it create any obligation on the part of the City to pay or to see to the payment of any moneys due any such Subcontractor except as may otherwise be required by law. D. The Contractor shall pay each Subcontractor its appropriate share of payments made to the Contractor not later than ten (10) calendar days after receipt of payment from the City. 19. WARRANTY-PRICE: A. The Contractor warrants the price's quoted in the Offer are no higher than the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. B. The Contractor certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the put-pose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. C. In addition to any other remedy available, the City may deduct from any amounts owed to the Contractor, or otherwise recover, any amounts paid for items in excess of the Contractor's current prices on orders by others for like deliverables under similar terms of purchase. 20. WARRANTY — TITLE: The Contractor warrants that it has good and indefeasible title to all deliverables furnished under the Contract, and that the deliverables are free and clear of all liens, claims, security interests and encumbrances. The Contractor shall indemnify and hold the City harmless from and against all adverse title claims to the deliverables. File # 5846 EXHIBIT 3 21. WARRANTY — DELIVERABLES: The Contractor warrants and represents that all deliverables sold the City under the Contract shall be free from defects in design, workmanship or manufacture, and conform in all material respects to the specifications, drawings, and descriptions in the Solicitation, to any samples furnished by the Contractor, to the terms, covenants and conditions of the Contract, and to all applicable State, Federal or local laws, rules, and regulations, and industry codes and standards. Unless otherwise stated in the Solicitation, the deliverables shall be new or recycled merchandise, and not used or reconditioned. A. Recycled deliverables shall be clearly identified as such. B. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law; and any attempt to do so shall be without force or effect. C. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the date of acceptance of the deliverables or from the date of acceptance of any replacement deliverables. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand either repair the non-conforming deliverables, or replace the non-conforming deliverables with fully conforming deliverables, at the City's option and at no additional cost to the City. All costs incidental to such repair or replacement, including but not limited to, any packaging and shipping costs shall be borne exclusively by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. D. If the Contractor is unable or unwilling to repair or replace defective or non - conforming reduce the quantity of deliverables; it may be required to purchase under the Contract from the Contractor, and purchase conforming deliverables from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such deliverables from another source. E. If the Contractor is not the manufacturer, and the deliverables are covered by a separate manufacturer's warranty, the Contractor shall transfer and assign such manufacturer's warranty to the City. If for any reason the manufacturer's warranty cannot be fully transferred to the City, the Contractor shall assist and cooperate with the City to the fullest extent to enforce such manufacturer's warranty for the benefit of the City. 22. WARRANTY — SERVICES: The Contractor warrants and represents that all services to be provided the City under the Contract will be fully and timely performed in a good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions, and covenants of the Contract, and all applicable Federal, State and local laws, rules or regulations. A. The Contractor may not limit, exclude or disclaim the foregoing warranty or any warranty implied by law, and any attempt to do so shall be without force or effect. B. Unless otherwise specified in the Contract, the warranty period shall be at least one year from the Acceptance Date. If during the warranty period, one or more of the above warranties are breached, the Contractor shall promptly upon receipt of demand perform the services again in accordance with above standard at no additional cost to the City. All costs incidental to such additional performance shall be home by the Contractor. The City shall endeavor to give the Contractor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach warranty, but failure to give timely notice shall not impair the City's rights under this section. File # 5846 EXHIBIT 3 C. If the Contractor is unable or unwilling to perform its services in accordance with the above standard as required by the City, then in addition to any other available remedy, the City may reduce the amount of services it may be required to purchase under the Contract from the Contractor, and purchase conforming services from other sources. In such event, the Contractor shall pay to the City upon demand the increased cost, if any, incurred by the City to procure such services from another source. 23. ACCEPTANCE OF INCOMPLETE OR NON-CONFORMING DELIVERABLES: If, instead of requiring immediate correction or removal and replacement of defective or non- conforming deliverables, the City prefers to accept it, the City may do so. The Contractor shall pay all claims, costs, losses and damages attributable to the City's evaluation of and determination to accept such defective or non-conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non-conforming deliverables. If the acceptance occurs after final payment, such amount will be refunded to the City by the Contractor. 24. RIGHT TO ASSURANCE: Whenever one party to the Contract in good faith has reason to question the other party's intent to perform, demand may be made to the other party for written assurance of the intent to perform. In the event that no assurance is given within the time specified after demand is made, the demanding party may treat this failure as an anticipatory repudiation of the Contract, 25. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Contractor is observed performing in a manner that is in violation of Federal, State, or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Contractor will cease all work until notified by the City that the violation or unsafe condition has been corrected. The Contractor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work- Notice. 26. DEFAULT: The Contractor shall be in default under the Contract if the Contractor (a) fails to fully, timely and faithfully perform any of its material obligations under the Contract, (b) fails to provide adequate assurance of performance under Paragraph 24, (c) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (d) makes a material misrepresentation in Contractor's Offer, or in any report or deliverable required to be submitted by the Contractor to the City. 27. TERMINATION FOR CAUSE: In the event of a default by the Contractor, the City shall have the right to terminate the Contract for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Contractor, within such ten (10) day period, cures such default, or provides evidence sufficient to prove to the City's reasonable satisfaction that such default does not, in fact, exist. In addition to any other remedy available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses, incurred by the City as a result of the Contractor's default, including, without limitation, cost of cover, reasonable attorneys' fees, court costs, and prejudgment and post judgment interest at the maximum lawful rate. Additionally, in the event of a default by the Contractor, the City may remove the Contractor from the City's vendor list for three (3) years and any Offer submitted by the Contractor may be disqualified for up to three (3) years. All rights and remedies under the Contract are cumulative and are not exclusive of any other right or remedy provided by law. File # 5846 EXHIBIT 3 28. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Contract, in whole or in pat[, without cause any time upon thirty (3 0) calendar days' prior written notice. Upon receipt of a notice of termination, the Contractor shall promptly cease all ftwther work pursuant to the Contract, with such exceptions, if any, specified in the notice of termination. The City shall pay the Contractor, to the extent of funds Appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 29. FRAUD: Fraudulent statements by the Contractor on any Offer or in any report or deliverable required to be submitted by the Contractor to the City shall be grounds for the termination of the Contract for cause by the City and may result in legal action. 30. DELAYS: A. The City may delay scheduled delivery or other due dates by written notice to the Contractor if the City deems it is in its best interest. If such delay causes an increase in the cost of the work under the Contract, the City and the Contractor shall negotiate an equitable adjustment for costs incurred by the Contractor in the Contract price and execute an amendment to the Contract. The Contractor must assert its right to an adjustment within thirty (30) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution process specified in paragraph 49. However, nothing in this provision shall excuse the Contractor from delaying the delivery as notified. under this Contract if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond the reasonable control of such Party. In the event of default or delay in contract performance due to any of the foregoing causes, then the time for completion of the services will be extended-, provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. 31. INDEMNITY: A. Definitions: i. "Indemnified Claims" shall include any and all claims, demands, suits, causes of action, judgments and liability of every character, type or description, including all reasonable costs and expenses of litigation, mediation or other alternate dispute resolution mechanism, including attorney and other professional fees for: (1) damage to or loss of the property of any person (including, but not limited to the City, the Contractor, their respective agents, officers, employees and subcontractors; the officers, agents, and employees of such subcontractors; and third parties); and/or (2) death, bodily injury, illness, disease, worker's compensation, loss of services, or loss of income or wages to any person (including but not limited to the agents, officers and employees of the City, the Contractor, the Contractor's subcontractors, and third parties), ii. "Fault" shall include the sale of defective or non-conforming deliverables, negligence, willful misconduct or a breach of any legally imposed strict liability standard. re =-.,A WZ EXHIBIT 3 B. THE CONTRACTOR SHALL DEFEND (AT THE OPTION OF THE CITY), INDEMNIFY, AND HOLD THE CITY, ITS SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES AND ELECTED OFFICIALS HARMLESS FROM AND AGAINST ALL INDEMNIFIED CLAIMS DIRECTLY ARISING OUT OF, INCIDENT TO, CONCERNING OR RESULTING FROM THE FAULT OF THE CONTRACTOR, OR THE CONTRACTOR'S AGENTS, EMPLOYEES OR SUBCONTRACTORS, IN THE PERFORMANCE OF THE CONTRACTOR'S OBLIGATIONS UNDER THE CONTRACT. NOTHING HEREIN SHALL BE DEEMED TO LIMIT THE RIGHTS OF THE CITY OR THE CONTRACTOR (INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK CONTRIBUTION) AGAINST ANY THIRD PARTY WHO MAY BE LIABLE FOR AN INDEMNIFIED CLAIM. 32. INSURANCE: The following insurance requirements are applicable, in addition to the specific insurance requirements detailed in Appendix A for services only. The successful firm shall procure and maintain insurance of the types and in the minimum amounts acceptable to the City of Denton. The insurance shall be written by a company licensed to do business in the State of Texas and satisfactory to the City of Denton. A. General Requirements: i. The Contractor shall at a minimum carry insurance in the types and amounts indicated and agreed to, as submitted to the City and approved by the City within the procurement process, for the duration of the Contract, including extension options and hold over ii. The Contractor shall provide Certificates of Insurance with the coverage's- and endorsements required to the City as verification of coverage prior to contract execution and within fourteen (14) calendar days after written request from the City. Failure to provide the required Certificate of Insurance may subject the Offer to disqualification from consideration for award. The Contractor must also forward a Certificate of Insurance to the City whenever a previously identified policy period has expired, or an extension option or hold over period is exercised, as verification of continuing coverage. iii. The Contractor shall not commence work until the required insurance is obtained and until such insurance has been reviewed by the City. Approval of insurance by the City shall not relieve or decrease the liability of the Contractor hereunder and shall not be construed to be a limitation of liability on the part of the Contractor. iv. The Contractor must submit certificates of insurance to the City for all subcontractors prior to the subcontractors commencing work on the project. v. The Contractor's and all subcontractors' insurance coverage shall be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of A- VII or better. The City will accept workers' compensation coverage written by the Texas Workers' Compensation Insurance Fund. vi. All endorsements naming the City as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall contain the solicitation number and the following information: City of Denton Materials Management Department 901B Texas Street Denton, Texas 76209 File # 5846 EXHIBIT 3 vii. The "other" insurance clause shall not apply to the City where the City is an additional insured shown on any policy. It is intended that policies required in the Contract, covering both the City and the Contractor, shall be considered primary coverage as applicable. viii. If insurance policies are not written for amounts agreed to with the City, the Contractor shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. ix. The City shall be entitled, upon request, at an agreed upon location, and without expense, to review certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. x. The City reserves the right to review the insurance requirements set forth during the effective period of the Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by the City based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as the Contractor. xi. The Contractor shall not cause any insurance to be canceled nor permit any insurance to lapse during the term of the Contract or as required in the Contract. retentions, if any, stated in policies. All deductibles or self-insured retentions shall be disclosed on the Certificate of Insurance. xiii. The Contractor shall endeavor to provide the City thirty (30) calendar days' written notice of erosion of the aggregate limits below occurrence limits for all applicable coverage's indicated within the Contract. xiv. The insurance coverage's specified in within the solicitation and requirements are required minimums and are not intended to limit the responsibility or liability of the Contractor. B. Specific Coverage Requirements: Specific insurance requirements are contained in the solicitation instrument. 33. CLAIMS: If any claim, demand, suit, or other action is asserted against the Contractor which arises under or concerns the Contract, or which could have a material adverse affect on the Contractor's ability to perform thereunder, the Contractor shall give written notice thereof to the City within ten (10) calendar days after receipt of notice by the Contractor. Such notice to the City shall state the date of notification of any such claim, demand, suit, or other action; the names and addresses of the claimant(s); the basis thereof; and the name of each person against whom such claim is being asserted. Such notice shall be delivered personally or by mail and shall be sent to the City and to the Denton City Attorney. Personal delivery to the City Attorney shall be to City Hall, 215 East McKinney Street, Denton, Texas 7620 1. 34. NOTICES: Unless otherwise specified, all notices, requests, or other communications required or appropriate to be given under the Contract shall be in writing and shall be deemed delivered three (3) business days after postmarked if sent by U.S. Postal Service Certified or Registered Mail, Return Receipt Requested. Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class File # 5846 EXHIBIT 3 mail, telefax, or other commercially accepted means. Notices to the Contractor shall be sent to the address specified in the Contractor's Offer, or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to the City at 901E Texas Street, Denton, Texas 76209 and marked to the attention of the Purchasing Manager. 35. RIGHTS TO BID, PROPOSAL AND CONTRACTUAL MATERIAL: All material submitted by the Contractor to the City shall become property of the City upon receipt. Any portions of such material claimed by the Contractor to be proprietary must be clearly marked as such. Determination of the public nature of the material is subject to the Texas Public Information Act, Chapter 552, and Texas Government Code. 36. NO WARRANTY BY CITY AGAINST INFRINGEMENTS: The Contractor represents and warrants to the City that: (i) the Contractor shall provide the City good and indefeasible title to the deliverables and (ii) the deliverables supplied by the Contractor in accordance with the specifications in the Contract will not infringe, directly or contributorily, any patent, trademark, copyright, trade secret, or any other intellectual property right of any kind of any third party; that no claims have been made by any person or entity with respect to the ownership or operation of the deliverables and the Contractor does not know of any valid basis for any such claims. The Contractor shall, at its sole expense, defend, indemnify, and hold the City harmless from and against all liability, damages, and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (i) any claim that the City's exercise anywhere in the world of the rights associated with the City's' ownership, and if applicable, license rights, and its use of-th-e--dd ve—ral5les-in-fr-ing—es- the -intellectual --property —rights —of -any "third - party; or (ii) the Contractor's breach of any of Contractor's representations or warranties stated in this Contract. In the event of any such claim, the City shall have the right to monitor such claim or at its option engage its own separate counsel to act as co-counsel on the City's behalf Further, Contractor agrees that the City's specifications regarding the deliverables shall in no way diminish Contractor's warranties or obligations under this paragraph and the City makes no warranty that the production, development, or delivery of such deliverables will not impact such warranties of Contractor, 37. CONFIDENTIALITY: In order to provide the deliverables to the City, Contractor may require access to certain of the City's and/or its licensors' confidential information (including inventions, employee information, trade secrets, confidential know-how, confidential business information, and other information which the City or its licensors consider confidential) (collectively, "Confidential Information"). Contractor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors and any unauthorized use, disclosure, dissemination, or other release of the Confidential Information will substantially injure the City and/or its licensors. The Contractor (including its employees, subcontractors, agents, or representatives) agrees that it will maintain the Confidential Information in strict confidence and shall not disclose, disseminate, copy, divulge, recreate, or otherwise use the Confidential Information without the prior written consent of the City or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided the Contractor promptly notifies the City before disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Contractor agrees to use protective measures no less stringent than the Contractor uses within its own business to protect its own most valuable information, which protective measures shall File # 5846 EXHIBIT 3 under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential Information. 38. OWNERSHIP AND USE OF DELIVERABLES: The City shall own all rights, titles, and interests throughout the world in and to the deliverables. A. Patents. As to any patentable subject matter contained in the deliverables, the Contractor agrees to disclose such patentable subject matter to the City. Further, if requested by the City, the Contractor agrees to assign and, if necessary, cause each of its employees to assign the entire right, title, and interest to specific inventions under such patentable subject matter to the City and to execute, acknowledge, and deliver and, if necessary, cause each of its employees to execute, acknowledge, and deliver an assignment of letters patent, in a form to be reasonably approved by the City, to the City upon request by the City. B. Copyrights. As to any deliverables containing copyrightable subject matter, the Contractor agrees that upon their creation, such deliverables shall be considered as work made-for-hire by the Contractor for the City and the City shall own all copyrights in and to such deliverables, provided however, that nothing in this Paragraph 38 shall negate the City's sole or joint ownership of any such deliverables arising by virtue of the City's sole or joint authorship of such deliverables. Should by operation of law, such deliverables not be considered works made-for- hire, the Contractor hereby assigns to the City (and agrees to cause each of its employees providing services to the City hereunder to execute, acknowledge, and deliver an assignment to the City of) all worldwide right, title, and interest in and to such deliverables. With respect to each of its employees providing services to the City hereunder to execute, acknowledge, and deliver a work-made-for-hire agreement, in a form to be reasonably approved by the City, to the City upon delivery of such deliverables to the City or at such other time as the City may request. C. Additional Assignments. The Contractor further agrees to, and if applicable, cause each of its employees to, execute, acknowledge, and deliver all applications, specifications, oaths, assignments, and all other instruments which the City might reasonably deem necessary in order to apply for and obtain copyright protection, mask work registration, trademark registration and/or protection, letters patent, or any similar rights in any and all countries and in order to assign and convey to the City, its successors, assigns and nominees, the sole and exclusive right, title, and interest in and to the deliverables. The Contractor's obligations to execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) instruments or papers such as those described in this Paragraph 38 a., b., and c. shalt continue after the termination of this Contract with respect to such deliverables. In the event the City should . not seek to obtain copyright protection, mask work registration or patent protection for any of the deliverables, but should desire to keep the same secret, the Contractor agrees to treat the same as Confidential Information under the terms of Paragraph 37 above. 39. PUBLICATIONS: All published material and written reports submitted under the Contract must be originally developed material unless otherwise specifically provided in the Contract. When material not originally developed is included in a report in any form, the source shall be identified. 40. ADVERTISING: The Contractor shall not advertise or publish, without the City's prior consent, the fact that the City has entered into the Contract, except to the extent required by law. M M IMMI rel EXHIBIT 3 41. NO CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure the Contract upon any agreement or understanding for commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the Contractor for the put-pose of securing business. For breach or violation of this warranty, the City shall have the right, in addition to any other remedy available, to cancel the Contract without liability and to deduct from any amounts owed to the Contractor, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee. 42. GRATUITIES: The City may, by written notice to the Contractor, cancel the Contract without liability if it is determined by the City that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the City of Denton with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such contract. In the event the Contract is canceled by the City pursuant to this provision, the City shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. 43. PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS: No officer, employee, independent consultant, or elected official of the City who is involved in the development, evaluation, or decision-making process of the performance of any solicitation shall willful violation of this section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the City. The Contractor shall complete and submit the City's Conflict of Interest Questionnaire. 44. INDEPENDENT CONTRACTOR: The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor. The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the City of Denton, Texas for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. The City shall not have supervision and control of the Contractor or any employee of the Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. The contractor is expressly free to advertise and perform services for other parties while performing services for the City. 45. ASSIGNMENT-DELEGATION: The Contract shall be binding upon and ensure to the benefit of the City and the Contractor and their respective successors and assigns, provided however, that no right or interest in the Contract shall be assigned and no obligation shall be delegated by the Contractor without the prior written consent of the City. Any attempted assignment or delegation by the Contractor shall be void unless made in conformity with this paragraph. The Contract is not intended to confer rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there are no third party beneficiaries to the Contract. File # 5846 EXHIBIT 3 46. WAIVER: No claim or right arising out of a breach of the Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Contractor or the City of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Contract, or an express or implied acceptance of any other existing or future default or defaults, whether of a similar or different character. 47. MODIFICATIONS: The Contract can be modified or amended only by a writing signed by both parties. No pre-printed or similar terms on any the Contractor invoice, order or other document shall have any force or effect to change the terins, covenants, and conditions of the Contract. 48. INTERPRETATION: The Contract is intended by the parties as a final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Contract. Although the Contract may have been substantially drafted by one patty, it is the intent of the parties that all provisions be construed in a manner to be fair to both pat-ties, reading no provisions more strictly against one party or the other. Whenever a term defined by the Uniform Commercial Code, as enacted by the State of Texas, is used in the Contract, the UCC definition shalt control, unless otherwise defined in the Contract. 49. DISPUTE RESOLUTION: A. If a dispute arises out of or relates to the Contract, or the breach thereof, the parties agree to negotiate prior to prosecuting a suit for damages. However, this section does not prohibit the filing of a lawsuit to toll the running of a statute of limitations or to seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within fourteen (14) calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum, one (1) senior level individual with decision- making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within thirty (30) calendar days after such meeting, the patties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation as described below. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described below. B. If the efforts to resolve the dispute through negotiation fail, or the parties waive the negotiation process, the parties may select, within thirty (30) calendar days, a mediator trained in mediation skills to assist with resolution of the dispute. Should they choose this option; the City and the Contractor agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in the Contract prevents the parties from relying on the skills of a person who is trained in the subject matter of the dispute or a contract interpretation expert. If the parties fail to agree on a mediator within thirty (30) calendar days of initiation of the mediation process, the mediator shall be selected by the Denton County Alternative Dispute Resolution Program (DCAP). The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session. The City and the Contractor wilt share the mediator's fees equally and the patties will bear their own costs of participation such as fees for any consultants or attorneys they may utilize to represent them or otherwise assist them in the mediation. M".3013111 EXHIBIT 3 50. JURISDICTION AND VENUE: The Contract is made under and shall be governed by the laws of the State of Texas, including, when applicable, the Uniform Commercial Code as adopted in Texas, V.T.C.A., Bus. & Comm. Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. All issues arising from this Contract shall be resolved in the courts of Denton County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit or restrict the right or ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein. 51. INVALIDITY: The invalidity, illegality, or unenforceability of any provision of the Contract shall in no way affect the validity or enforceability of any other portion or provision of the Contract. Any void provision shall be deemed severed from the Contract and the balance of the Contract shall be construed and enforced as if the Contract did not contain the particular portion or provision held to be void. The parties further agree to reform the Contract to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shalt not prevent this entire Conti-act from being void should a provision which is the essence of the Contract be determined to be void. 52, HOLIDAYS: The following holidays are observed by the City: New Year's Day (observed) MLK Day 4th of July Labor Day Thanksgiving Day Day After Thanksgiving Christmas Eve (observed) Christmas Day (observed) New Year's Day (observed If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. Normal hours of operation shall be between 8:00 am and 4:00 pm, Monday through Friday, excluding City of Denton Holidays. Any scheduled deliveries or work performance not within the normal hours of operation must be approved by the City Manager of Denton, Texas or his authorized designee. 53. SURVIVABILITY OF OBLIGATIONS: All provisions of the Contract that impose continuing obligations on the parties, including but not limited to the warranty, indemnity, and confidentiality obligations of the parties, shall survive the expiration or termination of the Contract. 54. NON-SUSPENSION OR DEBARMENT CERTIFICATION: The City of Denton is prohibited from contracting with or making prime or sub-awards to parties that are suspended or debarred or whose principals are suspended or debarred from Federal, State, or City of Denton Contracts. By accepting a Contract with the City, the Vendor certifies that its firm and its principals are not currently suspended or debarred from doing business with the Federal Government, as indicated by the General Services Administration List of Parties Excluded from Federal Procurement and Non-Procurement Programs, the State of Texas, or the City of Denton. File # 5846 EXHIBIT 3 55. EQUAL OPPORTUNITY A. Equal Employment Opportunity: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice. No person shall, on the grounds of race, sex, age, disability, creed, color, genetic testing, or national origin, be refused the benefits of, or be otherwise subjected to discrimination under any activities resulting from this RFQ. B. Americans with Disabilities Act (ADA) Compliance: No Offeror, or Offeror's agent, shall engage in any discriminatory employment practice against individuals with disabilities as defined in the ADA. 56. BUY AMERICAN ACT-SUPPLIES (Applicable to certain federally funded requirements) The following federally funded requirements are applicable. A. Definitions. As used in this paragraph — i. "Component" means an article, material, or supply incorporated directly into an end product. ii. "Cost of components" means - (1) For components purchased by the Contractor, the acquisition cost, including transportation costs to the place of incorporation into the end product (whether or not such costs are paid to a domestic firm), and any applicable duty (whether or not a duty-free entry certificate is issued); or (2) For components manufactured by the Contractor, all costs associated with the manufacture of the component, including transportation costs as described in paragraph (1) of this definition, plus allocable overhead costs, but excluding profit. Cost of components does not include any costs associated with the manufacture of the end product. iii. "Domestic end product" means- (1) An unmanufactured end product mined or produced in the United States; or (2) An end product manufactured in the United States, if the cost of its components mined, produced, or manufactured in the United States exceeds 50 percent of the cost of all its components. Components of foreign origin of the same class or kind as those that the agency determines are not mined, produced, or manufactured in sufficient and reasonably available commercial quantities of a satisfactory quality are treated as domestic. Scrap generated, collected, and prepared for processing in the United States is considered domestic. iv. "End product" means those articles, materials, and supplies to be acquired under the contract for public use. V. "Foreign end product" means an end product other than a domestic end product. vi. "United States" means the 50 States, the District of Columbia, and outlying areas. B. The Buy American Act (41 U.S.C. 10a - 10d) provides a preference for domestic end products for supplies acquired for use in the United States. C. The City does not maintain a list of foreign articles that will be treated as domestic for this Contract; but will consider for approval foreign articles as domestic for this product if the articles are on a list approved by another Governmental Agency. The Offeror shall submit documentation with their Offer demonstrating that the article is on an approved Governmental list. D. The Contractor shall deliver only domestic end products except to the extent that it specified delivery of foreign end products in the provision of the Solicitation entitled "Buy American Act Certificate". 57. RIGHT TO INFORMATION: The City of Denton reserves the right to use any and all information presented in any response to this contract, whether amended or not, except as prohibited by law. Selection of rejection of the submittal does not affect this right. File # 5846 EXHIBIT 3 58. LICENSE FEES OR TAXES: Provided the solicitation requires an awarded contractor or supplier to be licensed by the State of Texas, any and all fees and taxes are the responsibility of the respondent. 59. PREVAILING WAGE RATES: The contractor shall comply with prevailing wage rates as defined by the United States Department of Labor Davis-Bacon Wage Determination at http://www.dol.gov/whd/contracts/dbra.htm and at the Wage Determinations website w-ww.wdqjMy for Denton County, Texas (WD-2509). 60. COMPLIANCE WITH ALL STATE, FEDERAL, AND LOCAL LAWS: The contractor or supplier shall comply with all State, Federal, and Local laws and requirements. The Respondent must comply with all applicable laws at all times, including, without limitation, the following: (i) §36.02 of the Texas Penal Code, which prohibits bribery; (ii) §36.09 of the Texas Penal Code, which prohibits the offering or conferring of benefits to public servants, The Respondent shall give all notices and comply with all laws and regulations applicable to furnishing and performance of the Contract. 61. FEDERAL, STATE, AND LOCAL REQUIREMENTS: Respondent shall demonstrate on-site compliance with the Federal Tax Reform Act of 1986, Section 1706, amending Section 530 of the Revenue Act of of 1978, dealing with issuance of Form W-2's to common law employees. Respondent is responsible for both federal and State unemployment insurance ---A _-A--A _1_11 compliance with all federal and State tax laws and withholding requirements. The City of Denton shall not be liable to Respondent or its employees for any Unemployment or Workers' Compensation coverage, or federal or State withholding requirements. Contractor shall indemnify the City of Denton and shall pay all costs, penalties, or losses resulting from Respondent's omission or breach of this Section. 62. DRUG FREE WORKPLACE: The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government-wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug-Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 63. RESPONDENT LIABILITY FOR DAMAGE TO GOVERNMENT PROPERTY: The Respondent shall be liable for all damages to government-owned, leased, or occupied property and equipment caused by the Respondent and its employees, agents, subcontractors, and suppliers, including any delivery or cartage company, in connection with any performance pursuant to the Contract. The Respondent shall notify the City of Denton Procurement Manager in writing of any such damage within one (1) calendar day. 64. FORCE MAJE URE: The City of Denton, any Customer, and the Respondent shall not be responsible for performance under the Contract should it be prevented from performance by an act of war, order of legal authority, act of God, or other unavoidable cause not attributable to the fault or negligence of the City of Denton. In the event of an occurrence under this Section, the File # 5846 EXHIBIT 3 Respondent will be excused from any further performance or observance of the requirements so affected for as long as such circumstances prevail and the Respondent continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay. The Respondent shall immediately notify the City of Denton Procurement Manager by telephone (to be confirmed in writing within five (5) calendar days of the inception of such occurrence) and describe at a reasonable level of detail the circumstances causing the non-performance or delay in performance. 65. NON-WAIVER OF RIGHTS: Failure of a Party to require performance by another Party under the Contract will not affect the right of such Party to require performance in the future. No delay, failure, or waiver of either Patty's exercise or partial exercise of any right or remedy under the Contract shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the Contract will not be construed as a waiver of any continuing or succeeding breach. 66. NO WAIVER OF SOVEREIGN IMMUNITY. The Parties expressly agree that no provision of the Contract is in any way intended to constitute a waiver by the City of Denton of any immunities from suit or from liability that the City of Denton may have by operation of law. 67. RECORDS RETENTION: The Respondent shall retain all financial records, supporting documents, statistical records, and any other records or books relating to the performances called -for-in-the-Contract.-T-he-Respondent-shall-retain-alLsuch-records-for-a-period-of-fou,r-(-4) years_ after the expiration of the Contract, or until the CPA or State Auditor's Office is satisfied that all audit and litigation matters are resolved, whichever period is longer. The Respondent shall grant access to all books, records and documents pertinent to the Contract to the CPA, the State Auditor of Texas, and any federal governmental entity that has authority to review records due to federal funds being spent under the Contract. Should a conflict arise between any of the contract documents, it shall be resolved with the following order of precedence (if applicable). In any event, the final negotiated contract shall take precedence over any and all contract documents to the extent of such conflict. 1. Final negotiated contract 2. RFP/Bid documents 3. City's standard terms and conditions 4. Purchase order 5. Supplier terms and conditions File # 5816 EXHIBIT 3 Exhibit D INSURANCE REQUIREMENTS AND Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time,* however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. Al! insurance policies proposea or onrainea in sarisTacrion or rnese requirements snarl comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A- VII or better. • Any deductibles or self-insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: • Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. ■ That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. File # 5846 EXHIBIT 3 • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: Al! insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted.- [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: • Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. • Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. File 4 5846 EXHIBIT 3 [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than 1600,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non-owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. Professional Liability Insurance Professional liability insurance with limits not less than 11,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. rd[ IMEM, RM I ro EXHIBIT 3 Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. 11�01.1 Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. File 9 5846 EXHIBIT 3 ATTACHMENT I [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that-person-contracted-directl-y-w-ith-the-contractor-and-re.gardless-o.f-w.he.ther that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. File # 5846 EXHIBIT 3 E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner — prescribed —by the — Texas Wo rkers—'Corn pensation—C-orn miss ion,_ informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: File # 5846 EXHIBIT 3 a. a certificate of coverage, prior to the other person beginning work on the project; and b. a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees -of- the - contractor -who- -will- provide - services -on -the- project - will -be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entities the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. File # 5846 EXHIBIT 3 WEROW; City of Dontm RFP Doi: Sla-eet Millitig Services ATTACHARNT E-CONFUCf OFtNTE RE ST -QUE STIONINAIRF, CONFLICT OF INTE R.EST QtM, STIONNAM - FORM OQ For vendor or ot'b'q- person doing l5usittess with Jocaf goi,ernmental STI't—v- This questioMiake,reffec6 chAngeg mde to the 1mv, by RX 1491, Nth Leg" lUgtdar SeSSIOU.. niis questjoimaim is beTing Med in aocordance vi4th chapter 176 of tho Local Gove=lent Code by a person Nybb has a business relationship as defused by Secboo 176,001(1-a) witty a local go-v6moental entity and the person "mots requiremebts gnder Section 176.006(a). By law this questionnaire, must be filed with the records adalii istrafor of flic local goVerraileat -entity not later than the A busirii'ss slay -after the date the persoo becomes aware of facts that require the statommit to be filed, See Sc*fibn 176.006, Local Goverinnent Code, I A person corivDits au offfixs(s if (be parson kj)mingly'viclates Section 176,Q06, Local PaNeY-imilent Codo. Azk offonge under this section is a Class C inisdemeatior. 'N1Q1n'e of person who jlas a boshless rejutlanship wiih kwa I governme'Altal entity. Randy Wicke- chmit (his boxiryoo oro, Wing -.in ispilalte to a prcviovsll, Mott questiomiaire, thatyou file ft)i Updated I'vith the appropriatefiling Anthoritynot latertban d)e'Y'h bmv;jics§-daV altertlic Name of loe.O pxrc)'nnientoffiftrwith whoill A116HIRS it) CAftPlOyindflOn' b fiSiOCSS r el lnianSh p. N/A gWie of oftfcei P1 )pas deboed by Seottoij Local (36vumpt Code- Aftach addiVonal pages to this Form C as A. Is the local government officer named iii receive taxable hicorxte, o(ber th an investment ini-on)e, ftum the njerofthe Yes 13. is the filer ofthe qtics(joimairt receiving or likely to receive laxable income; ot4cr that) investment income, &om or tit the direction ofthe,locall kPDNTMMeP It OfFlOff naMM in this section AND the taxable itimne is notmaived from the local govcmmental entity? C. Ls the filer of this questionwtimempjoyed by a <--orporatjoi) m other btisiness C"Of" %6(h 1(7$PL-Ct W which the local as an officer or director,, or holds an ownership of )1l percmAt or tixaO yes Joij D. De%dbc each Pffflial.kon or buslhez relafsomlsip, 6/30/2015 Signature of -Son doing bitsiness -tvith die governmontal entity Date RFP #5846 -, Main Docoment page 19 of 21 Z� U- X LLI z Qj CL O bb O :3 ED ca m 43 C) w r) Li D co OL Q. 0 10 00 CL 0 CL S CL u 7di (A G 771 0 f- z Qj CL tn 4) bb O :3 ED ca m 43 C) to r) Li D co OL Q. 0 10 00 CL 0 CL S CL u 7di (A G 771 0 f- 'S 0 43 � W -C CL CY CZ ox = N ca 01 ui 0 O _ rr °m r3 k4 tu zi a 0) = c( qj 0 $- w Z Q Ln 5 CL w < City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -579, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley August 4, 2015 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance of the City of Denton, Texas amending the Fiscal Year 2014 -2015 Budget and Annual Program of Services of the City of Denton to allow for adjustments to the Electric Fund of ten million dollars ($10,000,000) for the purpose of paying off outstanding debt, and the Materials Management Fund of two million seven hundred thousand dollars ($2,700,000) for the purpose of purchasing additional material inventory related to increased capital construction throughout the city; declaring a municipal purpose; providing a severability clause, an open meetings clause and an effective date. The Audit/Finance Committee recommends approval (3 -0). BACKGROUND City staff is proposing to amend the City's FY 2014 -15 Budget as follows: • Amend the Electric Fund budget by $10,000,000 for the purpose of paying off outstanding debt; and • Amend the Materials Management Fund budget by $2,700,000 for the purpose of purchasing additional material inventory related to increased capital construction throughout the city. On a separate item on this agenda, the City Council will consider approval of a parameters bond ordinance authorizing the City Manager or his designee to conduct a bond sale to refund outstanding utility system revenue bonds as well as refund outstanding TMPA related debt. Additional information on the bond sale has been provided on a separate agenda item for the Council's consideration. RECOMMENDATION Staff recommends approval of the budget amendment. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On June 22, 2015, the Public Utility Board (PUB) recommended approval of the DME FY 2015 -16 Budget and CIP, which included options for adjusting the ECA rate on October 1, 2015 and paying off outstanding debt with the FY 2014 -15 ECA over collection. In addition, PUB gave approval to move forward with necessary City of Denton Page 1 of 2 Printed on 7/30/2015 File #: ID 15 -579, Version: 1 budget changes to use these funds to pay off debt. On July 28, 2015, the Audit/Finance Committee unanimously recommended approval to forward the budget amendment to the City Council for consideration. FISCAL INFORMATION This ordinance will amend the FY 2014 -2015 Budget and Annual Program of Services to allow for an adjustment to the Electric Fund of $10,000,000 increasing appropriations from $167,044,830 to $177,044,830 and an adjustment to the Materials Management Fund of $2,700,000 increasing appropriations from $9,164,317 to $11,864,317. EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance Prepared by: Antonio Puente, Jr. Assistant Director of Finance City of Denton Page 2 of 2 Printed on 7/30/2015 sAlegal \our documents \ordinances\15 \080415 budget amendment.docx Exhibit 1 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING THE FISCAL YEAR 2014 -2015 BUDGET AND ANNUAL PROGRAM OF SERVICES OF THE CITY OF DENTON TO ALLOW FOR ADJUSTMENTS TO THE ELECTRIC FUND OF TEN MILLION DOLLARS ($10,000,000) FOR THE PURPOSE OF PAYING OFF OUTSTANDING DEBT, AND THE MATERIALS MANAGEMENT FUND OF TWO MILLION SEVEN HUNDRED THOUSAND DOLLARS ($2,700,000) FOR THE PURPOSE OF PURCHASING ADDITIONAL MATERIAL INVENTORY RELATED TO INCREASED CAPITAL CONSTRUCTION THROUGHOUT THE CITY; DECLARING A MUNICIPAL PURPOSE; PROVIDING A SEVERABILITY CLAUSE, AN OPEN MEETINGS CLAUSE AND AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2014 -279, the City Council of Denton, Texas, approved the Fiscal Year 2014 -2015 Budget and Annual Program of Services (the "Budget "); and WHEREAS, the City of Denton desires to pay off outstanding debt of the City's Electric Fund; and WHEREAS, the City of Denton desires to purchase additional material inventory related to increased capital construction throughout the City; and WHEREAS, the City Council finds that this Budget Amendment serves an important municipal purpose as eligible items for expenditure in the current Budget, consistent with Section 102.010 of the Texas Local Government Code and other applicable laws; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the above preamble to this Ordinance are true and correct and are hereby adopted. SECTION 2. The Fiscal Year 2014 -2015 Budget and Annual Program of Services is hereby amended by the City Council to allow for an adjustment to the Electric Fund of $10,000,000, increasing appropriations from $167,044,830 to $177,044,830 and an adjustment to the Materials Management Fund of $2,700,000, increasing appropriations from $9,164,317 to $11,864,317. SECTION 3. This Ordinance shall be filed with the City Secretary, who is directed to attach a copy of this Ordinance to the Fiscal Year 2014 -2015 Budget and Annual Program of Services. SECTION 4. This Ordinance was approved by at least five members of the City Council as required by Section 8.08 of the City Charter. sAlegal \our documents \ordinances\15 \080415 budget amendment.docx Exhibit 1 SECTION 5. If any section, subsection, paragraph, sentence, clause, phrase, or word in this Ordinance, or the application thereof to any person or under any circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 6. It is officially found and determined that the meeting at which this Ordinance was passed was open to the public as required by law, and the public notice of the time, place and purpose of this meeting was given as required by law. SECTION 7. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: -� Page 2 CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -580, Version: 1 Agenda Information Sheet DEPARTMENT: Finance CM/ ACM: Bryan Langley Date: August 4, 2015 SUBJECT Consider adoption of an ordinance considering all matters incident and related to the issuance, sale and delivery of up to $40,860,000 in principal amount of "City of Denton General Obligation Refunding Bonds, Series 2015" (including up to $17,645,000 for Electric Fund activities, up to $17,410,000 for Water Fund Activities, and up to $5,805,000 for Wastewater Fund activities); authorizing the issuance of the Bonds; delegating the authority to certain City officials to execute certain documents relating to the sale of the Bonds; approving and authorizing instruments and procedures relating to said Bonds; and enacting other provisions relating to the subject. The Audit/Finance Committee recommends approval (3 -0). BACKGROUND The Texas Municipal Power Agency (TMPA) provides electric power to the cities of Bryan, Garland, Greenville, and the City of Denton (Member Cities). The cities and TMPA entered into a Power Sales Agreement (Agreement) on September 1, 1976, under which TMPA is obligated to sell electric energy to the Member Cities, and each Member City, is obligated to pay a percentage of TMPA's annual system costs without regard to whether the energy is delivered by TMPA to, or used by, a Member City. The contractual percentages of each Member City to TMPA are currently as follows: City of Bryan, Texas 21.7% City of Denton, Texas 21.3% City of Garland, Texas 47.0% City of Greenville, Texas 10.0% On July 12, 2012, TMPA passed Resolution No. 2012 -7 -8 (see Exhibit 1) which provided commitments with respect to the administration of funds received from Member Cities for the purpose of refunding or prepaying a portion of TMPA's outstanding Revenue Refunding Bonds, Series 1993. The bonds, which were issued in the form of Capital Appreciation Bonds (CABS), have an aggregate maturity value of $362,185,000. The principal and interest debt service associated with these bonds is $120,725,000 in FY 2014 -15, $120,725,000 in FY 2015 -16 and $120,735,000 in FY 2016 -17. The City of Denton's share of these bonds is $77,145,405. However, only a portion (52.2332% or $189,180,815) of the bonds are eligible to be advance refunded over the three fiscal years and Denton's share of these eligible bonds is $40,295,514 ($13,431,467 in FY 2015, $13,431,467 in FY 2016 and $13,432,580 in FY 2017). City of Denton Page 1 of 3 Printed on 7/30/2015 File #: ID 15 -580, Version: 1 The City issued $13,431,467 in FY 2013 -14 and the City of Denton's share for this coming fiscal year is $13,431,467. However, if the Committee and City Council approve the recommended budget amendment of $10 million for the Electric Fund, the amount actually refunded will only be approximately $3,431,467. Denton's remaining balance, including amounts eligible for refunding in future years, will be considered in conjunction with adoption of Denton Municipal Electric's budget on an annual basis, but it is anticipated that staff will recommend all, or a portion of, the remaining CABS be refunded as well. Payment of the remaining balance of $36,849,891 ($77,145,405 less $40,295,514) is already included in the City's monthly rates to TMPA under the Power Sales Agreement and as such, will be paid off in each respective fiscal year. A summary of the TMPA CAB debt is shown as Exhibit 2. The purpose of this agenda item, therefore, is for the City Council to authorize the issuance of bonds in accordance with the above stated agreement between TMPA and the Member Cities and TMPA's Resolution No. 2012 -7 -8. The bonds will be issued for the purpose of refinancing a portion of the City's contractual obligations to TMPA under the TMPA Power Sales Agreement. The bonds, along with the $10 million cash contribution, will be used to satisfy the City's contractual obligation related to Denton's share of the CABS eligible for advanced refunding in FY 2016 ($13,431,467) and to pay costs of issuing the bonds. In order to minimize the impact to the City's electric rates, staff is proposing to extend the maturity of the bonds to 2024 since they would otherwise mature in 2016. Additionally, staff is recommending that the bonds be structured with interest only payments through 2018 to provide financial flexibility. By extending the maturity of this debt and structuring the bonds with interest only payments through 2018, the City will pay approximately $301,546 more in debt service by 2024 versus cash funding the debt at its present maturity of 2016. However, by structuring the debt in this manner, electric rates will be lower than otherwise necessary to pay the debt in 2016. In addition to refunding a portion of TMPA's bonds, the City is also proposing the refunding of the City's Utility System Revenue Refunding Bonds, Series 2005 and Utility System Revenue Bonds, Series 2006. The aggregate principal amount of these bonds is $37,260,000 and the City currently pays an interest rate of 4.84% on the bonds. By refunding these bonds, staff expects to lower the interest rate paid to approximately 2.20 %. This lower rate would result in debt service payments being reduced by approximately $7.5 million over the life of the debt or approximately $685,000 annually (see Exhibit 3). The refunding will not extend the original maturity anticipated when the bonds are issued (2005 bonds mature in 2023 and 2006 bonds mature in 2026). Since bond market conditions can change rapidly, staff is recommending that the City Council approve a parameters bond sale for the GOs. By doing so, City staff will be authorized to execute the sale without additional Council action. The parameters ordinance sets the following requirements in order to complete the sale of the GOs. - Maximum amount of sale is $40,860,000 - Final stated maturity of February 15, 2026 - Refunding must produce savings of at least 3.00% - Delegation authority ends November 2, 2015 For your review, staff has attached a draft of the preliminary official statement. Since the preliminary official statement is in draft form, it is likely that staff will need to modify and /or include additional information prior to the bond issuance. Once the bond sale has been completed, staff will notify the City Council of the final bond issuance terms. RECOMMENDATION City of Denton Page 2 of 3 Printed on 7/30/2015 File M ID 15 -580, Version: 1 Staff recommends adoption of the ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On July 28, 2015, the Audit/Finance Committee unanimously recommended approval to forward the upcoming bond issuance to the City Council for consideration. FISCAL INFORMATION The City of Denton's percentage share of the 2016 TMPA debt obligations to be refunded is $3,431,467 with $10 million being paid with cash (Total obligation is $13,431,467). In addition, the City proposes to refund the City's Utility System Revenue Refunding Bonds, Series 2005 and Utility System Revenue Bonds, Series 2006, with aggregate principal amount of $37,260,000. Additionally, approximately $175,000 will be included to pay costs of issuance and provide flexibility to price the bond issue. Staff requests authority to sell $40,860,000 in maximum principal amount of outstanding debt. EXHIBITS 1. TMPA Resolution No. 2012 -7 -8 2. CABS Detail for Denton 3. Preliminary GO Refunding Analysis 4. Draft Preliminary Official Statement 5. Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance Prepared by: Antonio Puente, Jr. Assistant Director of Finance City of Denton Page 3 of 3 Printed on 7/30/2015 Exhibit 1 RESOLUTION NO. 2012-7-8 RESOLUTION BY THE BOARD OF DIRECTORS OF THE TEXAS MUNICIPAL POWER AGENCY ( "AGENCY ") PROVIDING COMMITMENTS OF THE AGENCY WITH RESPECT TO THE ADMINISTRATION OF FUNDS RECEIVED FROM MEMBER CITIES FOR THE PURPOSE OF REFUNDING OR PREPAYING A PORTION OF THE AGENCY'S OUTSTANDING REVENUE REFUNDING BONDS, SERIES 1993; SETTING FORTH EXPECTATIONS AND CONDITIONS WITH REGARD TO RECEIPT OF FUNDS FROM THE MEMBER CITIES FOR SUCH PURPOSES, INCLUDING AUTHORIZING PAYMENT CREDITS TO BE EARNED BY MEMBER CITIES IN CONNECTION WITH DEPOSITS MADE WITH RESPECT TO THE PAYMENT OF THE AFORESAID SERIES 1993 BONDS; AUTHORIZING AND DIRECTING THAT ARRANGEMENTS BE MADE BY THE AGENCY FOR THE USE OF AMOUNTS RECEIVED FROM THE MEMBER CITIES FOR SUCH PURPOSES; PROVIDING CONTRACTING AUTHORITY TO THE GENERAL MANAGER AND OTHER AUTHORIZATIONS FOR SUCH PURPOSES; AND APPROVING OTHER MATTERS RELATING THERETO WHEREAS, the Texas Municipal Power Agency has heretofore been created and established as a joint powers agency, a municipal corporation, a political subdivision of the State of Texas (the "State ") and a body politic and corporate, pursuant to the provisions of V.T.C.A., Utilities Code, Chapter 153, Subchapter C (the "Act "); and WHEREAS, in accordance with the Act and other applicable law, the Agency is authorized to incur indebtedness for, among other purposes, financing and refinancing electric generation and transmission facilities and related infrastructure; and WHEREAS, the Agency and each of its member cities, being the Cities of Bryan, Denton, Garland and Greenville (the "Cities "), have entered into a Power Sales Contract dated the 1st day of September, 1976, as amended (the "Power Sales Contract "), under which the Agency is obligated to sell electric energy to the Cities, and each City is unconditionally obligated to pay to the Agency, without offset or counterclaim and without regard to whether energy is delivered by the Agency to the respective City or Cities or whether or not any City or Cities actually use energy from the Agency's generating facilities, the percentage of the Agency's Annual System Costs (as defined in the Power Sales Contract), including the payment of the Debt Service Requirements (as defined in the Power Sales Contract) which may from time to time exist, which are at present the percentages set forth below: City of Bryan, Texas: 21.7% City of Denton, Texas: 21.3% City of Garland, Texas: 47.0% City of Ceenville, Texas: 10.0% Such payment percentages are hereinafter referred to as the "Contract Percentages;" and WHEREAS, the Agency has its Revenue Refunding Bonds, Series 1993 outstanding in the aggregate principal amount $150,713,448.95, which were issued in the form of capital appreciation bonds that have an aggregate maturity value of $575,805,000 (the "Series 1993 Bonds "), and which have been issued to refund previously issued bonds by the Agency that were issued to finance improvements to the Agency's electric and transmission system (the "System Improvements "); and WHEREAS, the Series 1993 Bonds are "Debts" of the Agency within the meaning of the Power Sales Contract and represent a portion of the contractual obligations of the Cities in accordance with the Power Sales Contract; and WHEREAS, the Cities have collectively advised the Agency that it would be beneficial to the Cities if the Agency would provide an undertaking to apply any funds that the Cities might provide to the Agency to prepay all or part of their pro rata shares of the Series 1993 Bonds so that each City may individually determine the most advantageous manner of prepaying or restructuring the portion of the contractual obligations of the Cities represented by the Series 1993 Bonds; and WHEREAS, the Agency is authorized by law and contract to administer funds paid for the foregoing purposes; and WHEREAS, under the provisions of Chapter 1207, Texas Government Code, as amended ( "Chapter 1207 "), the contractual obligation to the Agency of each City under the Power Sales Contract for the payment of the Agency's Debt constitutes an "obligation" of each City, as such term is used in Chapter 1207 (and hereinafter referred to as the "Contractual Obligation" of each City); and WHEREAS, in accordance with the provisions of Chapter 1207, and other laws of the State, the Cities are authorized to issue refunding bonds to discharge their respective Contractual Obligations; and WHEREAS, in addition to the use of City Bond Proceeds (as defined below) to prepay their respective Contractual Obligations, the Cities may have other City Available Funds (as defined below) that may be used for such purpose; and WHEREAS, for the purposes of facilitating the prepayment or discharge of the Contractual Obligations, the Agency's Board of Directors (the "Board ") has determined to memorialize herein and to malce commitments to the Cities that the Board understands will be relied upon by the Cities with respect to certain arrangements for the application of the funds received from the Cities for the purposes set forth above. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE TEXAS MUNICIPAL POWER AGENCY: Section 1. Incorporation of Recitals, Defined Terms and Exhibits. The Board hereby incorporates the recitals set forth in the preambles hereto as if set forth in full at this place and further finds and determines that said recitals are true and correct. In addition to the defined terms set forth below, those terms defined in the preambles hereto shall have the meanings given to such terms in the preambles. Attached hereto as Exhibit A is a schedule of the Series 1993 Bonds that may be "advance refunded" within the meaning of Federal tax laws relating to the treatment of interest on bonds such as the Series 1993 Bonds as exempt from Federal income taxation (the "Advance Refundable 1993 Bonds "). Exhibit A is attached for purposes of Section 2(e) hereof. Attached hereto as Exhibit B is a schedule showing the total monthly amounts to be deposited to the Bond Fund (the "Bond Fund ") being maintained by the Agency in accordance with the resolution pursuant to which the Series 1993 Bonds were authorized to be issued (the "1993 Resolution "). Exhibit B sets forth the monthly schedule for scheduled deposits made by the Agency to the Bond Fund for the payment of the Series 1993 Bonds that mature on and after September 1, 2013: Exhibit B is attached for purposes of illustration so that each City may apply their respective Contract Percentage to such payments to determine the maximum amount that may be prepaid by each City in accordance with Section 3 hereof. Section 2. Use of City Bond Proceeds. The Board hereby commits to and agrees for the benefit of a City making a payment to it derived from proceeds ( "City Bond Proceeds ") of City debt ( "City Bonds ") issued to discharge all or a portion of such City's Contractual Obligation pertaining to the Series 1993 Bonds to administer and apply the City Bond Proceeds in the manner set forth in this Section 2. In accordance with Section 4 below, the City making a deposit in accordance with this Section 2 will receive a credit with respect to a portion of such City's power purchase payments pertaining to the payment of the Series 1993 Bonds (the "Payment Credit "). (a) With respect to each deposit of City Bond Proceeds, the Agency will establish an escrow agreement (each, a "Bond Escrow Agreement ") for that deposit with a bank having an office in the State of Texas that is authorized by Chapter 1207 to serve as an escrow agent for the Series 1993 Bonds. A separate Bond Escrow Agreement will be established by the Agency with respect to each deposit made by a City from proceeds of each issue of City Bonds. (b) Amounts deposited to the escrow fund established pursuant to a Bond Escrow Agreement (the "Bond Escrow Fund") will be applied pursuant to the Bond Escrow Agreement to discharge an amount of Series 1993 Bonds designated in writing by a City, and with respect to the stated maturity or maturities of the Series 1993 Bonds specified in writing to the Agency by the City (such Series 1993 Bonds are the "Designated Bonds "). (c) Deposits made by a City in accordance with this Section 2 shall be made in amounts and be applied to pay the Designated Bonds in integral multiples of $5,000 of Maturity Value of the Designated Bonds. For purposes of this resolution, "Maturity Value" means with respect to each maturity of the Series 1993 Bonds the accreted value 3 of the principal amount of plus interest thereon compounded to the maturity date thereof, being the amount due for payment on the maturity date of such maturity of the Series 1993 Bonds. (d) Such deposit of City Bond Proceeds made in accordance with this Section 2 may be made as a "gross defeasance" or as a "net defeasance" of the Maturity Value of the Designated Bonds, as determined by a City making a deposit in accordance with this Section 2. For purposes of this Resolution, a "gross defeasance" shall mean a deposit made in the full Maturity Value of the Designated Bonds, exclusive of any investment earnings received from such deposit, and a "net defeasance" shall mean a deposit made of cash or eligible investments described in clause (g) in an amount which together with the interest earnings on such investments and any cash balances held in escrow will be sufficient to pay the Maturity Value of the Designated Bonds at the maturity date thereof (e) A City may not designate a portion of the Series 1993 Bonds as a Designated Bond if it exceeds the product of the Maturity Value coming due on the specified stated maturity date and the Contract Percentage of the City. With respect to a deposit to a Bond Escrow Fund made 91 days or more before the stated maturity of a Designated Bond, only a City's pro rata share of Advance Refundable Series 1993 Bonds as shown in Exhibit A may be specified by the City as Designated Bonds. (f) Other than the Payment Credit, a City making a deposit in accordance with this Section 2 to a Bond Escrow Fund will not be entitled to withdraw any amount deposited to a Bond Escrow Fund or to otherwise receive an offset for amounts owing to the Agency. Deposits received by the Agency in accordance with this Section 2 will be treated as revenues of the Agency for purposes of accounting and bond covenant compliance in the fiscal year of the Agency ("Fiscal Year ") that the funds are used to pay debt service on the Series 1993 Bonds. (g) City Bond Proceeds shall be invested at the direction of the City making a deposit. All deposited amounts shall be invested in U.S. Treasury State and Local Government Series securities ( "SLGS "), if available for purchase from the U.S. Treasury, or if not available, in other U.S. Treasury securities that are described in clause (i) of the definition of "Investment Securities" in the 1993 Resolution. (h) All investments of City Bond Proceeds will be made in a manner determined by the Agency to be consistent with the 1993 Resolution, Chapter 1207 and Federal tax law applicable to the City Bonds and to the Series 1993 Bonds. The Agency may rely on the advice of its bond counsel for such purpose. (i) The Agency will contract with the escrow agent to remit any excess amount remaining in a Bond Escrow Fund to the City that made the deposit upon the final payment of the last maturity of the Designated Bonds from proceeds administered pursuant to the respective Bond Escrow Agreement. 4 0) If a deposit is made by a City as a net defeasance of Designated Bonds, for the benefit of the Agency and the benefit of the City making the deposit, the Agency shall obtain a report (a "Report ") from a certified public accountant (a "CPA ") with respect to the sufficiency of the amount deposited to accomplish the legal defeasance of the Designated Bonds and with respect to the yield on the investments made with the City Bond Proceeds, the City Bonds and the Designated Bonds. If a deposit is made by a City as a gross defeasance of Designated Bonds, for the benefit of the Agency and the benefit of the City making the deposit, the Agency shall obtain (i) a certificate from the Agency's financial advisor or the paying agent/registrar for the Designated Bonds with respect to the sufficiency of the amount deposited to discharge the Designated Bonds or (ii) at the request of the City or upon the sole initiative of the Agency, a Report. (k) All costs charged by the escrow agent for the administration of a Bond Escrow Agreement, the costs of any CPA for a Report and of any costs associated with the investment of the City Bond Proceeds in securities other than SLGS shall be paid by the City making a deposit in accordance with this Section 2. (1) To permit the Agency reasonable time to establish and provide for the administration of Bond Escrow Agreements, no deposit may be made in accordance with this Section 2 unless the City has provided the Agency with not less than 45 days' notice of its intent to make the deposit; provided that at the sole discretion of the Agency, the Agency may permit a deposit to be made in accordance with this Section 2 upon fewer day's notice to the Agency. Section 3. Use of City Available Funds. The Board hereby commits to and agrees for the benefit of a City making a payment derived from a funding source other than proceeds of City Bonds (or otherwise applying funds in accordance with this Section 3) (the "City Available Funds ") for the purpose of prepaying all or a portion of its Contractual Obligation pertaining to the Series 1993 Bonds to administer and apply the City Available Funds in the manner set forth in this Section 3. The Agency understands that a City may use funds in a rate stabilization account, amounts to be rebated periodically to the City by the Agency (the "Rebated Funds ") or other non -City Bond Proceeds to make the deposits governed by this Section 3. City Available Funds (i) will not include any amount required to be paid to the Agency by a City as a power purchase payment due at the time of such deposit and (ii) will be an additional amount and a prepayment of a portion of a future payment of all or part of the City's Contractual Obligation pertaining to the Series 1993 Bonds (being the Debt Service component of the payment, and not the Operating and Maintenance Expenses). In accordance with Section 5 below, the City making a deposit of City Available Funds, including directing the use of Rebated Funds, in accordance with this Section 3 will receive a Payment Credit. (a) The Agency will establish an escrow agreement with a bank having an office in the State of Texas that is authorized by Chapter 1207 to serve as an escrow agent for the Series 1993 Bonds for any City that advises the Agency in writing that it will make deposits of City Available Funds with it for the purpose of receiving a Payment Credit. To the extent practicable, the Agency will establish and maintain a single escrow agreement for each City making a deposit of City Available Funds in accordance with this Section 3 (each such agreement is hereinafter referred to as an "Available Funds Escrow Agreement" and each escrow fund thereby established is an "Available Funds Escrow Fund "). (b) A City may make a single lump sum deposit to an Available Funds Escrow Fund during each Fiscal Year from City Available Funds to be applied as a Payment Credit, as provided in this Section 3 and in Section 5. Any lump sum deposit in accordance with this Section 3(b) may be designated by the City as a Payment Credit in the Fiscal Year in which the deposit is received by the Agency or in a future Fiscal Year. To make a designation, the City shall specify to the Agency at the time of such deposit the Fiscal Year and the month or months in that Fiscal Year that such deposit shall be applied. Amounts so designated by a City shall be released to the Bond Fund in accordance with such designation. At the sole discretion of the Agency, the Agency may permit more than one lump sum payment to be made by a City in a Fiscal Year. (c) A City may make periodic deposits of Rebated Funds or other City Available Funds to an Available Funds Escrow Fund to be applied as a Payment Credit, as provided in this Section 3 and in Section 5. Periodic deposits in accordance with this Section 3(c) may be designated by the City for application as a Payment Credit in a future Fiscal Year or Fiscal Years, but not in the same Fiscal Year in which received. Amounts so designated for future Fiscal Years shall be released to the Bond Fund for application in the designated Fiscal Year or Fiscal Years in accordance with such designation. (d) A City may make periodic deposits for application in the then current Fiscal Year, but such deposits will be deposited into the Bond Fund, not the Available Funds Escrow Fund, and the City will receive an offset for its current monthly payment amount equal to such Bond Fund deposits; such deposits will be administered like other, regularly scheduled power purchase payments, and will not be governed by the commitments set forth in this resolution. (e) Amounts deposited to an Available Funds Escrow Fund will be used pursuant to the Available Funds Escrow Agreement solely for the payment of a portion of the Series 1993 Bonds. Other than the Payment Credit, a City directing a deposit to an Available Funds Escrow Fund will not be entitled to withdraw any amount deposited to an Available Funds Escrow Fund or to otherwise receive an offset for amounts owing to the Agency. Deposits received by the Agency and administered pursuant to an Available Funds Escrow Agreement in accordance with this Section 3 will be treated as revenues of the Agency for purposes of accounting and bond covenant compliance in the Fiscal Year that the funds are released to the Bond Fund for purposes of paying debt service on the Series 1993 Bonds due for payment in that Fiscal Year. (f) A City may make one or more deposits to an Available Funds Escrow Fund subject to the provisions of this Section 3. At the time of each such deposit, the City shall 6 designate in writing the payment date(s) (day, month and year) and amount against which deposit shall be credited (the "Specified Payment "). (g) Deposits by a City to an Available Funds Escrow Fund in accordance with this Section 3 shall each be made in an integral multiple of $1. Each Specified Payment shall be designated in writing by the City. Each Specified Payment shall be all or part of the City's pro rata share of the monthly deposit to the Bond Fund as set forth in Exhibit B. The Agency shall periodically provide each City making a deposit to an Available Funds Escrow Fund with an accounting showing the amount and timing of the Payment Credit due to the City as a result of each designated deposit to an Available Funds Escrow Fund. (h) To the extent practicable, deposits of City Available Funds to an Available Funds Escrow Fund shall be invested at the direction of the Agency. All investments of City Available Funds deposited to an Available Funds Escrow Fund will be made in a manner determined by the Agency to be consistent with the 1993 Resolution and State and Federal tax law applicable to the Series 1993 Bonds. The Agency may rely on the advice of its bond counsel for such purpose. As soon as practicable following the close of each Fiscal Year, but not later than 120 days following the close of the Fiscal Year, the Agency will provide an accounting to each City having previously made a deposit to an Available Funds Escrow Fund of the investment earnings in the respective Available Funds Escrow Fund, and an additional Payment Credit equal to the investment earnings (the "Investment Credit ") shall be given in such amount against a payment date obligation mutually agreed to by the Agency and the respective City. Any Investment Credit due to a City following the final payment for the Series 1993 Bonds will be remitted to the City by the Agency. Any City, without regard to whether it has made a deposit, may request, and upon such request shall receive, a copy of an annual accounting provided to any depositing City by Agency. (i) All costs associated with the administration of the Available Funds Escrow Agreements pertaining to the deposit of City Available Funds in accordance with this Section 3 will be borne by the Agency. 0) To permit the Agency reasonable time to establish and provide for the administration of the Available Funds Escrow Agreements, no deposit may be made or series of deposits begun unless the City has provided the Agency with not less than 45 days' notice of its intent to make the deposit; provided that at the sole discretion of the Agency, the Agency may permit a deposit to be made in accordance with this Section 3 upon fewer days' notice to the Agency. Section 4. Payment Credits associated with City Bond Proceeds. Each City depositing City Bond Proceeds into a Bond Escrow Fund in accordance with Section 2 shall receive a Payment Credit (i) in the amount of the deposit if such deposit is a gross defeasance deposit or (ii) in the amount of the Designated Bonds if such deposit is a net defeasance deposit. The Agency will adopt uniform rates and charges for each City for the provision of power and energy and without regard to any deposit made or expected to be made by one or more Cities in accordance with Section 2, and the Agency will adopt and implement such rates at such times as the Board determines to be necessary for the proper operation of the Agency, and to meet the financial covenants and undertakings of the Agency to bondholders, credit providers and other creditors. The Payment Credit will be applied against the monthly power purchase payment owing to the Agency in accordance with the then current rates and charges of the Agency in level monthly amounts amortized over the months of the Fiscal Year of the stated maturity of the Series 1993 Bonds that the City designates as the Designated Bond, or level payments over the remaining months in the then current Fiscal Year if the stated maturity for such Fiscal Year is designated as the Designated Bond. Section 5. Payment Credits associated with City Available Funds. Each City depositing City Available Funds into an Available Funds Escrow Fund in accordance with Section 3 shall receive a Payment Credit in the amount of the deposit, plus the amount of any Investment Credit. The Agency will adopt uniform rates and charges for each City for the provision of power and energy and without regard to any deposit made or expected to be made by one or more Cities in accordance with Section 3, and the Agency will adopt and implement such rates at such times as the Board determines to be necessary for the proper operation of the Agency, and to meet the financial covenants and undertakings of the Agency to bondholders, credit providers and other creditors. The Payment Credit of each City will be applied in amounts equal to the cumulative amounts of the deposits to the applicable Available Funds Escrow Fund, and the Payment Credit will be applied against the monthly power purchase payment owing to the Agency in accordance with the then current rates and charges of the Agency and in accordance with the Specified Payments designated by the depositing City. The Investment Credit shall be applied in accordance with the then current rates and charges of the Agency and in accordance with Section 3(h). Section 6. Contracting and Investment Authority. The Board hereby authorizes the General Manager of the Agency to enter into one or more agreements, including Bond Escrow Agreements and Available Funds Escrow Agreements, for the purpose of administering the City Bond Proceeds and City Available Funds deposited with the Agency by each of the Cities for the purposes set forth herein. In addition, the General Manager of the Agency or his designee or designees (the "Authorized Persons ") are authorized to purchase such securities or otherwise invest funds deposited to the Bond Escrow Fund or Available Funds Escrow Fund, as may be necessary or appropriate for the purposes hereof, subject to the conditions of Sections 2 and 3 hereof. The Authorized Persons are further authorized to obtain such funding sufficiency letters, certificates or reports as may be needed to demonstrate the legal defeasance of the Series 1993 Bonds in accordance with Section 2 hereof, and the Authorized Persons are authorized to provide financial information to the Cities as they may require in connection with covenants and undertakings made in connection with any City Bonds issued for the purpose of providing the City Bond Proceeds. The General Manager is further authorized to enter into undertakings and agreements with the Cities, one or more, as he may deem necessary for the purpose of accomplishing the purposes of this Resolution, and to make all other arrangements as he may deem necessary to implement the purposes of this Resolution. The General Manager, the Controller of the Agency, and all other officers and employees of the Agency, and the financial advisor and bond counsel of the Agency, and each of them, are authorized and directed to take all necessary actions to accomplish the purposes of this Resolution. Section 7. Agency Agreements Relative to Tax - Exempt Bonds. The Board acknowledges that a City may issue refunding bonds to generate the City Bond Proceeds, and the interest on such City Bonds may be tax- exempt under the Federal income tax laws (the "Tax - Exempt City Bonds "). Moreover, the Board acknowledges that in connection with the issuance of the Tax - Exempt City Bonds, each City may covenant (the "City Bond Covenants ") with the holders of the Tax- Exempt City Bonds that the System Improvements and proceeds of such bonds will be used in a manner which assures that the Tax- Exempt City Bonds will qualify as obligations within the meaning of section 103 of the Internal Revenue Code. The Agency agrees not to use nor permit the use of the System Improvements or the City Bond Proceeds in a manner which it knows or should know would result in violation of the City Bond Covenants. Moreover, in furtherance thereof, if the Agency is notified by a City that its Tax- Exempt City Bonds have been selected for audit by the internal Revenue Service, then the Agency agrees to provide or cause to be provided to the City any information which is in its possession or in the possession of an entity acting on its behalf regarding the use of the City Bond Proceeds or the System Improvements as may be needed by the City to timely respond to questions posed by the Internal Revenue Service. Section 8. Condition to Effectiveness of this Resolution. This Resolution shall not be implemented until such time, if ever, that the Cities enter into an agreement approved by the appropriate governing body or bodies of each City, acknowledging and agreeing to the terms hereof. Passed and approved this the 12th day of July, 2012. President, Board of Directors Texas Municipal Power Agency Attest: 'z '(� z;z Secretary Texas Municipal Power Agency (Agency Seat) . .......... 10 Exhibit A The schedule of the Series 1993 Bonds that may be "advance refunded" within the meaning of Federal tax laws Due 9/1/2013 9/1/2014 9/1/2015 9/1/2016 9/1/2017 Series 1993 CABS Total PSI 101,290,000 112,335,000 120,725,000 120,725,000 120,730,000 $ 575,805,000 % of 1993 CABS eligible to be advance refunded 52.23°16 52,903,767 58,672,571 63,054,668 63,054,668 63,057,279 $ 300,742,952 1. n rl rl rl rl r. rl rl rl rl M m m m m m mw G1 G1 Q1 mm mm QaD] a+ C ri n n. P: ri ri n n n n n O1' Z L7 x cR w m m m m MMM mrn rn rn rnmm(n men m mm m M 00 ao ao 00 0o co 00 00 00 03 00 00 p O'O'O'O d g& Q �A �A 1 1 1 1 10 w O lD w 0 0 0 0 O 0 0 CDR 0 0 FQ O O e e e e e O O G ri ri ri ri ri r-1 r-1 r-1 N ri N N N ill ill V} ill V} IA iR VF ry1 N N r l rl r1 N r�l r1 N N N 1y 1L G C. g t C= t6 y� D Z O F. ". n n n n n n n n n n n ryer�� , ri ri ri ri W N N W M r-! N M C5 10 1O 1O lD lD a l0 l0 l0 1O l0 lD 0 0 0 0 0 0 0 0 0 0 0 0 O" r1 M N N r-I ri ri ri rl rl ri ri C IA N N :R V) ill ill V} ill t4 N N N N N N rl rl N r1 N N N x^ R d j A A § a N `y' y LLII � p e n n n n n n n n r• n n n a_ l0 l0 l0 l0 l0 l0 00 lO lO lO l0 lD m 0 0 0 0 0 0 0 0 0 0 0 0 01 O' d d G O' O' G 4 0 0 0 6" rf H r`I N M N rY M ri ri ri ri M N G -0 c Ni/l ill ill ill iR V}NNN NFN 0 cc -V -e qr N 1R N N 1R 1R M N 1n NN N N N N -1 rl rl N N 1y N N y Y O Z a 1 LL a N Y.. N 4f�3 L c A aj 3 L(I OeaOOOOOOOOLnpq lel lfl Ill 1e1 LPl Lf] LPl N 1l] Vl lel N br' N N N N N N N N N N NIA 7+ M r-� ri ri .--1 ri ri ri ri ri N O �• y W O O W LO W W lD 1O W lO W m M en m m m m m M M 1n c 00 C ui Qi Qi Qt Qt Q1 Qi Q1 m Q1 m O (Yr< iA Vl Vl ill VF ill N V} Vl iR N N . Ml QI e1'I e1'I e1'I v q - g 'I g -V H C 7+ C t6 6J �] U oZ o,�����,�RF M M Cm M M m m M M m m G it co coo m co W 00 W W W W om0 N Vie. O� m ew'; 0o as as aG 00 06 00 06 06 as as en ilia N; N i!Y ti1Y N iR VF ill N} N} N} NF N •. w enNNN rn en en en mm lnmeni' <Y; -1 .-1 ri N N N N N N[ L y y a m a a° d r±°$a 0 Z O m CA m m OQ OQ IA -0 C\, .--o CY) C) CY) N C") \l 04 LO C LA S. Q P 0 Q 0 ao C13 .. .. .. .. .. E X 0 E s- 5, U. C 0 (D � 0 z a E 0 2 2 z r- U. - 0 ■ -W 0 (L a u- ■ 0 a E o (D 0 0.0 U) 0 r -0 U • C E 0 2 0 U. U. le �: o C'4 N M uj o. . U cn (D Cl) a cv cn > O Q Z (D r (D 0 W a (D cn CO a O 46 r (D a C:) C:) C:) q q q. N 04 U) U') CC) co co C\J 04 04 C4 C4 C4 ■ r r r■ CD (.0 M, mmmi u-) m LO r� m m N cq co m co coi N N N N N N 69 64 64 It t —; C) C) (.0 000 000 000 C) CD CD CD CD CD CT 6 6 co CY) CY) It Nt Nt C6 C6 C6 f.S Q4 Q4 It t — C) C) (.0 ti � 6 rj 't LO —7 ci co m m 114" 't 't M co co 69 64 64 C) C) C) 0 0 0 U') LO LO N N LO 't LO U') LO LO N N N 69 64 64 Cl) = C) C) C) co C) C) C) C) CD CD CD CD CD LO N N m cn 000 (D (D 0 Cl) 69 64 64 LO (.0 1-- > U- U- U- ti C) C) 04 fl- I-- C) (D CM C) C) t a co M Lo M LQ LQ uj > r- co CC) Cf) U') LO (.0 cn ci C� C� m co co "o CD (.0 (.0 69 64 64 Cl) = C) C) C) co C) C) C) C) CD CD CD CD CD LO N N m cn 000 (D (D 0 Cl) 69 64 64 LO (.0 1-- > U- U- U- ti Exhibit 3 FirstStth st SAVINGS City of Denton, Texas General Obligation Refunding Bonds, Series 2015 (AA+ / AA +) * ** Refunded Bonds Only * ** Date Prior Debt Service Refunding Debt Service Savings 09/30/2016 1,827,137.50 1,816,770.56 10,366.94 09/30/2017 7,657,637.50 6,586,625.00 1,071,012.50 09/30/2018 8,071,487.50 7,000,625.00 1,070,862.50 09/30/2019 7,728,487.50 6,653,750.00 1,074,737.50 09/30/2020 7,746,850.00 6,675,250.00 1,071,600.00 09/30/2021 3,657,200.00 2,878,250.00 778,950.00 09/30/2022 3,674,037.50 2,892,125.00 781,912.50 09/30/2023 2,469,918.75 1,689,750.00 780,168.75 09/30/2024 656,437.50 356,875.00 299,562.50 09/30/2025 659,053.13 355,750.00 303,303.13 09/30/2026 659,915.63 358,750.00 301,165.63 44,808,162.51 37,264,520.56 7,543,641.95 Savings Summary Savings PV date 09/23/2015 PV of savings from cash flow 6,981,529.62 Less: Prior funds on hand - 3,950,000.00 Net PV Savings Note: Preliminary, for illsutrative purposes only. 3,031,529.62 Jul 17, 2015 8:51 am Prepared by FirstSouthwest (aml) (Finance 7.012 DENTON:GO_2015) Page 17 � u U U >, M o s; -a _c s u .c u v, M o .n .n � o 0 o c >, o U M U .c � � o � u o is� O �ti tfJ G � U � � o o G. u M o G � o u - IG u u Exhibit 4 PRELIMINARY OFFICIAL STATEMENT Ratings First5mit G e t.� Fitch „� ., Dated August a, 2015 S &P ". (See "Other Information - NEW ISSUE - Book-Entry-Only Ratings" herein) hi the opinion of Bond Counsel, interest on the Bonds will be excludable from gross income for federal income tax purposes under statutes, regulations, published rulings and court decisions existing on the date thereof, subject to the matters described under "Tax Matters" herein, including the alternative minimum tax on corporations. THE BONDS WILL NOT BE DESIGNATED AS "QUALIFIED TAX - EXEMPT OBLIGATIONS" FOR FINANCIAL INSTITUTIONS $34,260,000* lfaw� CITY OF DENTON, TEXAS (Denton County) DE NI ." N GENERAL OBLIGATION REFUNDING BONDS, SERIES 2015 Dated Date: August 15, 2015 Due: February 15, as shown below Interest Accrues from Delivery Date PAYMENT TERMS ... Interest on the $34,260,000* City of Denton, Texas General Obligation Refunding Bonds, Series 2015 (the 'Bonds ") will accrue from the delivery date (the "Delivery Date "), will be payable February 15 and August 15 of each year, commencing February 15, 2016, until maturity or prior redemption, and will be calculated on the basis of a 360 -day year consisting of twelve 30 -day months. The definitive Bonds will be initially registered and delivered only to Cede & Co., the nominee of The Depository Trust Company ( "DTC ") pursuant to the Book - Entry-Only System described herein. Beneficial ownership of the Bonds may be acquired in denominations of $5,000 or integral multiples thereof within a maturity. No physical delivery of the Bonds will be made to the beneficial owners thereof. Principal of, premium, if any, and interest on the Bonds will be payable by the Paying Agent /Registrar to Cede & Co., which will make distribution of the amounts so paid to the participating members of DTC for subsequent payment to the beneficial owners of the Bonds. See "The Bonds - Book - Entry-Only System" herein. The initial Paying Agent/Registrar is The Bank of New York Mellon Trust Company, N.A., Dallas, Texas (see "The Bonds - Paying Agent /Registrar "). AUTHORITY FOR ISSUANCE ... The Bonds are issued pursuant to the Constitution and general laws of the State of Texas, (the "State ") including particularly Texas Government Code, Chapter 1207, as amended, and are direct obligations of the City of Denton, Texas (the "City "), payable from an annual ad valorem tax levied, within the limits prescribed by law, on all taxable property within the City, as provided in the Bond Ordinance (defined herein) authorizing the Bonds (see "The Bonds - Authority for Issuance" and "The Bonds — Security and Source of Payment"). PURPOSE ... Proceeds of the Bonds, together with certain City fiends, are expected to be used (i) to refund certain outstanding obligations of the City described on Schedule I attached hereto (the "Refunded Bonds ") for debt service savings; (ii) to refinance a portion of the City's contractual obligations (the "Refunded TMPA Obligations ") to the Texas Municipal Power Agency (the "TMPA ") under a power sales contract with the TMPA, specifically in respect to the refunding of approximately $13,430,000 in maturity value of certain outstanding TMPA bonds; and (iii) to pay the costs associated with the issuance of the Bonds (see "Plan of Financing "). Principal Interest Amount Maturity Rate $ 435,000 2016 5,175,000 2017 5,865,000 2018 6,250,000 2019 6,595,000 2020 3,035,000 2021 MATURITY SCHEDULE* Initial CUSIP Yield Suffix') Principal Amount Maturity $ 3,205,000 2022 2,140,000 2023 880,000 2024 330,000 2025 350,000 2026 CUSIP Prefix: 248866 (r) Interest Initial CUSIP Rate Yield Suffix (1) (1) CUSIP is a registered trademark of the American Bankers Association. CUSIP data herein is provided by CUSIP Global Services, managed by Standard & Poor's Financial Services LLC on behalf of the American Bankers Association. This data is not intended to create a database and does not serve in any way as a substitute for the CUSIP Services. None of the City, the Initial Purchaser or the Financial Advisor shall be responsible for the selection or correctness of the CUSIP numbers set forth herein. REDEMPTION ... The City reserves the right, at its option, to redeem Bonds having stated maturities on and after February 15, 2026, in whole or in part in principal amounts of $5,000 or any integral multiple thereof, on February 15, 2025, or any date thereafter, at the par value thereof plus accrued interest to the date of redemption (see "The Bonds — Optional Redemption "). LEGALITY ... The Bonds are offered for delivery when, as and if issued and received by the Initial Purchaser subject to the approving opinion of the Attorney General of Texas and the opinion of McCall, Parkhurst & Horton L.L.P., Bond Counsel, Dallas, Texas (see Appendix C, "Form of Bond Counsel's Opinion "). DELIVERY ... It is expected that the Bonds will be available for delivery through The Depository Trust Company on September 23, 2015. SEALED BIDS DUE WEDNEDSAY, AUGUST 19, 2015, AT 11:00 AM, CDT ** * Preliminary, subject to change. See "Adjustment of Principal Amount and /or Types of Bids" herein. ** Place and Time of Bid Opening ... The City will accept bids for the sale of the Bonds on a day during the period beginning August 19, 2015 and initially ending September 2, 2015. At least 12 hours prior to the sale of the Bonds, First Southwest Company, LLC, as Financial Advisor to the City, will communicate, through Parity and Bloomberg, the date and time for submission of bids. The Financial Advisor, acting on behalf of the City, shall accept bids up to the time specified in the notice as herembefore described. This Official Statement, which includes the cover page, Schedule and the Appendices hereto, does not constitute an offer to sell or the solicitation of an offer to buy in any jurisdiction to any person to whom it is unlawful to make such offer, solicitation, or sale. No dealer, broker, salesperson, or other person has been authorized to give information or to make any representation other than those contained in this Official Statement, and, ifgiven or made, such other information or representations must not be relied upon. For purposes of compliance with Rule 15c 2 -12 of the Securities and Exchange Commission (the "Rule'), this document constitutes an Official Statement of the City with respect to the Bonds that has been "deemed final" by the City as of its date except for the omission of no more than the information permitted by the Rule. The information set forth herein has been obtained from the City and other sources believed to be reliable, but such information is not guaranteed as to accuracy or completeness and is not to be construed as the representation, promise, or guarantee of the Financial Advisor. Any information and expressions of opinion herein contained are subject to change without notice, and neither the delivery of this Official Statement nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the City or other matters described herein since the date hereof See "Other Information - Continuing Disclosure of Information" for a description of the City's undertaking to provide certain information on a continuing basis. Neither the City nor its Financial Advisor make any representation as to the accuracy, completeness, or adequacy of the information supplied by The Depository Trust Company for use in this Official Statement. THIS OFFICIAL STATEMENT CONTAINS "FORWARD- LOOKING" STATEMENTS WITHIN THE MEANING OF SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. SUCH STATEMENTS MAY INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES, AND OTHER FACTORS WHICH MAY CAUSE THE ACTUAL RESULTS, PERFORMANCE, AND ACHIEVEMENTS TO BE DIFFERENT FROM FUTURE RESULTS, PERFORMANCE, AND ACHIEVEMENTS EXPRESSED OR IMPLIED BY SUCH FORWARD - LOOKING STATEMENTS. INVESTORS ARE CAUTIONED THAT THE ACTUAL RESULTS COULD DIFFER MATERIALLY FROM THOSE SET FORTH IN THE FOR WARD- LOOKING STATEMENTS. THE BONDS ARE EXEMPT FROM REGISTRATION WITH THE SECURITIES AND EXCHANGE COMMISSION AND CONSEQUENTLY HAVE NOT BEEN REGISTERED THEREWITH. THE REGISTRATION, QUALIFICATION, OR EXEMPTION OF THE BONDS IN ACCORDANCE WITH APPLICABLE SECURITIES LAW PROVISIONS OF THE JURISDICTION IN WHICH THE BONDS HAVE BEEN REGISTERED, QUALIFIED OR EXEMPTED SHOULD NOT BE REGARDED AS A RECOMMENDATION THEREOF. OFFICIAL STATEMENT SUMMARY .........................3 CITY OFFICIALS, STAFF AND CONSULTANTS ..... 5 ELECTED OFFICIALS .............................. ............................... 5 SELECTED ADMINISTRATIVE STAFF ........ ..............................5 35 CONSULTANTS AND ADVISORS ............... ..............................5 35 INTRODUCTION .............................. ..............................7 LEGAL INVESTMENTS AND ELIGIBILITY TO SECURE PUBLIC PLAN OF FINANCING ..................... ..............................7 FUNDS IN TEXAS ...................... ............................... THE BONDS ....................................... ..............................9 LEGAL OPINIONS AND NO- LITIGATION CERTIFICATE ........ TAX INFORMATION ...................... .............................14 AUTHENTICITY OF FINANCIAL DATA AND OTHER TABLE 1 - VALUATION, EXEMPTIONS AND GENERAL INFORMATION .......................... ............................... OBLIGATION DEBT ...................... .............................19 FINANCIAL ADVISOR ........................... ............................... TABLE 2 - TAXABLE ASSESSED VALUATIONS BY VERIFICATION OF ARITHMETICAL AND MATHEMATICAL CATEGORY ................................. .............................20 COMPUTATIONS ....................... ............................... TABLE 3 - VALUATION AND GENERAL OBLIGATION INITIAL PURCHASER OF THE BONDS .... ............................... DEBT HISTORY ........................... .............................21 CERTIFICATION OF THE OFFICIAL STATEMENT .................. TABLE 4 - TAX RATE, LEVY AND COLLECTION FORWARD - LOOKING STATEMENTS DISCLAIMER ................ HISTORY................................... ............................... 21 TABLE 5 - TEN LARGEST TAXPAYERS .. .............................21 TABLE 6 - ESTIMATED OVERLAPPING TAX DEBT ..............22 DEBT INFORMATION .................... .............................23 TABLE 7 - GENERAL OBLIGATION DEBT SERVICE REQUIREMENTS .......................... .............................23 TABLE 8 - INTEREST AND SINKING FUND BUDGET PROJECTION .............................. ............................... 24 TABLE 9 - COMPUTATION OF SELF - SUPPORTING DEBT..... 24 TABLE 10 - AUTHORIZED BUT UNISSUED GENERAL OBLIGATION BONDS ................... .............................24 TABLE 11 - OTHER OBLIGATIONS ........ .............................25 FINANCIAL INFORMATION ........ .............................27 TABLE 12 - CHANGES IN NET POSITION ............................27 TABLE 12A - GENERAL FUND REVENUES AND EXPENDITURE HISTORY .............. .............................28 TABLE 13 - MUNICIPAL SALES TAX HISTORY ...................29 INVESTMENTS ................................ .............................30 TABLE 14- CURRENT INVESTMENTS ...... .............................31 TAX MATTERS .............................. ............................... 32 CK110 1Y lot" 101 011 Me1[ 17 .111N9[1]91101 all] Nu/11Y111010 OTHER INFORMATION .............. ............................... 35 RATINGS............................................. ............................... 35 LITIGATION ......................................... ............................... 35 REGISTRATION AND QUALIFICATION OF BONDS FOR SALE 35 LEGAL INVESTMENTS AND ELIGIBILITY TO SECURE PUBLIC FUNDS IN TEXAS ...................... ............................... 36 LEGAL OPINIONS AND NO- LITIGATION CERTIFICATE ........ 36 AUTHENTICITY OF FINANCIAL DATA AND OTHER INFORMATION .......................... ............................... 36 FINANCIAL ADVISOR ........................... ............................... 36 VERIFICATION OF ARITHMETICAL AND MATHEMATICAL COMPUTATIONS ....................... ............................... 37 INITIAL PURCHASER OF THE BONDS .... ............................... 37 CERTIFICATION OF THE OFFICIAL STATEMENT .................. 37 FORWARD - LOOKING STATEMENTS DISCLAIMER ................ 37 MISCELLANEOUS ................................ ............................... 38 SCHEDULE OF REFUNDED BONDS ............ Schedule I APPENDICES GENERAL INFORMATION REGARDING THE CITY .......... A EXCERPTS FROM THE CITY'S COMPREHENSIVE ANNUAL FINANCIAL REPORT . ............................... B FORM OF BOND COUNSEL'S OPINION .......................... C The cover page hereof, this page, the schedule, the appendices included herein and any addenda, supplement or amendment hereto, are part of the Official Statement. OFFICIAL STATEMENT SUMMARY This summary is subject in all respects to the more complete information and definitions contained or incorporated in this Official Statement. The offering of the Bonds to potential investors is made only by means of this entire Official Statement. No person is authorized to detach this summary from this Official Statement or to otherwise use it without the entire Official Statement. THE CITY ...... ............................... The City of Denton (the "City") is a political subdivision and municipal corporation of the State, located in Denton County, Texas. The City covers approximately 97.411 square miles (see "Introduction - Description of the City"). THE BONDS ... ............................... The $34,260,000* City of Denton, Texas General Obligation Refunding Bonds, Series 2015 are to mature on February 15 in the years 2016 through 2026 (see "The Bonds - Description of the Bonds"). PAYMENT OF INTEREST ............... Interest on the Bonds accrues from the Delivery Date (defined herein) and is payable February 15, 2016 and each August 15 and February 15 thereafter until maturity or prior maturity (see "The Bonds - Description of the Bonds" and "The Bonds — Optional Redemption "). AUTHORITY FOR ISSUANCE.......... The Bonds are issued pursuant to the Constitution and general laws of the State, including particularly Texas Government Code, Chapter 1207, as amended, and an ordinance (the "Authorizing Bond Ordinance ") of the City in which the City Council delegated to each of the City Manager and an Assistant City Manager authority to complete the sale of the Bonds. The terms of the sale will be included in a "Pricing Certificate," which will complete the sale of the Bonds (the Authorizing Bond Ordinance and the Pricing Certificate for the Bonds are jointly referred to as the "Bond Ordinance ") (see "The Bonds - Authority for Issuance "). SECURITY FOR THE BONDS .......... The Bonds constitute direct obligations of the City, payable from a direct annual ad valorem tax levied, within the limits prescribed by law, on all taxable property located within the City (see "The Bonds - Security and Source of Payment "). REDEMPTION ............................... The City reserves the right, at its option, to redeem the Bonds having stated maturities on and after February 15, 2026, in whole or in part in principal amounts of $5,000 or any integral multiple thereof, on February 15, 2025, or any date thereafter, at the par value thereof plus accrued interest to the date of redemption (see "The Bonds - Optional Redemption "). TAX EXEMPTION ............................ In the opinion of Bond Counsel, the interest on the Bonds will be excludable from gross income for federal income tax purposes under existing law, subject to the matters described under "Tax Matters" herein, including the alternative minimum tax on corporations. USE OF PROCEEDS ....................... Proceeds of the Bonds, together with certain City funds, are expected to be used (i) to refund certain outstanding obligations of the City described on Schedule I attached hereto (the "Refunded Bonds ") for debt service savings; (ii) to refinance a portion of the City's contractual obligations (the "Refunded TMPA Obligations ") to the Texas Municipal Power Agency (the "TMPA ") under a power sales contract with the TMPA, specifically in respect to the refunding of approximately $13,430,000 in maturity value of certain outstanding TMPA bonds; and (iii) to pay the costs associated with the issuance of the Bonds (see "Plan of Financing "). RATINGS .......... ............................ The Bonds and the presently outstanding general obligation debt of the City are rated by Fitch Ratings ( "Fitch ") and "f" by Standard & Poor's Rating Services, a Standard & Poor's Financial Services LLC business ( "S &P "). BOOK - ENTRY -ONLY SYSTEM...... The definitive Bonds will be initially registered and delivered only to Cede & Co., the nominee of DTC pursuant to the Book - Entry-Only System described herein. Beneficial ownership of the Bonds may be acquired in denominations of $5,000 or integral multiples thereof within a maturity. No physical delivery of the Bonds will be made to the beneficial owners thereof. Principal of, premium, if any, and interest on the Bonds will be payable by the Paying Agent/Registrar to Cede & Co., which will make distribution of the amounts so paid to the participating members of DTC for subsequent payment to the beneficial owners of the Bonds (see "The Bonds - Book -Entry-Only System "). PAYMENT RECORD ...................... The City has never defaulted on the payment of its tax - supported indebtedness * Preliminary, subject to change SELECTED FINANCIAL INFORMATION (1) Source: City Officials. (2) Valuations shown are certified taxable assessed values reported by the Denton Central Appraisal District to the State Comptroller of Public Accounts. Certified values are subject to change throughout the year as contested values are resolved and the Appraisal District updates records. (3) Includes tax incremental value of approximately $2,300,954 that is not available for the City's general obligations and debt of City. (4) Includes tax incremental value of approximately $10,248,781 that is not available for the City's general obligations and debt of City. (5) Includes tax incremental value of approximately $16,931,096 that is not available for the City's general obligations and debt of City. (6) Includes tax incremental value of approximately $35,975,197 that is not available for the City's general obligations and debt of City. Source: Denton Central Appraisal District as of September 3, 2014. (7) Excludes self - supported general obligation debt. (8) Projected. Excludes the Bonds as they are self - supported through the Utility System. Preliminary, subject to change. (9) Collections for part year only, through July 1, 2015. 4 Net Ratio Net Fiscal Taxable Tax Debt Per Capita Tax Debt to Year Taxable Assessed Outstanding Net Funded Taxable % of Ended Estimated Assessed Valuation at End of Tax Assessed Total Tax 9/30 Population (1) Valuation (2) Per Capita Fiscal Year (7) Debt Valuation Collections 2011 114,517 $6,230,117,958 $54,403 $116,165,650 $1,014 1.86% 99.72% 2012 115,662 6,412,375,004 (3) 55,441 113,939,700 985 1.78% 99.71% 2013 117,397 6,716,711,368 (4) 57,214 120,375,588 1,025 1.79% 99.66% 2014 119,158 6,979,224,274 ts) 58,571 123,827,115 1,039 1.77% 99.35% 2015 120,945 7,797,177,608 te) 64,469 135,879,058 t8) 1,123(8) 1.74% 98.93 %(�) (1) Source: City Officials. (2) Valuations shown are certified taxable assessed values reported by the Denton Central Appraisal District to the State Comptroller of Public Accounts. Certified values are subject to change throughout the year as contested values are resolved and the Appraisal District updates records. (3) Includes tax incremental value of approximately $2,300,954 that is not available for the City's general obligations and debt of City. (4) Includes tax incremental value of approximately $10,248,781 that is not available for the City's general obligations and debt of City. (5) Includes tax incremental value of approximately $16,931,096 that is not available for the City's general obligations and debt of City. (6) Includes tax incremental value of approximately $35,975,197 that is not available for the City's general obligations and debt of City. Source: Denton Central Appraisal District as of September 3, 2014. (7) Excludes self - supported general obligation debt. (8) Projected. Excludes the Bonds as they are self - supported through the Utility System. Preliminary, subject to change. (9) Collections for part year only, through July 1, 2015. 4 CITY OFFICIALS, STAFF AND CONSULTANTS ELECTED OFFICIALS Term City Council Expires Chris Watts May, 2016 Mayor Kevin Roden May, 2017 Councilmember, District 1 Keely Briggs May, 2017 Councilmember, District 2 Kathleen Wazny May, 2017 Councilmember, District 3 Joey Hawkins May, 2017 Councilmember, District 4 Dalton Gregory May, 2016 Councilmember, At Large Place 5 Greg Johnson May, 2016 Councilmember, At Large Place 6 SELECTED ADMINISTRATIVE STAFF Name Position George C. Campbell City Manager Jon Fortune Assistant City Manager John Cabrales Assistant City Manager Howard Martin Assistant City Manager Bryan Langley Assistant City Manager /CFO Chuck Springer Director of Finance Jennifer K. Walters City Secretary Anita Burgess City Attorney CONSULTANTS AND ADVISORS Auditors.......................................................................................................................................... ............................... Weaver, LLP Dallas, Texas Bond Counsel .............................................................................................. ............................... McCall, Parkhurst & Horton L.L.P. Dallas, Texas Financial Advisor ............................................................................................... ............................... First Southwest Company, LLC Fort Worth, Texas For additional information regarding the City, please contact: Bryan Langley David Medanich Assistant City Manager /CFO Laura Alexander City of Denton First Southwest Company 215 E. McKinney Street or 777 Main Street, Suite 1200 Denton, Texas 76201 Fort Worth, Texas 76102 (940) 349 -8224 (817) 332 -9710 5 THIS PAGE LEFT BLANK INTENTIONALLY OFFICIAL STATEMENT RELATING TO $34,260,000* CITY OF DENTON, TEXAS GENERAL OBLIGATION REFUNDING BONDS, SERIES 2015 INTRODUCTION This Official Statement, which includes the Schedule and Appendices hereto, provides certain information regarding the issuance of $34,260,000* City of Denton, Texas General Obligation Refunding Bonds, Series 2015 (the "Bonds "). The City Council adopted an ordinance on August 4, 2015 authorizing the issuance of the Bonds (the "Authorizing Bond Ordinance "). In the Authorizing Bond Ordinance, as permitted by the provisions of Chapter 1207, Texas Government Code, as amended, the City Council delegated the authority to each of the City Manager and an Assistant City Manager to establish the terms and details of the Bonds and to effect the sale of the Bonds pursuant to a "Pricing Certificate" (the Authorizing Bond Ordinance and the Pricing Certificate for the Bonds are jointly referred to as the "Bond Ordinance "). Capitalized terms used in this Official Statement have the same meanings assigned to such terms in the Bond Ordinance, except as otherwise indicated herein. There follows in this Official Statement descriptions of the Bonds and certain information regarding the City and its finances. All descriptions of documents contained herein are only summaries and are qualified in their entirety by reference to each such document. Copies of such documents may be obtained from the City's Financial Advisor, First Southwest Company, LLC, Dallas, Texas. DESCRIPTION OF THE CITY ... The City of Denton, Texas (the "City") is a political subdivision located in Denton County operating as a home -rule city under the laws of the State of Texas and a charter approved by the voters in 1959. The City operates under the Council/Manager form of government where the Mayor and six Councilmembers are elected for staggered two -year terms. The City Council formulates operating policy for the City while the City Manager is the chief administrative officer. The City is approximately 97.411 square miles in area. PLAN OF FINANCING PURPOSE ... Proceeds of the Bonds, together with certain City funds, are expected to be used (i) to refund certain outstanding obligations of the City described on Schedule I attached hereto (the "Refunded Bonds ") for debt service savings; (ii) to refinance a portion of the City's contractual obligations (the "Refunded TMPA Obligations ") to the Texas Municipal Power Agency (the "TMPA ") under a power sales contract with the TMPA, specifically in respect to the refunding of approximately $13,430,000 in maturity value of certain outstanding TMPA bonds; and (iii) to pay the costs associated with the issuance of the Bonds. REFUNDED BONDS ... Proceeds from the sale of the Bonds will be used in part to refund the Refunded Bonds. The principal and interest due on the Refunded Bonds are to be paid on the redemption date of such Refunded Bonds as shown in Schedule I, from funds to be deposited pursuant to an escrow agreement with respect to the Refunded Bonds (the "Refunded Bonds Escrow Agreement ") between the City and The Bank of New York Mellon Trust Company, N.A. (the "Refunded Bonds Escrow Agent "). The Bond Ordinance provides that from the proceeds of the sale of the Bonds received from the Initial Purchasers, together with other funds of the City, the City will deposit with the Refunded Bonds Escrow Agent an amount which, together with the Refunded Bonds Escrowed Securities (defined below) purchased with a portion of the Bond proceeds and the interest to be earned on such Refunded Bonds Escrowed Securities, will be sufficient to accomplish the discharge and final payment of the Refunded Bonds on their redemption date. Such funds will be held by the Refunded Bonds Escrow Agent in a special escrow account (the "Refunded Bonds Escrow Fund ") and used to purchase direct obligations of the United States of America (the "Refunded Bonds Escrowed Securities "). Under the Refunded Bonds Escrow Agreement, the Refunded Bonds Escrow Fund is irrevocably pledged to the payment of the principal of and interest on the Refunded Bonds. Grant Thornton LLP ( "Grant Thornton "), certified public accountants, a nationally recognized accounting firm, will issue its report (the "Report") verifying at the time of delivery of the Bonds to the Initial Purchaser thereof the mathematical accuracy of the schedules that demonstrate the Refunded Bonds Escrowed Securities will mature and pay interest in such amounts which, together with uninvested funds, if any, in the Refunded Bonds Escrow Fund, will be sufficient to pay, when due, the principal of and interest on the Refunded Bonds. Such maturing principal of and interest on such Refunded Bonds Escrowed Securities will not be available to pay the Bonds (see "Other Information — Verification of Arithmetical and Mathematical Computations "). * Preliminary, subject to change. By deposit of the Refunded Bonds Escrowed Securities and cash with the Refunded Bonds Escrow Agent pursuant to the Refunded Bonds Agreement, the City will have effected the defeasance of all the Refunded Bonds in accordance with the law. It is the opinion of Bond Counsel that as a result of such defeasance and in reliance upon the report of Grant Thornton, the Refunded Bonds will be outstanding only for the purpose of receiving payments from the Refunded Bonds Escrowed Securities on deposit in the Refunded Bonds Escrow Fund and any cash held for such purpose by the Refunded Bonds Escrow Agent and such Refunded Bonds will not be deemed as being outstanding obligations of the City payable from taxes or other revenues received by the City, as the case may be, or for the purpose of applying any limitation on the issuance of debt, and the City will have no further responsibility with respect to amounts available in the Refunded Bonds Escrow Fund for the payment of the Refunded Bonds from time to time, including any insufficiency therein caused by the failure of to receive payment when due on the Refunded Bonds Escrowed Securities. REFUNDED TMPA OBLIGATIONS ... The Texas Municipal Power Agency ( "TMPA ") is a joint powers agency and a political subdivision of the State of Texas and functions solely to generate and transmit electric power to its member cities (the "Member Cities "). The City is a Member City of TMPA and, along with each other Member City, appoints two members to the eight member board of directors of TMPA (the "TMPA Board "). The City and the three other TMPA Member Cities (City of Bryan, Texas, City of Garland, Texas, and City of Greenville, Texas) have entered into identical Power Sales Contracts dated September 1, 1976, as amended (the "TMPA Power Sales Agreement "), under which TMPA is obligated to sell electric energy to the Member Cities, and each Member City is unconditionally obligated to pay a percentage of TMPA's operating and maintenance expenses, TMPA's debt service on its bonds and other debts and certain other costs, without regard to whether energy is delivered by TMPA to, or used by, a Member City. The contractual percentages of each Member City to TMPA are currently as follows: City of Bryan, Texas: 21.7% City of Denton, Texas: 21.3% City of Garland, Texas: 47.0% City of Greenville, Texas: 10.0% TMPA has its Revenue Refunding Bonds, Series 1993 outstanding which were issued in the form of capital appreciation bonds that have an aggregate maturity value of $474,515,000 (the "TMPA Series 1993 Bonds "), and which have been issued to refund previously issued bonds by TMPA that were issued to finance improvements to TMPA's electric and transmission system. In accordance with resolution 2012 -7 -8 adopted by the TMPA Board on July 12, 2012 (the "TMPA Resolution ") and an agreement among the Member Cities, each Member City may individually prepay or restructure the portion of the contractual obligations under the TMPA Power Sales Agreement of the Member Cities represented by the Series 1993 Bonds through the use of cash or proceeds of bonds issued by a Member City. The Bonds are being issued in part for the purpose of refinancing a portion of the City's contractual obligations to TMPA under the TMPA Power Sales Agreement, specifically in respect to the September 1, 2016 maturity of the TMPA Series 1993 Bonds with an aggregate maturity value of $120,725,000. A portion of the proceeds of the Bonds will be used to satisfy a portion of the City's obligation with respect to the September 1, 2016 maturity value of the TMPA Series 1993 Bonds, in the approximate amount of $13,430,000. In accordance with the TMPA Resolution, TMPA and the City will enter into an escrow agreement (the "Refunded TMPA Obligations Escrow Agreement ") with The Bank of New York Mellon Trust Company, N.A. (the "Refunded TMPA Obligations Escrow Agent "). The Refunded TMPA Obligations Escrow Agreement provides that amounts deposited into the escrow fund created by the Refunded TMPA Obligations Escrow Agreement (the "Refunded TMPA Obligations Escrow Fund ") will be used to purchase direct obligations of the United States of America (the "Refunded TMPA Obligations Escrowed Securities "). Under the Refunded TMPA Obligations Escrow Agreement, the Refunded TMPA Obligations Escrow Fund is irrevocably pledged to the payment of the principal of and interest on the TMPA Series 1993 Bonds being refunded with the Bonds (the "Refunded TMPA Bonds "). In the Report, Grant Thornton will verify at the time of delivery of the Bonds to the Initial Purchaser thereof the mathematical accuracy of the schedules that demonstrate the Refunded TMPA Obligations Escrowed Securities will mature and pay interest in such amounts which, together with uninvested funds, if any, in the Refunded TMPA Obligations Escrow Fund, will be sufficient to pay, when due, the principal of and interest on the Refunded TMPA Bonds. Such maturing principal of and interest on such Refunded TMPA Obligations Escrowed Securities will not be available to pay the Bonds (see "Other Information — Verification of Arithmetical and Mathematical Computations "). By the deposit of the Refunded TMPA Obligations Escrowed Securities and cash with the Refunded TMPA Obligations Escrow Agent pursuant to the Refunded TMPA Obligations Escrow Agreement, TMPA will have effected the defeasance of the Refunded TMPA Bonds in accordance with applicable State law. The City will have no further responsibility with respect to amounts available in the Refunded TMPA Obligations Escrow Fund for the payment of the Refunded TMPA Bonds from time to time, including any insufficiency therein caused by the failure of to receive pay when due on the Refunded TMPA Obligations Escrowed Securities. SOURCES AND USES OF FUNDS ... The proceeds from the sale of the Bonds, together with other City funds, if any, will be applied as follows: Sources of Funds Par Amount $ - Cash Premium Bid - Transfer from Revenue Bond Debt Service Reserve Fund - Total Sources of Funds $ - Uses of Funds Deposit to Refunded TMPA Obligations Escrow Fund $ - Deposit to Refunded Bonds Fund - Cost of Issuance - Total Uses of Funds $ - THE BONDS DESCRIPTION OF THE BONDS ... The Bonds are dated August 15, 2015, and mature on February 15 in each of the years and in the amounts shown on the cover page hereof. Interest will accrue from the date of initial delivery thereof (the "Delivery Date "), will be computed on the basis of a 360 -day year of twelve 30 -day months, and will be payable on February 15 and August 15 of each year, commencing February 15, 2016, until maturity or prior redemption. The definitive Bonds will be issued only in fully registered form in any integral multiple of $5,000 for any one maturity and will be initially registered and delivered only to Cede & Co., the nominee of The Depository Trust Company ( "DTC ") pursuant to the Book - Entry-Only System described herein. No physical delivery of the Bonds will be made to the beneficial owners thereof. Principal of, premium, if any, and interest on the Bonds will be payable by the Paying Agent/Registrar to Cede & Co., which will make distribution of the amounts so paid to the participating members of DTC for subsequent payment to the beneficial owners of the Bonds. See "The Bonds - Book -Entry- Only System" herein. AUTHORITY FOR ISSUANCE ... The Bonds are being issued pursuant to the Constitution and general laws of the State of Texas, particularly Chapter 1207, Texas Government Code, as amended, and the Bond Ordinance. SECURITY AND SOURCE OF PAYMENT ... The Bonds constitute direct obligations of the City and the principal thereof and interest thereon are payable from an annual ad valorem tax levied by the City, within the limits prescribed by law, upon all taxable property in the City, as provided in the Bond Ordinance. TAx RATE LIMITATION ... All taxable property within the City is subject to the assessment, levy and collection by the City of a continuing, direct annual ad valorem tax sufficient to provide for the payment of principal of and interest on all ad valorem tax debt, including the Bonds, within the limits prescribed by law. Article XI, Section 5, of the Texas Constitution is applicable to the City, and limits its maximum ad valorem tax rate to $2.50 per $100 Taxable Assessed Valuation for all City purposes. The Home Rule Charter of the City adopts the constitutionally authorized maximum tax rate of $2.50 per $100 Taxable Assessed Valuation. Administratively, the Attorney General of the State of Texas will permit allocation of $1.50 of the $2.50 maximum tax rate for all general obligation debt, as calculated at the time of issuance and based on 90% tax collection factor. OPTIONAL REDEMPTION ... The City reserves the right, at its option, to redeem Bonds having stated maturities on and after February 15, 2026, in whole or in part in principal amounts of $5,000 or any integral multiple thereof, on February 15, 2025 or any date thereafter, at the par value thereof plus accrued interest to the date of redemption. If less than all of the Bonds are to be redeemed, the City may select the maturities of Bonds to be redeemed. If less than all the Bonds of a series of any maturity are to be redeemed, the Paying Agent/Registrar (or DTC while the Bonds are in Book -Entry-Only form) shall determine by lot the Bonds, or portions thereof, within such maturity to be redeemed. If a Bond (or any portion of the principal sum thereof) shall have been called for redemption and notice of such redemption shall have been given, such Bond (or the principal amount thereof to be redeemed) shall become due and payable on such redemption date and interest thereon shall cease to accrue from and after the redemption date, provided funds for the payment of the redemption price and accrued interest thereon are held by the Paying Agent/Registrar on the redemption date. With respect to any optional redemption of the Bonds unless certain prerequisites to such redemption required by the Ordinance have been met and money sufficient to pay the principal of and premium if any, and interest on the Bonds to be redeemed will have been received by the Paying Agent/Registrar prior to the giving of such notice of redemption, such notice may state that said redemption will, at the option of the City, be conditional upon the satisfaction of such prerequisites and receipt of such money by the Paying Agent/Registrar on or prior to the date fixed for such redemption or upon any prerequisite set forth in such notice of redemption. If a conditional notice of redemption is given and such prerequisites to the redemption are not fulfilled, such notice will be of no force and effect, the City will not redeem such Bonds and the Paying Agent/Registrar will give notice in the manner in which the notice of redemption was given, to the effect that the Bonds have not been redeemed. NOTICE OF REDEMPTION ... Not less than 30 days prior to a redemption date for the Bonds, the City shall cause a notice of redemption to be sent by United States mail, first class, postage prepaid, to the registered owners of the Bonds to be redeemed, in whole or in part, at the address of the registered owner appearing on the registration books of the Paying Agent /Registrar at the close of business on the business day next preceding the date of mailing such notice. ANY NOTICE SO MAILED SHALL BE CONCLUSIVELY PRESUMED TO HAVE BEEN DULY GIVEN WHETHER OR NOT THE REGISTERED OWNER RECEIVES SUCH NOTICE. IF A BOND (OR ANY PORTION OF ITS PRINCIPAL SUM) SHALL HAVE BEEN DULY CALLED FOR REDEMPTION AND NOTICE OF SUCH REDEMPTION DULY GIVEN, THEN UPON THE REDEMPTION DATE SUCH OBLIGATION (OR THE PORTION OF ITS PRINCIPAL SUM TO BE REDEEMED) SHALL BECOME DUE AND PAYABLE, AND, IF MONIES FOR THE PAYMENT OF THE REDEMPTION PRICE ARE HELD FOR THE PURPOSE OF SUCH PAYMENT BY THE PAYING AGENT /REGISTRAR AND ALL OTHER CONDITIONS TO REDEMPTION ARE SATISFIED, INTEREST SHALL CEASE TO ACCRUE AND BE PAYABLE FROM AND AFTER THE REDEMPTION DATE ON THE PRINCIPAL AMOUNT REDEEMED. DEEEASANCE ... The Bond Ordinance provides that any Bond and the interest thereon shall be deemed to be paid, retired, and no longer outstanding (a "Defeased Bond ") within the meaning of such Bond Ordinance when payment of the principal of such Bond, plus interest thereon to the due date either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for on or before such due date by irrevocably depositing with or making available to the Paying Agent/Registrar for such payment (1) lawful money of the United States of America sufficient to make such payment or (2) Government Obligations which mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money to provide for such payment, and when proper arrangements have been made by the City with the Paying Agent /Registrar for the payment of its services until all Defeased Bonds shall have become due and payable, and thereafter the City will have no further responsibility with respect to amounts available to such paying agent (or other financial institution permitted by applicable law) for the payment of such defeased bonds, including any insufficiency therein caused by the failure of such paying agent (or other financial institution permitted by applicable law) to receive payment when due on the Government Obligations. At such time as a Bond shall be deemed to be a Defeased Bond hereunder, as aforesaid, such Bond and the interest thereon shall no longer be secured by, payable from or entitled to the benefits of, the ad valorem taxes herein levied and pledged as provided in the Bond Ordinance, and such principal and interest shall be payable solely from such money or Government Obligations, and thereafter the City will have no further responsibility with respect to amounts available to the Paying Agent/Registrar (or other financial institution permitted by applicable law) for the payment of such Defeased Bonds, including any insufficiency therein caused by the failure of the Paying Agent/Registrar (or other financial institution permitted by applicable law) to receive payment when due on the Government Obligations. Any moneys so deposited with the Paying Agent/Registrar may at the written direction of the City also be invested in Government Obligations, maturing in the amounts and times as herembefore set forth, and all income from such Government Obligations received by the Paying Agent/Registrar which is not required for the payment of the Bonds and interest thereon, with respect to which such money has been so deposited, shall be turned over to the City, or deposited as directed in writing to the City. The Bond Ordinance provides that "Government Obligations" means (a) direct, noncallable obligations of the United States of America, including obligations that are unconditionally guaranteed by the United States of America, (b) noncallable obligations of an agency or instrumentality of the United States of America, including obligations that are unconditionally guaranteed or insured by the agency or instrumentality and that, on the date the City Council approves such defeasance, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent, (c) noncallable obligations of a state or an agency or a county, municipality, or other political subdivision of a state that have been refunded and that, on the date the City Council approves such defeasance, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent and (d) any other then authorized securities or obligations under applicable Texas state law that may be used to defease obligations such as the Bonds. There is no assurance that the current law will not be changed in a manner which would permit investments other than those described above to be made with amounts deposited to defease the Bonds. Because the Bond Ordinance does not contractually limit such investments, registered owners will be deemed to have consented to defeasance with such other investments, notwithstanding the fact that such investments may not be of the same investment quality as those currently permitted under State law. There is no assurance that any particular rating for U.S. Treasury securities used as Government Obligations or the rating for any other Government Obligations will be maintained at any particular rating category. Upon such deposit as described above, such Defeased Bonds shall no longer be regarded to be outstanding obligations payable from ad valorem taxes levied by the City or from the other revenues pledged to their payment in the Bond Ordinance, but will be payable only from the funds and Government Obligations deposited in escrow and will not be considered debt of the City for any purpose. After firm banking and financial arrangements for the discharge and final payment or redemption of the Bonds have been made as described above, all rights of the City to initiate proceedings to call the Bonds for redemption or take any other action amending the terms of the Bonds are extinguished; provided, however, that the right to call the Bonds for redemption is not extinguished if the City: (i) in the proceedings providing for the firm banking and financial arrangements, expressly reserves the right to call the Bonds for redemption; and (ii) gives notice of the reservation of that right to the owners of the Bonds immediately following the making of the firm banking and financial arrangements; (iii) directs that notice of the reservation be included in any redemption notices that it authorizes. 10 BooK-ENTRY-ONLY SYSTEM ... This section describes how ownership of the Bonds is to be transferred and how the principal of premium, if any, and interest on the Bonds are to be paid to and accredited by DTC while the Bonds are registered in its nominee name. The information in this section concerning DTC and the Book-Entry-Only System has been provided by DTC for use in disclosure documents such as this Official Statement. The City and the Initial Purchasers believe the source of such information to be reliable, but take no responsibility for the accuracy or completeness thereof. The City and the Initial Purchaser cannot and do not give any assurance that (1) DTC will distribute payments of debt service on the Bonds, or redemption or other notices, to DTC Participants, (2) DTC Participants or others will distribute debt service payments paid to DTC or its nominee (as the registered owner of the Bonds), or redemption or other notices, to the Beneficial Owners, or that they will do so on a timely basis, or (3) DTC will serve and act in the manner described in this Official Statement. The current rules applicable to DTC are on file with the Securities and Exchange Commission, and the current procedures of DTC to be followed in dealing with DTC Participants are on file with DTC. DTC will act as securities depository for the Bonds. The Bonds will be issued as fully-registered securities registered in the name of Cede & Co. (DTC's partnership nominee) or such other name as may be requested by an authorized representative of DTC. One fully-registered security certificate will be issued for each maturity of the Bonds in the aggregate principal amount thereof and will be deposited with DTC. DTC, the world's largest securities depository, is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over 3.5 million issues of U.S. and non-U.S. equity issues, corporate and municipal debt issues, and money market instruments (from over 100 countries) that DTC's participants ("Direct Participants") deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participants' accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation ("DTCC"). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). DTC has a Standard & Poor's rating of "AA+". The DTC Rules applicable to its Participants are on file with the Securities and Exchange Commission. More information about DTC can be found at www.dtcc.com and www.dtc.org. Purchases of Bonds under the DTC system must be made by or through Direct Participants, which will receive a credit for the Bonds on DTC's records. The ownership interest of each actual purchaser of each Bond ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transactions, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owners entered into the transaction. Transfers of ownership interest in the Bonds are to be accomplished by entries made on the books of Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in the Bonds, except in the event that use of the book-entry system for the Bonds is discontinued. To facilitate subsequent transfers, all Bonds deposited by Direct Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of Bonds with DTC and their registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC's records reflect only the identity of the Direct Participant to whose account such Bonds are credited, which may or may not be the Beneficial Owners. The Participants will remain responsible for keeping account of their holdings on behalf of their customers. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners of Bonds may wish to take certain steps to augment the transmission to them of notices of significant events with respect to the Bonds, such as redemptions, tenders, defaults, and proposed amendments to the Bond documents. For example, Beneficial Owners of Bonds may wish to ascertain that the nominee holding the Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to the registrar and request that copies of notices be provided directly to them. Redemption notices shall be sent to DTC. If less than all of the Bonds within a maturity are being redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed. Neither DTC nor Cede & Co. will consent or vote with respect to the Bonds unless authorized by a Direct Participant in accordance with DTC's procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the City as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy). Payments on the Bonds will be made to DTC. DTC's practice is to credit Direct Participants' accounts, upon DTC's receipt of funds and corresponding detail information from the City or the Paying Agent/Registrar on payable dates in accordance with M their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as in the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such Participant and not of DTC, the Paying Agent /Registrar or the City, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment to DTC is the responsibility of the City, disbursement of such payments to Direct Participants shall be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners shall be the responsibility of Direct and Indirect Participants. DTC may discontinue providing its services as securities depository with respect to the Bonds at any time by giving reasonable notice to the City and the Paying Agent/Registrar. Under such circumstances, in the event that a successor securities depository is not obtained, Bond certificates are required to be printed and delivered. The City may decide to discontinue use of the system of book -entry transfers through DTC (or a successor securities depository). In that event, Bonds will be printed and delivered. Use of Certain Terms in Other Sections of this Official Statement. In reading this Official Statement it should be understood that while the Bonds are in the Book -Entry-Only System, references in other sections of this Official Statement to registered owners should be read to include the person for which the Participant acquires an interest in the Bonds, but (i) all rights of ownership must be exercised through DTC and the Book - Entry-Only System, and (ii) except as described above, notices that are to be given to registered owners under the Bond Ordinance will be given only to DTC. Information concerning DTC and the Book - Entry-Only System has been obtained from DTC and is not guaranteed as to accuracy or completeness by, and is not to be construed as a representation by the City, the Financial Advisor or the Initial Purchasers. EFFECT OF TERMINATION OF BOOK- ENTRY-ONLY SYSTEM .... In the event that the Book- Entry-Only System is discontinued by DTC or the use of the Book - Entry-Only System is discontinued by the City, printed Bonds will be issued to the holders and the Bonds will be subject to transfer, exchange and registration provisions as set forth in the Bond Ordinance and summarized under "The Bonds - Transfer, Exchange and Registration" below. PAYING AGENT /REGISTRAR ... The initial Paying Agent/Registrar for the Bonds is The Bank of New York Mellon Trust Company, N.A., Dallas, Texas. In the Bond Ordinance the City retains the right to replace the Paying Agent/Registrar. The City covenants to maintain and provide a Paying Agent /Registrar at all times until the Bonds are duly paid and any successor Paying Agent /Registrar shall be a commercial bank or trust company organized under the laws of the State of Texas or other entity duly qualified and legally authorized to serve as and perform the duties and services of Paying Agent/Registrar for the Bonds. Upon any change in the Paying Agent /Registrar for the Bonds, the City agrees to promptly cause a written notice thereof to be sent to each registered owner of the Bonds by United States mail, first class, postage prepaid, which notice shall also give the address of the new Paying Agent/Registrar. In the event the use of the Book -Entry-Only system is discontinued, principal of the Bonds is payable to the registered holder appearing on the registration books of the Paying Agent /Registrar (the "Registered Owner ") at the designated corporate trust office of the Paying Agent/Registrar upon surrender of the Bonds for payment; provided, however, that so long as Cede & Co. (or other DTC nominee) is the registered owner of the Bonds, all payments will be made as described under "The Bonds - Book - Entry-Only System" herein. Interest on the Bonds is payable to the Register Owners appearing on the registration books of the Paying Agent/Registrar at the close of business on the Record Date (identified below) and such interest shall be paid by the Paying Agent/Registrar by check mailed, first class postage prepaid, to the Register Owner or by such other arrangement, acceptable to the Paying Agent/Registrar, requested by and at the risk and expense of the Registered Owner. If the date for the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day when banking institutions in the city where the designated corporate office of the Paying Agent/Registrar is located is authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day when banking institutions are authorized to close; and payment on such date shall have the same force and effect as if made on the original date payment was due. TRANSFER, E %CHANGE AND REGISTRATION ... In the event the Book- Entry -Only System should be discontinued, printed Bonds will be delivered to the Registered Owners and thereafter the Bonds may be transferred and exchanged on the registration books of the Paying Agent /Registrar only upon presentation and surrender of such printed Bonds to the Paying Agent /Registrar and such transfer or exchange shall be without expense or service charge to the Registered Owner, except for any tax or other governmental charges required to be paid with respect to such registration, exchange and transfer. Bonds may be assigned by the execution of an assignment form on the Bonds or by other instrument of transfer and assignment acceptable to the Paying Agent /Registrar. New Bonds will be delivered by the Paying Agent /Registrar, in lieu of the Bonds being transferred or exchanged, at the designated office of the Paying Agent /Registrar, or sent by United States mail, first class, postage prepaid, to the new Registered Owner or his designee. To the extent possible, new Bonds issued in an exchange or transfer of Bonds will be delivered to the Registered Owner or assignee of the Registered Owner in not more than three business days after the receipt of the Bonds to be canceled, and the written instrument of transfer or request for exchange duly executed by the Registered Owner or his duly authorized agent, in form satisfactory to the Paying Agent/Registrar. New Bonds registered and delivered in an exchange or transfer shall be in any integral multiple of $5,000 for any one maturity and for a like aggregate principal amount as the Bonds surrendered for exchange or transfer. See "The Bonds — Book -Entry-Only System" herein for a description of the system to be utilized initially in regard to ownership and transferability of the Bonds. Neither the City nor the Paying Agent /Registrar shall be required to transfer or exchange any Bond called for redemption, in whole or in part, within 45 days of the date fixed for redemption; provided, however, such limitation of transfer shall not be applicable to an exchange by the Registered Owner of the uncalled balance of a Bond. 12 RECORD DATE FOR INTEREST PAYMENT ... The record date ( "Record Date ") for the interest payable on the Bonds on any interest payment date means the close of business on the last business day of the month next preceding such interest payment date. In the event of a non - payment of interest on a scheduled payment date, and for 30 days thereafter, a new record date for such interest payment (a "Special Record Date ") will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the City. Notice of the Special Record Date and of the scheduled payment date of the past due interest ( "Special Payment Date ", which shall be 15 days after the Special Record Date) shall be sent at least five business days prior to the Special Record Date by United States mail, first class postage prepaid, to the address of each Registered Owner of a Bond appearing on the registration books of the Paying Agent/Registrar at the close of business on the last business day next preceding the date of mailing of such notice. AMENDMENTS ... In the Bond Ordinance, the City has reserved the right to amend the Bond Ordinance without the consent of any holder of the respective Bond for the purpose of amending or supplementing the Bond Ordinance to (i) cure any ambiguity, defect or omission therein that does not materially adversely affect the interests of the holders, (ii) grant additional rights or security for the benefit of the holders, (iii) add events of default as shall not be inconsistent with the provisions of the Bond Ordinance that do not materially adversely affect the interests of the holders, (iv) qualify the Bond Ordinance under the Trust Indenture Act of 1939, as amended, or corresponding provisions of federal laws from time to time in effect or (v) make such other provisions in regard to matters or questions arising under the Bond Ordinance that are not inconsistent with the provisions thereof and which, in the opinion of Bond Counsel for the City, do not materially adversely affect the interests of the holders. The Bond Ordinance further provides that the holders of the Bonds aggregating in principal amount a majority of the outstanding Bonds shall have the right from time to time to approve any amendment not described above to the Bond Ordinance if it is deemed necessary or desirable by the City; provided, however, that without the consent of 100% of the holders in original principal amount of the then outstanding Bonds so affected, no amendment may be made for the purpose of. (i) making any change in the maturity of any of the outstanding Bonds; (ii) reducing the rate of interest bome by any of the outstanding Bonds; (iii) reducing the amount of the principal of, or redemption premium if any, payable on any outstanding Bonds; (iv) modifying the terms of payment of principal or of interest or redemption premium on outstanding Bonds, or imposing any condition with respect to such payment; or (v) changing the minimum percentage of the principal amount of the Bonds necessary for consent to such amendment. Reference is made to the Bond Ordinance for further provisions relating to the amendment thereof. REMEDIES ... The Bond Ordinance establishes specific events of default with respect to the Bonds. If the City defaults in the payment of the principal of or interest on the Bonds when due or the City defaults in the observance or performance of any of the covenants, conditions, or obligations of the City, the failure to perform which materially, adversely affects the rights of the owners thereof, including but not limited to, their prospect or ability to be repaid in accordance with the Bond Ordinance, and the continuation thereof for a period of 60 days after notice of such default is given by any owner to the City, the Bond Ordinance provides that any registered owner of a Bond is entitled to seek a writ of mandamus from a court of proper jurisdiction requiring the City to make such payment or observe and perform such covenants, obligations, or conditions. The issuance of a writ of mandamus may be sought if there is no other available remedy at law to compel performance of the Bonds or Bond Ordinance and the City's obligations are not uncertain or disputed. The remedy of mandamus is controlled by equitable principles, so rests with the discretion of the court, but may not be arbitrarily refused. There is no acceleration of maturity of the Bonds in the event of default and, consequently, the remedy of mandamus may have to be relied upon from year to year. The Bond Ordinance does not provide for the appointment of a trustee to represent the interest of the owners of the Bonds upon any failure of the City to perform in accordance with the terms of the Bond Ordinance, or upon any other condition and accordingly all legal actions to enforce such remedies would have to be undertaken at the initiative of, and be financed by, the Registered Owners. The Texas Supreme Court has ruled in Tooke v. City of Mexia 197 S.W.3d 325 (Tex. 2006) that a waiver of sovereign immunity in a contractual dispute must be provided for by statute in "clear and unambiguous" language. Because it is unclear whether the Texas legislature has effectively waived the City's sovereign immunity from a suit for money damages, owners of Bonds may not be able to bring such a suit against the City for breach of the Bonds or Bond Ordinance covenants in the absence of City action. Chapter 1371, Texas Government Code ( "Chapter 1371 "), which pertains to the issuance of public securities by issuers such as the City, permits the City to waive sovereign immunity in the proceedings authorizing its debt, but in connection with the issuance of the Bonds, the City has not waived sovereign immunity. Even if a judgment against the City could be obtained, it could not be enforced by direct levy and execution against the City's property. Further, the Registered Owners cannot themselves foreclose on property within the City or sell property within the City to enforce the tax lien on taxable property to pay the principal of and interest on the Bonds. Furthermore, the City is eligible to seek relief from its creditors under Chapter 9 of the U.S. Bankruptcy Code ( "Chapter 9 "). Although Chapter 9 provides for the recognition of a security interest represented by a specifically pledged source of revenues, the pledge of ad valorem taxes in support of a general obligation of a bankrupt entity is not specifically recognized as a security interest under Chapter 9. Chapter 9 also includes an automatic stay provision that would prohibit, without Bankruptcy Court approval, the prosecution of any other legal action by creditors or Bondholders of an entity which has sought protection under Chapter 9. Therefore, should the City avail itself of Chapter 9 protection from creditors, the ability to enforce would be subject to the approval of the Bankruptcy Court (which could require that the action be heard in Bankruptcy Court instead of other federal or state court); and the Bankruptcy Code provides for broad discretionary powers of a Bankruptcy Court in administering any proceeding brought before it. The opinions of Bond Counsel will note that all opinions relative to the enforceability of the Bonds are qualified with respect to the customary rights of debtors relative to their creditors, by principles of governmental immunity, and by general principles of equity which permit the exercise of judicial discretion. Initially, the only Registered Owner of the Bonds will be Cede & Co., as DTC's nominee. See "The Bonds - Book - Entry-Only System" herein for a description of the duties of DTC with regard to ownership of the Bonds. 13 TAX INFORMATION AD VALOREM TAX LAw ... The appraisal of property within the City is the responsibility of the Denton Central Appraisal District (the "Appraisal District "). Excluding agricultural and open -space land, which may be taxed on the basis of productive capacity, the Appraisal District is required under V.TC.A., Title 1, Tax Code, as amended (the 'Property Tax Code ") to appraise all property within the Appraisal District on the basis of 100% of its market value and is prohibited from applying any assessment ratios. In determining the market value of property, different methods of appraisal may be used, including the cost method of appraisal, the income method of appraisal and the market data comparison method of appraisal, and the method considered most appropriate by the chief appraiser is to be used. State law requires the appraised value of a residence homestead to be based solely on the property's value as a residence homestead, regardless of whether residential use is considered to be the highest and best use of the property. State law further limits the appraised value of a residence homestead for a tax year to an amount that would not exceed the lesser of (1) the market value of the property for the most recent tax year that the market value was determined by the appraisal office or (2) the sum of (a) 10% of the property's appraised value in the preceding tax year, plus (b) the property's appraised value in the preceding tax year, plus (c) the market value of all new improvements to the property. The value placed upon property within the Appraisal District is subject to review by an Appraisal Review Board, consisting of members appointed by the Board of Directors of the Appraisal District. The Appraisal District is required to review the value of property within the Appraisal District at least every three years. The City may require annual review at its own expense, and is entitled to challenge the determination of appraised value of property within the City by petition filed with the Appraisal Review Board. Reference is made to the Property Tax Code, for identification of property subject to taxation; property exempt or which may be exempted from taxation, if claimed; the appraisal of property for ad valorem taxation purposes; and the procedures and limitations applicable to the levy and collection of ad valorem taxes. Article VIII of the State Constitution ( "Article VIII") and State law provide for certain exemptions from property taxes, the valuation of agricultural and open -space lands at productivity value, and the exemption of certain personal property from ad valorem taxation. Under Section 1 -b, Article VIII, and State law, the governing body of a political subdivision, at its option, may grant an exemption of not less than $3,000 of the market value of the residence homestead of persons 65 years of age or older and the disabled from all ad valorem taxes thereafter levied by the political subdivision. Once authorized, such exemption may be repealed or decreased or increased in amount (i) by the governing body of the political subdivision or (ii) by a favorable vote of a majority of the qualified voters at an election called by the governing body of the political subdivision, which election must be called upon receipt of a petition signed by at least 20% of the number of qualified voters who voted in the preceding election of the political subdivision. hn the case of a decrease, the amount of the exemption may not be reduced to less than $3,000 of the market value. The surviving spouse of an individual who qualifies for the foregoing exemption for the residence homestead of a person 65 or older (but not the disabled) is entitled to an exemption for the same property in an amount equal to that of the exemption for which the deceased spouse qualified if (i) the deceased spouse died in a year in which the deceased spouse qualified for the exemption, (ii) the surviving spouse was at least 55 years of age at the time of the death of the individual's spouse and (iii) the property was the residence homestead of the surviving spouse when the deceased spouse died and remains the residence homestead of the surviving spouse. hn addition to any other exemptions provided by the Property Tax Code, the governing body of a political subdivision, at its option, may grant an exemption of up to 20% of the market value of residence homesteads, with a minimum exemption of $5,000. hn the case of residence homestead exemptions granted under Section 1 -b, Article VIII, ad valorem taxes may continue to be levied against the value of homesteads exempted where ad valorem taxes have previously been pledged for the payment of debt if cessation of the levy would impair the obligation of the contract by which the debt was created. Under Article VIII and State law, the governing body of a county, municipality or junior college district may provide for a freeze on total amount of ad valorem taxes levied on the residence homestead of a disabled person or persons 65 years of age or older above the amount of tax imposed in the year such residence qualified for such exemption. Also, upon receipt of a petition signed by five percent of the registered voters of the county, municipality or junior college district, an election must be held to determine by majority vote whether to establish such a limitation on taxes paid on residence homesteads of persons 65 years of age or who are disabled. Upon providing for such exemption, the total amount of taxes imposed on such homestead cannot be increased except for improvements (other than maintenance, repairs or improvements required to comply with governmental requirements) and such freeze is transferable to a different residence homestead. Also, a surviving spouse of a taxpayer who qualifies for the freeze on ad valorem taxes is entitled to the same exemption so long as the property was the residence homestead of the surviving spouse when the deceased spouse died and remains the residence homestead of the surviving spouse and the spouse was at least 55 years of age at the time of the death of the individual's spouse. Once established such freeze cannot be repealed or rescinded. State law and Section 2, Article VIII, mandate an additional property tax exemption for disabled veterans or the surviving spouse or children of a deceased veteran who died while on active duty in the armed forces; the exemption applies to either real or personal property with the amount of assessed valuation exempted ranging from $5,000 to a maximum of $12,000, dependent upon the degree of disability or whether the exemption is applicable to a surviving spouse or children; provided, however, that beginning in the 2009 tax year, a disabled veteran who receives from the United States Department of Veterans Affairs or its successor 100 percent disability compensation due to a service - connected disability and a rating of 100 percent disabled or of individual unemployability is entitled to an exemption from taxation of the total appraised value of the veteran's residence homestead. In addition, effective January 1, 2012, and subject to certain conditions, surviving spouses of a deceased veteran who had received a disability rating of 100% will be entitled to receive a residential homestead exemption equal to the exemption received by the deceased spouse until such surviving spouse remarries. 14 Article VIII provides that eligible owners of both agricultural laud (Section 1 -d) and open -space land (Section 1 -d -1), including open -space land devoted to farm or ranch purposes or open -space land devoted to timber production, may elect to have such property appraised for property taxation on the basis of its productive capacity. The same land may not be qualified under both Section 1 -d and 1 -d -1. Nonbusiness personal property, such as automobiles or light trucks, are exempt from ad valorem taxation unless the governing body of a political subdivision elects to tax this property. Boats owned as nonbusiness property are exempt from ad valorem taxation. Article VIII, Section 1-J, provides for "freeport property" to be exempted from ad valorem taxation. Freeport property is defined as goods detained in Texas for 175 days or less for the purpose of assembly, storage, manufacturing, processing or fabrication. Notwithstanding such exemption, counties, school districts, junior college districts and cities may tax such tangible personal property provided official action to tax the same was taken before April 1, 1990. Decisions to continue to tax may be reversed in the future; decisions to exempt freeport property are not subject to reversal. Article VIII, Section 1 -n of the Texas Constitution provides for the exemption from taxation of "goods -in- transit." "Goods -in- transit" is defined by Section 11.253 of the Property Tax Code, which is effective for tax years 2008 and thereafter, as personal property acquired or imported into Texas and transported to another location in the State or outside of the State within 175 days of the date the property was acquired or imported into Texas. The exemption excludes oil, natural gas, petroleum products, aircraft and special inventory, including motor vehicle, vessel and out -board motor, heavy equipment and manufactured housing inventory. Section 11.253 permits local governmental entities, on a local option basis, to take official action by January 1 of the year preceding a tax year, after holding a public hearing, to tax "goods -in- transit" during the following tax year. A taxpayer may only receive either the freeport exemption or the "goods -in- transit" exemption for items of personal property. The City or Denton County may create one or more tax increment financing districts ( "TIF ") within the City or Denton County, as applicable, and freeze the taxable values of property in the TIT at the value at the time of its creation. Other overlapping taxing units levying taxes in the TIT may agree to contribute all or part of future ad valorem taxes levied and collected against the value of property in the TIT in excess of the "frozen values" to pay or finance the costs of certain public improvements in the TIF. Taxes levied by the City against the values of real property in the TIT in excess of the "frozen" value are not available for general city use but are restricted to paying or financing "project costs" within the TIF. The City also may enter into tax abatement agreements to encourage economic development. Under the agreements, a property owner agrees to construct certain improvements on its property. The City in turn agrees not to levy a tax on all or part of the increased value attributable to the improvements until the expiration of the agreement. The abatement agreement could last for a period of up to 10 years. The City has active reinvestment zones for tax abatements and three tax increment financing zones for tax increment financing purposes. See "Tax Information - Tax Abatement Policy" and "- Tax Increment Financing" and "Table 1 - Valuation, Exemptions and General Obligation Debt ". The City is also authorized, pursuant to Chapter 380, Texas Local Government Code, as amended ( "Chapter 380 "), to establish programs to promote state or local economic development and to stimulate business and commercial activity in the City. h1 accordance with a program established pursuant to Chapter 380, the City may make loans or grants of public funds for economic development purposes, however no obligations secured by ad valorem taxes may be issued for such purposes unless approved by voters of the City. The City has entered into several Chapter 380 Agreements. See "Tax Information - Chapter 380 Agreements ". EFFECTIVE TAX RATE AND ROLLBACK TAX RATE ... Under the current Property Tax Code a governing body of a taxing unit is required to adopt its annual tax rate per $100 taxable value for the unit before the later of September 30 or the 60th day after the date the certified appraisal roll is received by the taxing unit, and a failure to adopt a tax rate by such required date will result in the tax rate for the taxing unit for the tax year to be the lower of the effective tax rate calculated for that tax year or the tax rate adopted by the taxing unit for the preceding tax year. By each September 1 or as soon thereafter as practicable, the City Council adopts a tax rate per $100 taxable value for the current year. The tax rate consists of two components: (1) a rate for funding of maintenance and operation expenditures, and (2) a rate for debt service. Under the Property Tax Code, the City must annually calculate and publicize its "effective tax rate" and "rollback tax rate ". The City Council may not adopt a tax rate that exceeds the lower of the effective tax rate or the rollback tax rate until it has held two public hearings on the proposed increase following notice to the taxpayers and otherwise complied with the Property Tax Code. If the adopted tax rate exceeds the rollback tax rate the qualified voters of the City by petition may require that an election be held to determine whether or not to reduce the tax rate adopted for the current year to the rollback tax rate. "Effective tax rate" means the rate that will produce last year's total tax levy (adjusted) from this year's total taxable values (adjusted). "Adjusted" means lost values are not included in the calculation of last year's taxes and new values are not included in this year's taxable values. "Rollback tax rate" means the rate that will produce last year's maintenance and operation tax levy (adjusted) from this year's values (adjusted) multiplied by 1.08 plus a rate that will produce this year's debt service from this year's values (unadjusted) divided by the anticipated tax collection rate. The Property Tax Code provides that certain cities and counties in the State may submit a proposition to the voters to authorize an additional one -half cent sales tax on retail sales of taxable items. If the additional tax is levied, the effective tax rate and the rollback tax rate calculations are required to be offset by the revenue that will be generated by the sales tax in the current year. 15 Reference is made to the Property Tax Code for definitive requirements for the levy and collection of ad valorem taxes and the calculation of the various defined tax rates. PROPERTY ASSESSMENT AND TAX PAYMENT ... Property within the City is generally assessed as of January 1 of each year. Business inventory may, at the option of the taxpayer, be assessed as of September 1. Oil and gas reserves are assessed on the basis of a valuation process which uses an average of the daily price of oil and gas for the prior year. Taxes become due October 1 of the same year, and become delinquent on February 1 of the following year. Taxpayers 65 years old or older are permitted by State law to pay taxes on homesteads in four installments with the first due on February 1 of each year and the final installment due on August 1. PENALTIES AND INTEREST ... Charges for penalty and interest on the unpaid balance of delinquent taxes are made as follows: After July, the penalty remains at 12 %, and interest accrues at a rate of one percent (1 %) for each month or portion of a month the tax remains unpaid. A delinquent tax continues to incur the penalty interest as long as the tax remains unpaid, regardless of whether a judgment for the delinquent tax has been rendered. The purpose of imposing such interest is to compensate the taxing unit for revenue lost because of the delinquency. In addition, if an account is delinquent in July, an attorney's collection fee of up to 20% may be added to the total tax penalty and interest charge. Under certain circumstances, taxes which become delinquent on the homestead of a taxpayer 65 years old or older incur a penalty of 8% per annum with no additional penalties or interest assessed. In general, property subject to the City's lien may be sold, in whole or in parcels, pursuant to court order to collect the amounts due. Federal law does not allow for the collection of penalty and interest against an estate in bankruptcy. Federal bankruptcy law provides that an automatic stay of action by creditors and other entities, including governmental units, goes into effect with the filing of any petition in bankruptcy. The automatic stay prevents governmental units from foreclosing on property and prevents liens for post - petition taxes from attaching to property and obtaining secured creditor status unless, in either case, an order lifting the stay is obtained from the bankruptcy court. In many cases post - petition taxes are paid as an administrative expense of the estate in bankruptcy or by order of the bankruptcy court. CITY APPLICATION OF TAx CODE . . . The City grants an exemption to the market value of the residence homestead of persons 65 years of age or older of $50,000. Disabled taxpayers also receive a $10,000 exemption. The City grants an additional one -half of one percent, or a minimum of $5,000 exemption of the market value of residence homesteads. See Table 1 for a listing of the amounts of the exemptions described above. Ad valorem taxes are not levied by the City against the exempt value of residence homesteads for the payment of debt. The City does not tax nonbusiness personal property. Denton County began collecting taxes for the City during the fiscal year 2006 -07. The City does not allow split payments, and discounts are not allowed. The City does not tax freeport property. The City collects the additional one -half cent sales tax for reduction of ad valorem taxes. The City does tax "goods -in- transit ". The City has not adopted the tax freeze for citizens who are disabled or are 65 years of age or older. The City has adopted a tax abatement policy. The City participates in two tax increment reinvestment zones, which were created in 2010 and 2012. TAX INCREMENT FINANCING . . . The City created Tax Increment Reinvestment Zone Number One (known as the Downtown TIF) in 2010. The TIF will expire in 2039 and reflects only the City's participation of. 100% for years 1 -5; 95% for years 6 -10; 90% for years 11 -20; and 85% for years 21 -30. According to Denton Central Appraisal District (DCAD) supplemental figures, the 2014 total appraised valuation of taxable real property in TIRZ Number One was $116.8 million. This represents a $16.3 million increase from the 2013 supplemental value of $100.5 million. Since its inception, the value of the TIRZ has increased an estimated $37.4 million, which represents a 47.1% increase in valuation. 16 Cumulative Cumulative Month Penalty Interest Total February 6% 1 % 7% March 7 2 9 April 8 3 11 May 9 4 13 June 10 5 15 July 12 6 18 After July, the penalty remains at 12 %, and interest accrues at a rate of one percent (1 %) for each month or portion of a month the tax remains unpaid. A delinquent tax continues to incur the penalty interest as long as the tax remains unpaid, regardless of whether a judgment for the delinquent tax has been rendered. The purpose of imposing such interest is to compensate the taxing unit for revenue lost because of the delinquency. In addition, if an account is delinquent in July, an attorney's collection fee of up to 20% may be added to the total tax penalty and interest charge. Under certain circumstances, taxes which become delinquent on the homestead of a taxpayer 65 years old or older incur a penalty of 8% per annum with no additional penalties or interest assessed. In general, property subject to the City's lien may be sold, in whole or in parcels, pursuant to court order to collect the amounts due. Federal law does not allow for the collection of penalty and interest against an estate in bankruptcy. Federal bankruptcy law provides that an automatic stay of action by creditors and other entities, including governmental units, goes into effect with the filing of any petition in bankruptcy. The automatic stay prevents governmental units from foreclosing on property and prevents liens for post - petition taxes from attaching to property and obtaining secured creditor status unless, in either case, an order lifting the stay is obtained from the bankruptcy court. In many cases post - petition taxes are paid as an administrative expense of the estate in bankruptcy or by order of the bankruptcy court. CITY APPLICATION OF TAx CODE . . . The City grants an exemption to the market value of the residence homestead of persons 65 years of age or older of $50,000. Disabled taxpayers also receive a $10,000 exemption. The City grants an additional one -half of one percent, or a minimum of $5,000 exemption of the market value of residence homesteads. See Table 1 for a listing of the amounts of the exemptions described above. Ad valorem taxes are not levied by the City against the exempt value of residence homesteads for the payment of debt. The City does not tax nonbusiness personal property. Denton County began collecting taxes for the City during the fiscal year 2006 -07. The City does not allow split payments, and discounts are not allowed. The City does not tax freeport property. The City collects the additional one -half cent sales tax for reduction of ad valorem taxes. The City does tax "goods -in- transit ". The City has not adopted the tax freeze for citizens who are disabled or are 65 years of age or older. The City has adopted a tax abatement policy. The City participates in two tax increment reinvestment zones, which were created in 2010 and 2012. TAX INCREMENT FINANCING . . . The City created Tax Increment Reinvestment Zone Number One (known as the Downtown TIF) in 2010. The TIF will expire in 2039 and reflects only the City's participation of. 100% for years 1 -5; 95% for years 6 -10; 90% for years 11 -20; and 85% for years 21 -30. According to Denton Central Appraisal District (DCAD) supplemental figures, the 2014 total appraised valuation of taxable real property in TIRZ Number One was $116.8 million. This represents a $16.3 million increase from the 2013 supplemental value of $100.5 million. Since its inception, the value of the TIRZ has increased an estimated $37.4 million, which represents a 47.1% increase in valuation. 16 The City created Tax Increment Reinvestment Zone Number Two (known as the Westpark TIRZ) in 2012 to provide the public infrastructure necessary to encourage development in the largest industrially zoned area (Westpark) in the City. The 2012 certified base value of Westpark TIRZ, according to the Denton Central Appraisal District, is $119,458. The estimated revenue to be generated by the TIRZ is approximately $14.3 million over a 25 year period for infrastructure improvements. The City will contribute $10.1 million and Denton County will contribute $4.2 million into the Westpark TIRZ fund. According to DCAD supplemental figures, the 2014 total appraised valuation of taxable real property in TIRZ Number Two was $555,807. This is a $436,349 increase from the 2012 base value of 119,458. The City created Rayzor Ranch Public Improvement District No. 1 in 2014 for the undertaking and financing of public improvements authorized by Chapter 372 of the Texas Local Government Code. The project is located on the City's northern sector, east of Interstate 35, and encompasses approximately 229.693 contiguous acres. The estimated cost of the proposed public improvements total $40 million. The authorized improvement costs will be apportioned 100% to the District. The method of assessment will impose equal shares of the cost of the proposed public improvements on parcels that are similarly benefited. No City property will be assessed, and the City will not be obligated to pay any assessments. TAY ABATEMENT POLICY ... The City has adopted a tax abatement policy. In 1990, the City council adopted a resolution setting guidelines and criteria for granting abatements in reinvestment zones created within the City. These guidelines specifically note that incentives are limited to companies which create new wealth and do not adversely affect existing businesses operating within the City. The City Council approved the following tax abatement agreements: • In 2007, a 100% tax abatement for a term of up to seven years was granted to Aldi Foods for their 500,000 square foot $52 million distribution center. The abatement amount is based on the cost incurred by Aldi to construct a road to their site. The project was completed in 2009 and the agreement will terminate in 2016. • In 2010, a 65% tax abatement agreement for a term of five years was granted to Target Corporation for its 400,000 square foot frozen and refrigerated food distribution center. Target opened in March 2013 and employs 115 to 150 area residents. • In 2011, a 40% tax abatement agreement for a term of five years was granted to Peerless Manufacturing for its 80,000 square foot, $16 million manufacturing facility. Peerless is an existing Denton business that consolidated other manufacturing operations to Denton. The agreement will terminate five years from the opening of the facility. They completed construction of an 80,000 square foot manufacturing facility in October 2013. • In 2013, a 65% tax abatement agreement for a term of four years was granted to Tetra Pak Materials LP for expanding their facility and relocating their corporate headquarter operations from Chicago to Denton. The company manufactures, processes, packages and distributes liquid foods all over the globe. The current facility comprises approximately 220,000 square feet. The increase in real and business personal property valuation of the proposed project expansion is estimated at $10.7 million. Tetra Pak Materials expects to create a total of thirty new jobs with this expansion. The company received their Certificate of Occupancy in February of 2015, so their incentive will begin in 2016. • In 2015, a 70% tax abatement for a term of eight years was granted to Peterbilt Motors for a 17,500 square foot expansion of their current facility to improve material flow from trucks into the expanded metering center. Peterbilt's growth in 2014 has resulted in a 20% increase in employment and a 32% increase in production levels. These increases have also been the driving force behind similar growth of other businesses in Denton that support Peterbilt. This project is scheduled for completion in 2016. CHAPTER 380 AGREEMENTS ... The City has also entered into several Chapter 380 agreements. Each agreement is based on the project's contribution in either sales or property tax revenue. The City Council has approved the following Chapter 380 agreements: • In 2001, an agreement was approved for the 450,000 square foot, $50 million Denton Crossing retail center. The grantee receives one -third of the City sales tax generated by the project for a maximum of fifteen years as reimbursement for public improvement costs related to the project. The project was completed and the Chapter 380 Grant was initiated in 2005. The agreement will terminate in 2019. • In 2003, an agreement was approved for Sally Beauty Company for their new international headquarters valued at over $29 million. The company receives a grant equal to 40% of the property tax paid on the new facility and equipment for a period of ten years. The agreement was completed in 2014. • In 2004, an agreement was approved for Teasley Partners for an urban style mixed -use development. The grantee may receive one -third of the City sales tax generated by the project for a maximum of fifteen years as reimbursement for public improvement costs related to the project. The project has not been completed. Although a new hotel and some residential units have been completed, no qualifying retail has been constructed. • In 2004, an agreement was approved for Unicorn Lake, an urban style mixed -use development. The grantee receive one -third of the City sales tax generated by the project for a maximum of fifteen years as reimbursement for public improvement costs related to the project. BJs Restaurant, Blue Ginger Japanese Bistro, and Rising Sun Cafe represent some of the businesses that have recently located in the development. A Bone Daddy's restaurant is planned along the north eastern side of development in 2015. Urban Square Apartments completed construction last fall and features 205 units. The agreement will terminate in 2024. 17 • In 2007, an agreement was approved for Allegiance Hillview for the Rayzor Ranch mixed -use development. The 410 acre project will have over one million square feet of retail and will be built in two phases. The agreement provides a sales tax reimbursement for public improvement costs, which include the widening of a state highway that bisects the project. The grantee will receive a maximum of $20 million over a 15 year term for phase one and a maximum of $42 million over a term of 20 years for phase two. Rayzor Ranch Marketplace completed over 582,000 square feet of retail and commercial space. Some of the new stores in the development include: Academy Sports and Outdoors, Salons by JC, Colorful Hearing, Kohl's, Ross Dress for Less, Boot Barn, Petco, Panera Bread and DK Foot and Casual. A 33,000 square foot building, which will house Guitar Center and a retail tenant, is slated to open in fall 2015. A Taco Cabana is also planned for the north side of the development. • In 2008, an agreement was approved for the expansion of a jewelry manufacturing plant operated by Josten's, a manufacturer of high school and college class rings. The grant is based on 75% of the new property tax revenue generated by the expansion for a term of seven years. The project was completed and the agreement will terminate in 2015. • In 2010, an agreement was approved for Grand Mesa, contractor for Schlumberger, equal to 50% of new property tax revenue generated for their 150,000 square foot regional maintenance facility. The agreement was assigned to Schlumberger Technology Corporation in 2012. Agreement thresholds require maintaining $5 million in real property improvements and business personal property valuation and the creation of 80 jobs with average wage of $45,000. The term of the agreement is seven years and will terminate in 2017. • In 2011, an agreement was approved for a major renovation of the Golden Triangle Mall. A threshold of a minimum $45 million must be invested into the property for the new owners to receive a 50% share of the sales tax resulting from the renovations. The agreement allows Golden Triangle Mall until October 1, 2014 to reach their investment threshold. The term of the agreement will terminate in 20 years. Exterior entrance updates, a new food court, pylon signs and wayfinding have been constructed as part of the second phase of the redevelopment. Two restaurant pad sites for Pollo Tropical and Corner Bakery have also recently opened at the mall. • In 2011, an agreement was approved for Labinal Inc., part of the Safran Group. The company is a world leader in electrical wiring harness and integration systems for the aviation, space and defense markets. In August 2012, Labinal relocated and expanded its North American Wiring and Services Division headquarters, one of four wiring harness and integration system manufacturing sites and over 700 employees to the former Russell Newman facility in Denton. The company received a 50 %, three -year tax rebate on increased valuation of at least $5 million at the Denton facility. • In 2012, an agreement was approved for Mayday Manufacturing/Tailwind Technologies. The company manufactures precision bushings, sleeves, pins, and other machine parts used in the aerospace industry. Mayday subsidiary, High Tech Metal Refinishing is collocated with Mayday and provides metal finishing processes for Mayday products and for additional customers. The company purchased an 80,000 square foot facility in 2012 and held a groundbreaking at the new site location in February 2013 that included a 15,000 square foot expansion. The company received a 75 %, ten - year tax rebate on increased valuation of at least $3 million over the base value. The company will move from leased space in Denton into the new facility by fall 2014. • In 2015, an agreement was granted to Westgate Business Park (WGBP). The industrial development received a minimum of 60% with an additional 5% for a national headquarters and /or ten percent for support of major employers not to exceed 75% of City ad valorem taxes attributable to Improvements for a period of ten years. WGBP includes three multi - tenant buildings totaling 413,000 square feet of new industrial/manufacturing space in Denton. • In 2015, a grant agreement was awarded to Business Air. The grant is equal to 70% of the increase in property tax revenues on the improvements to the building and new business personal property up to a maximum of $9,500,000 in increased valuation for a period of two years. The company may extend the length of this grant by attracting additional investment in the form business aircraft based at its facilities at the airport by specified date and investment level thresholds. In addition to a grant extension, Business Air would receive five percent of the increase in taxable valuation attributable to these new business aircraft for the duration of the grant extension. Business Air is a full service FBO and certified FAR 135 Air Carrier providing fuel, hangar, charter, and aircraft management services to corporate and private clients at the Denton Enterprise Airport. The company is expanding with plans to build a new 24,000 square foot hangar with an additional 4,000 square feet of office space. The hangar space should allow the addition of 10 corporate aircraft with values ranging from $1.5 to $10 million per aircraft. In addition to the hangar, Business Air will be purchasing a corporate aircraft to be based at the airport for the exclusive use of providing air taxi service to the area. ANNEXATION PLANS ... The City has commenced the process to extend for one (1) year those Non - Annexation Agreements (NAAs) associated with the City's 2010 annexation proceedings. Only those property owners who continue to be eligible to receive NAA a pursuant to Texas law, and who have confirmed acceptance to extend their NAAs, will have their NAAs presented to City Council for acceptance during the spring of 2015. For all other property owners whose properties no longer qualify for an NAA, or who declined the one (1) year extension, the City will proceed with annexing those properties during the Spring of 2015 also. 18 TABLE 1 - VALUATION, ExEMPTIONS AND GENERAL OBLIGATION DEBT 2014/15 Market Valuation Established by Denton Central Appraisal District Less Exemptions /Reductions at 100% Market Value: Residence Homestead Exemptions Over 65 Exemptions Disabled Persons Exemptions Disabled Veterans Exemptions Agricultural Land Use Productivity Historical /Other Exemptions Freeport Exemptions Abatement Exemptions Police Patrol Vehicle Exemptions Pollution Exemptions Community Housing Development Exemptions Homestead Cap Adjustment $ 8,915,323,686 $ 84,697,697 293,674,600 2,384,830 32,995,419 290,523,508 3,165,218 230,546,968 126,501,843 13,500 21,809,514 127,809 31,705,172 1,118,146,078 2014/15 Taxable Assessed Valuation (as of 9 -3 -14) $ 7,797,177,608 2014/15 Incremental Taxable Assessed Value of Real Property within Reinvestment Zones (35,975,197) 2014/15 Taxable Assessed Valuation available for General Obligations and Debt of City (as of 9 -3 -14) $ 7,761,202,411 City Funded Debt Payable from Ad Valorem Taxes «� General Obligation Bonds (as of 7 -1 -15) Certificates of Obligation (as of7 -1 -15) Tax and Utility System Revenue Debt (as of 7 -1 -15) The Bonds Funded Debt Payable from Ad Valorem Taxes Less Self- Supporting General Obligation Debt (3) Solid Waste System General Obligation Debt Airport General Obligation Debt Utility System General Obligation Debt Net Tax Supported Debt Payable from Ad Valorem Taxes Interest and Sinking Fund as of 7 -1 -15 (estimated) $ 169,660,000 357,320,000 43,645,000 34,260,000 «� $ 604,885,000 $ 39,239,665 4,721,277 425,045,000 �'� 469,005,942 $ 135,879,058 $ 11,741,882 Ratio Total Funded Debt to Taxable Assessed Valuation ............. ............................... 7.79% Ratio Net Funded Debt to Taxable Assessed Valuation .............. ............................... 1.75% 2015 Estimated Population - 120,945 Per Capita Net Taxable Assessed Valuation - $64,171 Per Capita Total Funded Debt - $5,001 Per Capita Net Funded Debt - $1,123 (1) The above statement of indebtedness does not include $68,165,000 Utility System Revenue Bonds as these bonds are payable solely from the net revenues of the Utility System (the "System "), as defined in the ordinances authorizing such bonds. (2) Preliminary, subject to change. (3) As a matter of policy, the City provides payment of debt service on its general obligation debt issued to fiend improvements to its Utility System and Solid Waste System from surplus revenues of these Systems (see "Table 7 — General Obligation Debt Service Requirements" and "Table 9 — Computation of Self- Supporting Debt "). This policy is subject to change in the future. In the event the City changes its policy, or such revenues are not sufficient to pay debt service on such obligations, the city will be required to levy an ad valorem tax to pay such debt service. The City's Utility System is comprised of the City's entire existing electric, light and power system and the waterworks and sewer system. Drainage is managed under the waterworks and sewer system. The City's Utility System General Obligation Debt has been issued to finance improvements to finance or refinance Utility System improvements and contractual obligations and is paid, or is expected to be paid, from Utility System revenues. In addition, the City has $68,165,000 Utility System Revenue Bonds outstanding payable from a pledge of Utility System revenues. The City's Airport System General Obligation Debt has been issued to finance or refinance Airport System improvements and is paid, or is expected to be paid, from Airport System revenues. The City has no outstanding Airport System Revenue Bonds. The City's Solid Waste System General Obligation Debt has been issued to finance or refinance Solid Waste System improvements and is paid, or is expected to be paid, from Solid Waste System revenues. The City has no outstanding Solid Waste System Revenue Bonds. (4) Includes the Bonds. Preliminary, subject to change. 19 TABLE 2 - TAXABLE ASSESSED VALUATIONS BY CATEGORY (I) (1) Valuations shown are certified taxable assessed values reported by the Denton Central Appraisal District to the State Comptroller of Public Accounts. Certified values are subject to change throughout the year as contested values are resolved and the Appraisal District updates records. For the Fiscal Year ended 2015, the values were reported on September 3, 2014 based on information as of January 1, 2014. (2) Includes tax incremental values of approximately $35,975,197 that is not available for the City's general obligations and debt of City. (3) Includes tax incremental value of approximately $16,931,096 that is not available for the City's general obligations and debt of City. (4) Includes tax incremental value of approximately $10,248,781 that is not available for the City's general obligations and debt of City. (5) Includes tax incremental value of approximately $2,300,954 that is not available for the City's general obligations and debt of City. 20 Taxable Appraised Value for Fiscal Year Ended September 30, 2015 2014 2013 % of % of % of Category Amount Total Amount Total Amount Total Real, Residential, Single Family $4,062,947,070 45.57% $3,720,193,268 46.72% $3,633,577,302 47.68% Real, Residential, Multi - Family 1,089,958,543 12.23% 924,229,117 11.61% 816,319,292 10.71% Real, VacantLots /Tracts 180,886,051 2.03% 150,027,306 1.88% 125,343,528 1.64% Real, Acreage (Land Only) 299,966,303 3.36% 274,941,322 3.45% 338,412,791 4.44% Real, Farm and Ranch Improvements 95,625,308 1.07% 80,481,975 1.01% 37,671,587 0.49% Real, Commercial and Industrial 1,829,135,437 20.52% 1,621,678,792 20.37% 1,520,034,393 19.94% Real, Oil, Gas, and Other Mineral Reserves 93,196,666 1.05% 78,106,929 0.98% 107,460,964 1.41% Real and Tangible Personal, Utilities 91,139,063 1.02% 91,097,444 1.14% 90,748,500 1.19% Tangible Personal, Commercial and Industrial 1,091,736,374 12.25% 943,996,533 11.86% 884,681,448 11.61% Tangible Personal, Other 21,761,614 0.24% 15,167,604 0.19% 16,249,794 0.21% Real and Special Property, Inventory 58,971,257 0.66% 62,732,470 0.79% 50,894,577 0.67% Total Appraised Value Before Exemptions $ 8,915,323,686 100.00% $ 7,962,652,760 100.00% $ 7,621,394,176 100.00% Less: Total Exemptions/Reductions (1,118,146,078) (983,428,486) (904,682,808) Taxable Assessed Value $7,797,177,608 $6,979,224,274 (3) $6,716,711,368 (4) Taxable Appraised Value for Fiscal Year Ended September 30, 2012 2011 % of % of Category Amount Total Amount Total Real, Residential, Single Family $3,610,010,439 49.78% $3,545,009,743 50.46% Real, Residential, Multi - Family 689,687,370 9.51% 661,530,441 9.42% Real, VacantLots /Tracts 140,758,151 1.94% 149,930,858 2.13% Real, Acreage (Land Only) 366,276,930 5.05% 352,636,983 5.02% Real, Farm and Ranch Improvements 37,791,667 0.52% 32,148,788 0.46% Real, Commercial and Industrial 1,449,703,794 19.99% 1,381,432,997 19.66% Real, Oil, Gas, and Other Mineral Reserves 86,195,936 1.19% 116,459,175 1.66% Real and Tangible Personal, Utilities 87,973,672 1.21% 66,756,673 0.95% Tangible Personal, Commercial and Industrial 714,263,695 9.85% 651,961,490 9.28% Tangible Personal, Other 14,868,334 0.21% 16,634,472 0.24% Real Property, Inventory 54,969,631 0.76% 51,489,918 0.73% Total Appraised Value Before Exemptions $ 7,252,499,619 100.00% $ 7,025,991,538 100.00% Less: Total Exemptions/Reductions (840,124,615) (s) (795,873,580) Taxable Assessed Value $ 6,412,375,004 $ 6,230,117,958 (1) Valuations shown are certified taxable assessed values reported by the Denton Central Appraisal District to the State Comptroller of Public Accounts. Certified values are subject to change throughout the year as contested values are resolved and the Appraisal District updates records. For the Fiscal Year ended 2015, the values were reported on September 3, 2014 based on information as of January 1, 2014. (2) Includes tax incremental values of approximately $35,975,197 that is not available for the City's general obligations and debt of City. (3) Includes tax incremental value of approximately $16,931,096 that is not available for the City's general obligations and debt of City. (4) Includes tax incremental value of approximately $10,248,781 that is not available for the City's general obligations and debt of City. (5) Includes tax incremental value of approximately $2,300,954 that is not available for the City's general obligations and debt of City. 20 TABLE 3 - VALUATION AND GENERAL OBLIGATION DEBT HISTORY (1) Source: City Officials. (2) Valuations shown are certified taxable assessed values reported by the Denton Central Appraisal District to the State Comptroller of Public Accounts. Certified values are subject to change throughout the year as contested values are resolved and the Appraisal District updates records. (3) Includes tax incremental value of approximately $2,300,954 that is not available for the City's general obligations and debt of City. (4) Includes tax incremental value of approximately $10,248,781 that is not available for the City's general obligations and debt of City. (5) Includes tax incremental value of approximately $16,931,096 that is not available for the City's general obligations and debt of City. (6) Includes tax incremental value of approximately $35,975,197 that is not available for the City's general obligations and debt of City. Source: Denton Central Appraisal District as of September 3, 2014. (7) Excludes self - supported general obligation debt. (8) Projected. Excludes the Bonds as they are self - supported through the Utility System. Preliminary, subject to change. TABLE 4 - TAX RATE, LEVY AND COLLECTION HISTORY Fiscal % of Total Taxable Taxable Net Ratio Net Net Fiscal $92,209,540 Distribution Taxable Tax Debt Tax Debt Funded Tax Year General Taxable Assessed Outstanding to Taxable Debt Ended Estimated Assessed Valuation at End Assessed Per 9/30 Population "' Valuation "' Per Capita of Year (7) Valuation Capita 2011 114,517 $6,230,117,958 $ 54,403 $116,165,650 1.86% $1,014 2012 115,662 6,412,375,004 C3) 55,441 113,939,700 1.78% 985 2013 117,397 6,716,711,368 C4) 57,214 120,375,588 1.79% 1,025 2014 119,158 6,979,224,274 CS) 58,571 123,827,115 1.77% 1,039 2015 120,945 7,797,177,608 (6) 64,469 135,879,058 ($) 1.74% 1,123 (1) Source: City Officials. (2) Valuations shown are certified taxable assessed values reported by the Denton Central Appraisal District to the State Comptroller of Public Accounts. Certified values are subject to change throughout the year as contested values are resolved and the Appraisal District updates records. (3) Includes tax incremental value of approximately $2,300,954 that is not available for the City's general obligations and debt of City. (4) Includes tax incremental value of approximately $10,248,781 that is not available for the City's general obligations and debt of City. (5) Includes tax incremental value of approximately $16,931,096 that is not available for the City's general obligations and debt of City. (6) Includes tax incremental value of approximately $35,975,197 that is not available for the City's general obligations and debt of City. Source: Denton Central Appraisal District as of September 3, 2014. (7) Excludes self - supported general obligation debt. (8) Projected. Excludes the Bonds as they are self - supported through the Utility System. Preliminary, subject to change. TABLE 4 - TAX RATE, LEVY AND COLLECTION HISTORY Fiscal % of Total Taxable Taxable Assessed Assessed Valuation Year $92,209,540 Distribution 92,014,123 1.18% 56,082,415 Ended Tax General Interest and 0.65% % Current % Total 9/30 Rate Fund Sinking Fund Tax Levy (1) Collections Collections 2011 $ 0.68975 $ 0.47088 $ 0.21887 $ 43,865,554 99.05% 99.72% 2012 0.68975 0.47088 0.21887 44,827,158 99.18% 99.71% 2013 0.68975 0.47088 0.21887 46,938,583 99.36% 99.66% 2014 0.68975 0.47480 0.21495 48,398,900 99.35% 99.35% 2015 0.68975 0.48119 0.20856 53,922,850 98.93% (2) 98.93% (2) (1) Tax levy for the year 2015 is based on the adjusted certified value. Prior years represent adjusted values that include all supplements through September 30, 2014. Includes tax incremental reinvestment zone revenues. (2) Collections through July 1, 2015 (partial year). TABLE 5 - TEN LARGEST TAXPAYERS Name of Taxpayer Columbia Medical Center of Denton Paccar Inc. Target Corporation ACC OP LLC aka Denton Fry LLC Inland Western Denton Crossing Ltd PS Cypress Denton Station LTD Razor Ranch Market Place LP HRA University Courtyard LLC Flowers Baking Co. of Denton LLC GTE Southwest Inc. DBA Verizon Source: Denton Central Appraisal District. Nature of Property Hospital/Professional Building Diesel Truck Manufacturing Retail Apartments Real Estate Development Residential Multifamily Shopping Center Apartments Bakery Telephone Utility 21 2014/15 % of Total Taxable Taxable Assessed Assessed Valuation Valuation $92,209,540 1.18% 92,014,123 1.18% 56,082,415 0.72% 51,167,423 0.66% 50,684,356 0.65% 45,936,000 0.59% 35,910,782 0.46% 31,855,383 0.41% 29,332,172 0.38% 28,236,000 0.36% $513,428,194 6.58% GENERAL OBLIGATION DEBT LIMITATION ... No general obligation debt limitation is imposed on the City under current State law or the City's Home Rule Charter (see "The Obligations — Tax Rate Limitation" for a description of the limitations on ad valorem tax rates). TABLE 6 - ESTIMATED OVERLAPPING TAX DEBT Expenditures of the various taxing entities within the territory of the City are paid out of ad valorem taxes levied by such entities on properties within the City. Such entities are independent of the City and may incur borrowings to finance their expenditures. This statement of direct and estimated overlapping ad valorem tax debt ( "Tax Debt ") was developed from information contained in "Texas Municipal Reports" published by the Municipal Advisory Council of Texas. Except for the amounts relating to the City, the City has not independently verified the accuracy or completeness of such information, and no person should rely upon such information as being accurate or complete. Furthermore, certain entities listed may have issued additional Tax Debt since the date hereof, and such entities may have programs requiring the issuance of substantial amounts of additional Tax Debt, the amount of which cannot be determined. The following table reflects the estimated share of overlapping Tax Debt of the City. 2014/15 Taxable 2014/15 Assessed Tax Jurisdiction Value Rate City of Denton Denton Independent School District Denton County Argyle Independent School District Aubrey Independent School District Krum Independent School District Pilot Point Independent School District Ponder Independent School District Sanger Independent School District Total Direct and Overlapping Funded Debt $7,797,177,608 (» $ 0.68975 10, 726,023,542 1.54000 63,594,441,842 0.27220 1,219,292,723 1.57005 597,631,494 1.51000 722,327,434 1.54000 509,740,943 1.37000 697,368,217 1.38080 726,150,601 1.37207 Ratio of Direct and Overlapping Funded Debt to Taxable Assessed Valuation. Per Capita Overlapping Funded Debt Total Estimated Funded % Debt Applicable $ 135,879,058 (2) 100.00% 735,851,832 64.24% 609,410,000 12.26% 86,508,373 9.26% 50,720,143 0.01% 44,062,367 4.15% 17,645,000 0.11% 24,195,000 2.78% 22,978,207 1.02% City's Overlapping Funded Debt Ac of 7_1 -15 $ 135,879,058 472,711,217 74,713,666 8,010,675 5,072 1,828,588 19,410 672,621 234,378 $ 694,074,684 8.90% $ 5,738.76 Authorized But Unissued Debt As Of 7_1_15 $ 87,725,000 187,745,000 154,871,687 5,000,000 (1) Includes tax incremental value of approximately $35,975,197 that is not available for the City's general obligations and debt of City. (2) Excludes the Bonds and other self - supporting debt. See Tables 1 and 9 herein for more detailed information on the City's general obligation self - supporting debt. Preliminary, subject to change. 22 DEBT INFORMATION lD bl o 0 0 0 0 0 0 1! N cl� lc� I 10 cn cn CIL . . . . . . . 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N . . . . 23 bA 5 O O O V1 tT$ at cu V1 tT$ O O O cu > TABLE 8 - INTEREST AND SINKING FUND BUDGET PROJECTION (n Tax Supported Debt Service Requirements, Fiscal Year Ending 9/30/2015 .. ............................... $ 54,014,287 Interest and Sinking Fund Balance as of 9/30/14 ....... ............................... $ 4,726,841 Interest and Sinking Fund Tax Levy ................. ............................... 16,187,108 From Revenue Supported Sources ............................ ..................... 37,777,179 Interest Income ................................. ............................... 50,000 58,741,128 Estimated Balance, 9/30/15 ...................................... ............................... $ 4,726,841 (1) Source: City's Annual Budget for Fiscal Year 2014/15. TABLE 9 - COMPUTATION OF SELF - SUPPORTING DEBT Net Revenue from Solid Waste System, Fiscal Year Ended 9 -30 -14 ......... ............................... $ 8,421,153 (i) Less: Solid Waste System Revenue Bond Requirements, 2015 Fiscal Year .... ............................... - Balance Available for Other Purposes ................................. ............................... $ 8,421,153 Solid Waste System General Obligation Bond Requirements, 2015 Fiscal Year ............................... Purpose 6,858,140 Balance........................................................ ............................... $ 1,563,013 Net Revenue from Airport System, Fiscal Year Ended 9 -30 -14 ............. ............................... $ 725,746 (2) Less: Airport System Revenue Bond Requirements, 2015 Fiscal Year ....... ............................... $ 8,400,000 - Balance Available for Other Purposes ................................. ............................... $ 725,746 Airport System General Obligation Bond Requirements, 2015 Fiscal Year .... ............................... Public Safety 474,155 Balance........................................................ ............................... $ 251,591 Net Revenue from Utility System (Electric System and Waterworks and Sewer System), Fiscal Year Ended 9 -30 -14 .. $ 54,760,243 (i) Less: Utility System Revenue Bond Requirements, 2015 Fiscal Year ........ ............................... 16,472,319 Balance Available for Other Purposes ................................. ............................... $ 38,287,924 Utility System General Obligation Bond Requirements, 2015 Fiscal Year ..... ............................... 30,033,512 Balance........................................................ ............................... $ 8,254,412 (1) Does not deduct franchise fees and /or return on investment paid to the General Fund. (2) Does not deduct franchise fees and cost of services paid to the General Fund. TABLE 10 - AUTHORIZED BUT UNISSUED GENERAL OBLIGATION BONDS ANTICIPATED ISSUANCE OF ADDITIONAL GENERAL OBLIGATION DEBT . . . The City may issue tax - supported debt other than voter approved general obligation bonds to fund public improvements, such as certificates of obligation or tax anticipation notes, without submitting a measure to the voters, but in certain instances, subject to voter petition rights for a referendum. Further, the City may issue tax - supported debt other than voter approved general obligation bonds to refund bonds or other obligations not currently payable from or supported by ad valorem taxes, such as the City's Utility System revenue bonds. The City anticipates the issuance of approximately $23,800,000 in tax- supported debt in the second quarter of 2016. 24 Amount Date Amount Heretofore Unissued Purpose Authorized Authorized Issued Balance Street 11/6/2012 $ 20,400,000 $12,000,000 $ 8,400,000 Street 11/4/2014 61,710,000 9,140,000 52,570,000 Public Safety 11/4/2014 16,565,000 2,880,000 13,685,000 Drainage 11/4/2014 8,545,000 4,655,000 3,890,000 Parks 11/4/2014 11,355,000 2,175,000 9,180,000 $118,575,000 $ 30,850,000 $ 87,725,000 ANTICIPATED ISSUANCE OF ADDITIONAL GENERAL OBLIGATION DEBT . . . The City may issue tax - supported debt other than voter approved general obligation bonds to fund public improvements, such as certificates of obligation or tax anticipation notes, without submitting a measure to the voters, but in certain instances, subject to voter petition rights for a referendum. Further, the City may issue tax - supported debt other than voter approved general obligation bonds to refund bonds or other obligations not currently payable from or supported by ad valorem taxes, such as the City's Utility System revenue bonds. The City anticipates the issuance of approximately $23,800,000 in tax- supported debt in the second quarter of 2016. 24 TABLE 11 - OTHER OBLIGATIONS The City has entered into capital lease agreements. The following is a schedule of future minimum lease payments under these capital leases and the present value of the net minimum lease payments as of September 30, 2014: Year Annual Ending Lease 30 -Sep Payment 2015 $ 394,316 2016 394,316 2017 394,316 Total Minimum Lease Payment $ 1,182,948 Less: Amount Representing Interest 80,084 Present Value of Minimum Future Lease Payments $ 1,102,864 PENSION FUND ... The City provides pension benefits for all of its full -time employees (except firefighters) through the Texas Municipal Retirement System ( "TMRS "), a State -wide administered pension plan. Employees may retire at ages 60 and above with five or more years of service or with twenty years of service regardless of age, and a member is vested after five years. The City makes annual contributions to the plan equal to the amounts accrued for pension expense. Beginning in 2009, the City of Denton elected to "phase in" higher contributions to TMRS over a period up to eight years in order to recognize the change to a Projected Unit Cost Method in the 2007 valuation. By doing so, the City contributed less than the actuarially determined annual required contribution (ARC), and as such accrued a net pension obligation on its balance sheet. In subsequent years, this net pension obligation will continue to increase until the full actuarially determined ARC is paid. The "phase in" period was expected to last eight years from fiscal year 2009 through fiscal year 2016, but due to the new fund structure approved by the Texas Legislature with Senate Bill 350 (SB 350) and better than expected financial performance, management began paying the full ARC in October 2012. The funded status as of December 31, 2012, December 31, 2013 and December 31, 2014 is presented below: Actuarial Fiscal Valuation Year Date 2013 12/31/2012 2014 12/31/2013 2015 12/31/2014 Unfunded Actuarial Actuarial Accrued Valuation Liability of Assets (AAL) $ 252,276,946 $ 315,416,972 278,338,589 360,116,261 305,689,300 384,408,038 (i) Unfunded AAL Funded (UAAL) Ratio $ 63,140,026 80.0% 81,777,672 77.3% 78,718,738 79.5% (1) Fiscal year 2015 reflects a change in actuarial assumptions from a Projected Unit Credit method to an Entry Age Normal method and a reduction of an additional 3.3 years in the closed amortization period to 21.0 years. On October 9, 2013, subsequent to the City's year end, the TMRS Board adopted two significant changes affecting future actuarial values: Mortality Tables — The mortality tables used to determine the annuity purchase rate were updated to reflect the increasing life expectancy of plan members and retirees. Effective January 1, 2015, this change will affect future retirees only and will be phased in over thirteen years. Entry Age Normal Actuarial Method — TMRS will be changing from the Projected Unit Credit method to the Entry Age Normal method, the most widely used actuarial method by public sector pension plans, which will be required by Governmental Accounting Standards Board (GASB) beginning in fiscal year 2015 for determination of the Net Pension Liability for financial reporting purposes. This will more closely align funding with the financial reporting once the City implements GASB Statement No. 68 "Accounting and Financial Reporting for Pensions; an amendment of GASB Statement No. 27." For more detailed information concerning the TMRS plan as well as the City's historical unfunded actuarial accrued liability for calendar years 2012 -2014, see Appendix B, "Excerpts from the City's Comprehensive Annual Financial Report" - Note V.A., page 58 and Exhibit XII, page 71. 25 FIREMEN'S RELIEF AND RETIREMENT FUND ... The City provides pension benefits for firefighters through the Denton Firemen's Relief and Retirement Fund (the "Firemen's Fund "). Firefighters may retire at age 50 with twenty or more years of service, and a member is vested after ten years of credited service. As of December 31, 2013, there were (i) 67 retirees and beneficiaries receiving benefits and terminated employees entitled to benefits but not yet receiving them, (ii) 95 current employees who were vested and (iii) 66 employees who were not vested. As of December 31, 2013, the plan's unfunded actuarial accrued liability was $18,400,951 and the funded ratio was 77.1 %. An actuarial /liability assessment of the City's fireman's pension fund is currently underway for calendar year 2014 and is expected to be available in the summer of 2015. For more detailed information concerning the Firemen's Fund as well as the City's historical unfunded actuarial accrued liability for calendar years 2010 -2014, see Appendix B, "Excerpts from the City's Comprehensive Annual Financial Report" — Note V.A., page 58 and Exhibit X11, page 71. OTHER POST EMPLOYMENT BENEFITS . . . The City provides post - employment medical care ( "OPEB ") for retired employees through a single - employer defined benefit medical plan. The plan provides medical benefits for eligible retirees, their spouses and dependents though the City's group health insurance plans, which covers both active and retired members. The benefits, benefit levels, and contribution rates are approved annually by the City management as part of the budget process. Any changes in rate subsidies for retirees are approved by the City Council. Since an irrevocable trust has not been established, the plan is not accounted for as a trust fund. The plan does not issue a separate financial report. The City provides post - employment medical, dental, and vision care benefits to its retirees. To be eligible for benefits, an employee must qualify for retirement under the Texas Municipal Retirement System or the Denton Firemen's Relief and Retirement Plan. Retirees must make a one -time irrevocable decision to choose benefits at the time of retirement, after that their eligibility for the benefits ceases. All medical care benefits are provided through the City's self - insured health plan. The benefit levels are the same as those afforded to active employees. Actuarial valuations have been completed by an outside consulting firm regarding the City's OPEB liability. The reports provide the City with the City's OPEB requirements assuming the City's plan offerings, designs, and cost share approach remain constant. The City's annual OPEB cost is calculated based on the annual required contribution of the City, an amount actuarially determined in accordance with the parameters of GASB Statement 45. The annual required contribution represents a level of funding that, if paid on an ongoing basis, is projected to cover normal cost each year and to amortize any unfunded actuarial liabilities over a period not to exceed thirty years. The City's annual OPEB cost for the current year and the related information are as follows at September 30, 2014: Fiscal Year Ended September 30, 2014 2013 2012 Annual OPEB Costs $1,735,204 $1,519,439 $1,520,203 Actual Contributions $ 909,288 $ 898,583 $1,481,210 Net OPEB Obligations $4,653,257 $3,827,341 $3,206,485 As of December 31, 2013, the date of the latest actuarial report, the City's actuarial accrued liability was $13,715,238 and as of such date the City had funded 0% of such amount. The City's GASB 45 liability was discussed at length with the Audit /Finance Committee and the City Council. At the conclusion of these discussions, the City Council concurred with the staff recommendation to fund the City's OPEB costs on a pay- as -you- go basis. The pay -as- you -go approach has been recommended since 1) this provides the lowest cost approach, 2) the ARC is relatively small in comparison to the City's overall budget, and 3) the pay -as- you -go cost is not forecasted to exceed the ARC until approximately the year 203 1. For more detailed information concerning the City's OPEBs, funding policies related thereto and related liabilities, as well as the City's historical unfunded actuarial accrued liability, see Appendix B, "Excerpts from the City's Comprehensive Annual Financial Report" - Note V.B., page 63 and Exhibit X1II, page 72. 26 FINANCIAL INFORMATION TABLE 12 - CHANGES IN NET POSITION (1) Unrestricted net position, that part of the net position that may be used to meet the City's ongoing obligations, was $35,610,630 as of September 30, 2014. This table refers to governmental activities only and does not include enterprise funds such as the airport, solid waste or utility activities. 27 Fiscal Year Ended September 30, Revenues: 2014 2013 2012 2011 2010 Program Revenue: Charges for Services $ 18,428,832 $ 17,091,719 $ 15,980,821 $ 15,673,556 $ 14,781,002 Operating Grants and Contributions 4,788,149 3,118,105 2,598,157 4,270,697 3,407,085 Capital Grants and Contributions 11,127,695 14,671,571 4,292,468 7,497,908 15,206,424 General Revenue: Property Tax 48,833,077 47,275,552 45,174,160 44,144,844 43,144,645 Sales Tax 27,764,114 26,522,473 25,886,940 22,871,282 20,484,954 OtherTaxes/Fees 23,424,250 22,578,639 21,839,818 21,219,346 19,131,162 Miscellaneous 2,543,781 1,428,907 1,390,398 2,830,297 6,375,678 Total Revenue $136,909,898 $132,686,966 $117,162,762 $118,507,930 $122,530,950 Expenditures: General Government $ 30,476,840 $ 27,686,735 $ 29,421,275 $ 28,198,604 $ 29,569,535 Public Safety 56,893,859 52,906,985 52,496,010 49,154,371 47,998,906 Public Works 16,950,280 18,663,884 18,662,029 16,089,302 15,767,926 Parks and Recreation 14,543,461 13,714,245 12,968,426 12,421,893 12,854,336 Interest on Long -Term Debt 4,339,154 4,464,309 4,755,938 5,046,724 5,121,329 Total Expenses $123,203,594 $117,436,158 $118,303,678 $110,910,894 $111,312,032 Increase in Net Position before Transfers $ 13,706,304 $ 15,250,808 $ (1,140,916) $ 7,597,036 $ 11,218,918 Transfers 876,525 (101,707) 887,287 (10,430,082) 482,801 Increase (Decrease) in Net Position $ 14,582,829 $ 15,149,101 $ (253,629) $ (2,833,046) $ 11,701,719 Prior Period Adjustment (737,505) - - (10,674,744) - Net Position at Beginning of Year 155,399,166 140,250,065 140,503,694 154,011,484 142,309,765 Net Position at End ofYear �'� $169,244,490 $155,399,166 $140,250,065 $140,503,694 $154,011,484 (1) Unrestricted net position, that part of the net position that may be used to meet the City's ongoing obligations, was $35,610,630 as of September 30, 2014. This table refers to governmental activities only and does not include enterprise funds such as the airport, solid waste or utility activities. 27 TABLE 12A - GENERAL FUND REVENUES AND EXPENDITURE HISTORY Expenditures General Government $23,337,639 Fiscal Year Ended September 30, $20,951,203 Revenues: 2014 2013 2012 2011 2010 Taxes $ 61,779,192 $ 59,278,152 $ 57,148,330 $ 53,492,664 $ 50,049,759 Licenses and Permits 1,978,421 1,446,580 1,436,215 1,460,548 1,198,552 Franchise Fee 13,889,670 13,597,253 13,751,615 19,324,244 17,457,994 Fines and Forfeitures 4,539,209 4,229,107 4,241,395 4,216,247 4,378,064 Fees for Service 5,913,566 5,631,829 5,666,413 5,656,550 5,989,349 Interest Revenue 172,684 141,734 187,527 172,719 237,559 Intergovernmental 1,383,267 1,021,581 949,422 825,549 770,164 Miscellaneous 120,680 84,929 255,035 193,022 317,460 Total Revenues $ 89,776,689 $ 85,431,165 $ 83,635,952 $ 85,341,543 $ 80,398,901 Expenditures General Government $23,337,639 $21,067,238 $20,951,203 $19,495,940 $22,037,729 Public Safety 50,949,715 49,622,237 46,797,417 44,921,713 43,156,478 Public Works 2,854,761 2,816,923 2,591,517 7,483,926 6,516,276 Parks and Recreation 10,891,862 10,579,066 9,704,075 9,422,432 9,837,073 Capital Outlay 573,903 616,199 712,055 575,128 691,880 Debt Service: Principal Retirement - - 78,092 140,422 185,154 Total Expenditures $ 88,607,880 $ 84,701,663 $ 80,834,359 $ 82,039,561 $ 82,424,590 Excess (Deficiency) of Revenues Over Expenditures $ 1,168,809 $ 729,502 $ 2,801,593 $ 3,301,982 $ (2,025,689) Other Financing Sources (Uses): Capital Leases $ - $ - $ - $ - $ - Transfers In - 2,600 14,301 20,304 1,018,218 Sale of Capital Assets 85,059 137,417 153,127 90,699 160,495 Transfers (Out) (1,170,764) (950,421) (1,556,944) (515,761) (421,200) Total Other Financing Sources (Uses) $ (1,085,705) $ (810,404) $ (1,389,516) $ (404,758) $ 757,513 Net Changes in Fund Balances $ 83,104 $ (80,902) $ 1,412,077 $ 2,897,224 $ (1,268,176) Fund Balances at Beginning of Year 25,755,178 25,836,080 24,424,003 21,526,779 22,794,955 Fund Balances at End of Year $25,838,282 $25,755,178 $25,836,080 $24,424,003 $21,526,779 28 TABLE 13 - MUNICIPAL SALES TAX HISTORY The City has adopted the Municipal Sales and Use Tax Act, V.T.C.A., Tax Code, Chapter 321, which grants the City the power to impose and levy a 1% Local Sales and Use Tax within the City; the proceeds are credited to the General Fund and are not pledged to the payment of the Obligations. Collections and enforcements are effected through the offices of the Comptroller of Public Accounts, State of Texas, who remits the proceeds of the tax, after deduction of a 2% service fee, to the City monthly. In January 1994, the voters of the City approved the imposition of an additional one -half of one percent (' /z of 1 %) for property tax reduction. In September 2003, the voters of the City approved the imposition of an additional one -half of one percent (' /z of 1 %) for the Denton County Transportation Authority. The implementation of this tax began January 2004, and is allocated directly to the Denton County Transportation Authority. Fiscal Year % of Equivalent of Ended Total Ad Valorem Ad Valorem 9/30 Collected (1) Tax Levy Tax Rate 2011 $ 22,871,281 52.14% $ 0.3671 2012 25,886,938 57.75% 0.4037 2013 26,522,473 56.50% 0.3949 2014 27,764,114 57.37% 0.3978 2015 (2) 19,575,587 35.94% 0.2511 (1) Source: City of Denton Annual Program of Services. (2) Collections through July 1, 2015. The sales tax breakdown for the City is as follows: Property Tax Relief 0.50¢ Denton County Transportation Authority 0.50¢ City Sales & Use Tax 1.00¢ State Sales & Use Tax 6.25¢ Total 8.250 FINANCIAL POLICIES Per Capita $ 200 224 226 233 162 Basis of Accounting ... The accounting policies of the City conform to generally accepted accounting principles of the Governmental Accounting Standards Board and program standards adopted by the Government Finance Officers Association of the United States and Canada. The GFOA has awarded a Certificate of Achievement for Excellence in Financial Reporting to the City of Denton for each fiscal year since 1983. The City's current report will be submitted to GFOA to determine its eligibility for another Certificate. The City has also received the GFOA's award for Distinguished Budget Presentation each year since 1988. The measurement focuses for the Enterprise Funds, Internal Service Funds and Nonexpendable Trust Funds are income determination and cost of service, respectively. Accordingly, the accrual basis, whereby revenues and expenses are identified in the accounting period in which they are earned and incurred and net income, is utilized for these funds. The modified accrual basis, whereby revenues are recognized when they become both measurable and available for use during the year and expenditures are recognized when the related fund liability is incurred, is used for all other funds. Budgetary Procedures ... As prescribed by City Charter, the City Manager, within the time period required by law, submits to the City Council a proposed budget for the fiscal year beginning the following October 1. The budget includes proposed expenditures and revenues required to fund the expenditures. Following Council considerations, amendments and refinements, a public hearing is ordered and conducted for the purpose of obtaining taxpayer comments. The budget is finally approved and adopted by passage of an ordinance by the City Council prior to the beginning of the fiscal year. The budget is adopted on a basis consistent with generally accepted accounting principles. The City strives to maintain an unreserved general fund balance of 20% of budgeted expenditures. 29 INVESTMENTS The City invests its investable funds in investments authorized by Texas law in accordance with investment policies approved by the City Council. Both Texas law and the City's investment policies are subject to change. LEGAL INVESTMENTS ... Under Texas law, the City is authorized to invest in (1) obligations, including letter of credit, of the United States or its agencies and instrumentalities, (2) direct obligations of the State of Texas or its agencies and instrumentalities; (3) collateralized mortgage obligations directly issued by a federal agency or instrumentality of the United States, the underlying security for which is guaranteed by an agency or instrumentality of the United States; (4) other obligations, the principal and interest of which is guaranteed or insured by or backed by the full faith and credit of, the State of Texas or the United States or their respective agencies and instrumentalities, including obligations that are fully guaranteed or insured by the Federal Deposit Insurance Corporation or by the explicit full faith and credit of the United States; (5) obligations of states, agencies, counties, cities, and other political subdivisions of any state rated as to investment quality by a nationally recognized investment rating firm not less than A or its equivalent; (6) bonds issued, assumed or guaranteed by the State of Israel; (7) certificates of deposit and share certificates meeting the requirements of the Texas Public Funds Investment Act (Chapter 2256, Texas Government Code, as amended (the "PFIA ")) that are issued by or through an institution that either has its main office or a branch office in Texas, and are guaranteed or insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund, or are secured as to principal by obligations described in clauses (1) through (6) or in any other manner and amount provided by law for City deposits, or are invested by the City through a depository institution that has its main office or a branch office in the State of Texas and otherwise meet the requirements of the PFIA, (8) fully collateralized repurchase agreements that have a defined termination date, are fully secured a combination of cash and obligations described in clause (1) which are pledged to the City, held in the City's name, and deposited at the time the investment is made with the City or with a third party selected and approved by the City and are placed through a primary government securities dealer, as defined by the Federal Reserve, or a financial institution doing business in the State, (9) certain bankers' acceptances with the remaining term of 270 days or less, if the short-term obligations of the accepting bank or its parent are rated at least A -1 or P -1 or the equivalent by at least one nationally recognized credit rating agency, (10) commercial paper with a stated maturity of 270 days or less that is rated at least A -1 or P -1 or the equivalent by either (a) two nationally recognized credit rating agencies or (b) one nationally recognized credit rating agency if the paper is fully secured by an irrevocable letter of credit issued by a U.S. or state bank, (11) no -load money market mutual funds registered with and regulated by the Securities and Exchange Commission that have a dollar weighted average stated maturity of 90 days or less and include in their investment objectives the maintenance of a stable net asset value of $1 for each share, and (12) no -load mutual funds registered with the Securities and Exchange Commission that have an average weighted maturity of less than two years, invest exclusively in obligations described in this paragraph, and are continuously rated as to investment quality by at least one nationally recognized investment rating firm of not less than AAA or its equivalent. If specifically authorized in the authorizing document, bond proceeds may be invested in guaranteed investment contracts that have a defined termination date and are secured by obligations of the United States or its agencies and instrumentalities in an amount at least equal to the amount of bond proceeds invested under such contract, other than the prohibited obligations described in the next succeeding paragraph. The City may invest in such obligations directly or through government investment pools that invest solely in such obligations provided that the pools are rated no lower than AAA or AAA -m or an equivalent by at least one nationally recognized rating service. The City may also contract with an investment management firm registered under the Investment Advisers Act of 1940 (15 U.S.C. Section 80b -1 et seq.) or with the State Securities Board to provide for the investment and management of its public funds or other funds under its control for a term up to two years, but the City retains ultimate responsibility as fiduciary of its assets. In order to renew or extend such a contract, the City must do so by order, ordinance, or resolution. The City is specifically prohibited from investing in: (1) obligations whose payment represents the coupon payments on the outstanding principal balance of the underlying mortgage - backed security collateral and pays no principal; (2) obligations whose payment represents the principal stream of cash flow from the underlying mortgage - backed security and bears no interest; (3) collateralized mortgage obligations that have a stated final maturity of greater than 10 years; and (4) collateralized mortgage obligations the interest rate of which is determined by an index that adjusts opposite to the changes in a market index. Political subdivisions such as the City are authorized to implement securities lending programs if (i) the securities loaned under the program are 100% collateralized, a loan made under the program allows for termination at any time and a loan made under the program is either secured by (a) obligations that are described in clauses (1) through (6) of the first paragraph under this subcaption, (b) irrevocable letters of credit issued by a state or national bank that is continuously rated by a nationally recognized investment rating firm not less than "A" or its equivalent, or (c) cash invested in obligations that are described in clauses (1) through (6) and (10) through (12) of the first paragraph under this subcaption, or an authorized investment pool; (ii) securities held as collateral under a loan are pledged to the governmental body, held in the name of the governmental body and deposited at the time the investment is made with the City or a third party designated by the City; (iii) a loan made under the program is placed through either a primary government securities dealer or a financial institution doing business in the State of Texas; and (iv) the agreement to lend securities has a term of one year or less. INVESTMENT POLICIES ... Under Texas law, the City is required to invest its funds under written investment policies that primarily emphasize safety of principal and liquidity; that address investment diversification , yield, maturity, and the quality and capability of investment management; and that includes a list of authorized investments for City funds, maximum allowable stated maturity of any individual investment, the maximum average dollar- weighted maturity allowed for pooled fund groups, methods to monitor the market price of investments acquired with public funds, a requirement for settlement of all transactions, except investment pool 30 funds and mutual funds, on a delivery versus payment basis, and procedures to monitor rating changes in investments acquired with public funds and the liquidation of such investments consistent with the Public Funds Investment Act. All City funds must be invested consistent with a formally adopted "Investment Strategy Statement" that specifically addresses each funds' investment. Each Investment Strategy Statement will describe its objectives concerning: (1) suitability of investment type, (2) preservation and safety of principal, (3) liquidity, (4) marketability of each investment, (5) diversification of the portfolio, and (6) yield. Under Texas law, City investments must be made "with judgment and care, under prevailing circumstances, that a person of prudence, discretion, and intelligence would exercise in the management of the person's own affairs, not for speculation, but for investment, considering the probable safety of capital and the probable income to be derived." At least quarterly the investment officers of the City shall submit an investment report detailing: (1) the investment position of the City, (2) that all investment officers jointly prepared and signed the report, (3) the beginning market value, the ending market value and the fully accrued interest during the reporting period of each pooled fund group, (4) the book value and market value of each separately listed asset at the end of the reporting period, (5) the maturity date of each separately invested asset, (6) the account or fund or pooled fund group for which each individual investment was acquired, and (7) the compliance of the investment portfolio as it relates to: (a) adopted investment strategy statements and (b) state law. No person may invest City funds without express written authority from the City Council. ADDITIONAL PROVISIONS ... Under Texas law the City is additionally required to: (1) annually review its adopted policies and strategies; (2) adopt a rule, order, ordinance or resolution stating that it has reviewed its investment policy and investment strategies and records any changes made to either its investment policy or investment strategy in the respective rule, order, ordinance or resolution; (3) require any investment officers with personal business relationships or relatives with firms seeking to sell securities to the City to disclose the relationship and file a statement with the Texas Ethics Commission and the City Council; (4) require the registered principal of firms seeking to sell securities to the City to: (a) receive and review the City's investment policy, (b) acknowledge that reasonable controls and procedures have been implemented to preclude investment transactions conducted between the City and the business organization that are not authorized by the City's investment policy (except to the extent that this authorization is dependent on an analysis of the makeup of the City's entire portfolio or requires an interpretation of subjective investment standards), and (c) deliver a written statement attesting to these requirements; (5) perform an annual audit of the management controls on investments and adherence to the City's investment policy; (6) provide specific investment training for the Treasurer, Chief Financial Officer and investment officers; (7) restrict reverse repurchase agreements to not more than 90 days and restrict the investment of reverse repurchase agreement funds to no greater than the term of the reverse repurchase agreement; (8) restrict the investment in no -load mutual funds in the aggregate to no more than 15% of the entity's monthly average fund balance, excluding bond proceeds and reserves and other funds held for debt service; (9) require local government investment pools to conform to the new disclosure, rating, net asset value, yield calculation, and advisory board requirements; and (10) at least annually review, revise, and adopt a list of qualified brokers that are authorized to engage in investment transactions with the City. TABLE 14- CURRENT INVESTMENTS (l) As of July 1, 2015, the City's available funds were invested as follows: Market (1) There are no City funds invested in derivative securities, i.e., securities whose rate of return is determined by reference to some other instrument, index or commodity. (2) Fully insured by FDIC. (3) Insured up to the FDIC limit with uninsured amounts collateralized by U.S. federal agency securities at a minimum of 102% of principal plus accrued interest. 31 Value Market Book Description Percent Value Value Treasury Secuirites - Coupon 4.11% $ 22,119,297 $ 22,058,261 Federal Agency Issues - Coupon 43.26% 232,742,807 232,441,987 Federal Agency Issues - Callable 2.60% 13,998,927 13,995,842 Municipal Bonds - Coupon 6.57% 35,372,062 35,353,311 CDs - CDARS (2) 12.08% 65,000,000 65,000,000 CDs - Collateralized (3) 6.51% 35,000,000 35,000,000 CDs - SLOC 4.28% 23,000,000 23,000,000 Commercial Paper 2.97% 15,961,641 15,952,719 Demand Deposits (3) 17.62% 94,784,150 94,784,150 100.00% $ 537,978,884 $ 537,586,270 (1) There are no City funds invested in derivative securities, i.e., securities whose rate of return is determined by reference to some other instrument, index or commodity. (2) Fully insured by FDIC. (3) Insured up to the FDIC limit with uninsured amounts collateralized by U.S. federal agency securities at a minimum of 102% of principal plus accrued interest. 31 TAX MATTERS OPINIONS On the date of initial delivery of the Bonds, McCall, Parkhurst & Horton L.L.P., Dallas, Texas, Bond Counsel to the City, will render its opinion that, in accordance with statutes, regulations, published rulings and court decisions existing on the date thereof ( "Existing Law "), (1) interest on the Bonds for federal income tax purposes will be excludable from the "gross income" of the holders thereof and (2) the Bonds will not be treated as "specified private activity bonds" the interest on which would be included as an alternative minimum tax preference item under section 57(a)(5) of the Internal Revenue Code of 1986 (the "Code "). Except as stated above, Bond Counsel to the City will express no opinion as to any other federal, state or local tax consequences of the purchase, ownership or disposition of the Bonds. See Appendix C — Form of Opinion of Bond Counsel. In rendering each of the foregoing opinions, Bond Counsel to the City will rely upon (a) certain information and representations of the City, including information and representations contained in the City's federal tax certificate with respect to each Bond issue, (b) covenants of the City contained in the Bond documents relating to certain matters, including arbitrage and the use of the proceeds of the Bonds and the Refunded Obligations and the property financed or refinanced therewith, and (c) the verification report prepared by Grant Thornton LLP. Failure by the City to observe the aforementioned representations or covenants could cause the interest on the Bonds to become taxable retroactively to the date of issuance. The Code and the regulations promulgated thereunder contain a number of requirements that must be satisfied subsequent to the issuance of the Bonds in order for interest on the Bonds to be, and to remain, excludable from gross income for federal income tax purposes. Failure to comply with such requirements may cause interest on the Bonds to be included in gross income retroactively to the date of issuance of the Bonds. The opinion of Bond Counsel to the City is conditioned on compliance by the City with such requirements, and Bond Counsel to the City has not been retained to monitor compliance with these requirements subsequent to the issuance of the Bonds. Bond Counsel's opinion represents its legal judgment based upon its review of Existing Law and the reliance on the aforementioned information, representations and covenants. Bond Counsel's opinion is not a guarantee of a result. The Existing Law is subject to change by the Congress and to subsequent judicial and administrative interpretation by the courts and the Department of the Treasury. There can be no assurance that such Existing Law or the interpretation thereof will not be changed in a manner which would adversely affect the tax treatment of the purchase, ownership or disposition of the Bonds. A ruling was not sought from the Internal Revenue Service by the City with respect to the Bonds or the projects being financed or refinanced therewith. Bond Counsel's opinion represents its legal judgment based upon its review of Existing Law and the representations of the City that it deems relevant to render such opinion and is not a guarantee of a result. No assurances can be given as to whether or not the Internal Revenue Service will commence an audit of the Bonds, or as to whether the Internal Revenue Service would agree with the opinion of Bond Counsel. If an audit is commenced, under current procedures the Internal Revenue Service is likely to treat the City as the taxpayer and the holders of the Bonds may have no right to participate in such procedure. No additional interest will be paid upon any determination of taxability. FEDERAL INCOME TAX ACCOUNTING TREATMENT OF ORIGINAL ISSUE DISCOUNT The initial public offering price to be paid for one or more maturities of the Bonds may be less than the principal amount thereof or one or more periods for the payment of interest on the Bonds may not be equal to the accrual period or be in excess of one year (the "Original Issue Discount Bonds "). In such event, the difference between (i) the "stated redemption price at maturity" of each Original Issue Discount Bond, and (ii) the initial offering price to the public of such Original Issue Discount Bond would constitute original issue discount. The "stated redemption price at maturity" means the sum of all payments to be made on the Bonds less the amount of all periodic interest payments. Periodic interest payments are payments which are made during equal accrual periods (or during any unequal period if it is the initial or final period) and which are made during accrual periods which do not exceed one year. Under existing law, any owner who has purchased such Original Issue Discount Bond in the initial public offering is entitled to exclude from gross income (as defined in section 61 of the Code) an amount of income with respect to such Original Issue Discount Bond equal to that portion of the amount of such original issue discount allocable to the accrual period. For a discussion of certain collateral federal tax consequences, see discussion set forth below. In the event of the redemption, sale or other taxable disposition of such Original Issue Discount Bond prior to stated maturity, however, the amount realized by such owner in excess of the basis of such Original Issue Discount Bond in the hands of such owner (adjusted upward by the portion of the original issue discount allocable to the period for which such Original Issue Discount Bond was held by such initial owner) is includable in gross income. 32 Under existing law, the original issue discount on each Original Issue Discount Bond is accrued daily to the stated maturity thereof (in amounts calculated as described below for each six -month period ending on the date before the semiannual anniversary dates of the date of the Bonds and ratably within each such six -month period) and the accrued amount is added to an initial owner's basis for such Original Issue Discount Bond for purposes of determining the amount of gain or loss recognized by such owner upon the redemption, sale or other disposition thereof. The amount to be added to basis for each accrual period is equal to (a) the sum of the issue price and the amount of original issue discount accrued in prior periods multiplied by the yield to stated maturity (determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period) less (b) the amounts payable as current interest during such accrual period on such Original Issue Discount Bond. The federal income tax consequences of the purchase, ownership, redemption, sale or other disposition of Original Issue Discount Bonds which are not purchased in the initial offering at the initial offering price may be determined according to rules which differ from those described above. All owners of Original Issue Discount Bonds should consult their own tax advisors with respect to the determination for federal, state and local income tax purposes of the treatment of interest accrued upon redemption, sale or other disposition of such Original Issue Discount Bonds and with respect to the federal, state, local and foreign tax consequences of the purchase, ownership, redemption, sale or other disposition of such Original Issue Discount Bonds. COLLATERAL FEDERAL INCOME TAX CONSEQUENCES The following discussion is a summary of certain collateral federal income tax consequences resulting from the purchase, ownership or disposition of the Bonds. This discussion is based on existing statutes, regulations, published rulings and court decisions, all of which are subject to change or modification, retroactively. The following discussion is applicable to investors, other than those who are subject to special provisions of the Code, such as financial institutions, property and casualty insurance companies, life insurance companies, individual recipients of Social Security or Railroad Retirement benefits, individuals allowed an earned income credit, certain S corporations with accumulated earnings and profits and excess passive investment income, foreign corporations subject to the branch profits tax, taxpayers qualifying for the health insurance premium assistance credit, and taxpayers who may be deemed to have incurred or continued indebtedness to purchase tax- exempt obligations. THE DISCUSSION CONTAINED HEREIN MAY NOT BE EXHAUSTIVE. INVESTORS, INCLUDING THOSE WHO ARE SUBJECT TO SPECIAL PROVISIONS OF THE CODE, SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE TAX TREATMENT WHICH MAY BE ANTICIPATED TO RESULT FROM THE PURCHASE, OWNERSHIP AND DISPOSITION OF TAX- EXEMPT BONDS BEFORE DETERMINING WHETHER TO PURCHASE THE OBLGATIONS. Interest on the Bonds will be includable as an adjustment for "adjusted current earnings" to calculate the alternative minimum tax imposed on corporations by section 55 of the Code. Under section 6012 of the Code, holders of tax - exempt obligations, such as the Bonds, may be required to disclose interest received or accrued during each taxable year on their returns of federal income taxation. Section 1276 of the Code provides for ordinary income tax treatment of gain recognized upon the disposition of a tax - exempt obligation, such as the Bonds, if such obligation was acquired at a "market discount" and if the fixed maturity of such obligation is equal to, or exceeds, one year from the date of issue. Such treatment applies to "market discount bonds" to the extent such gain does not exceed the accrued market discount of such bonds; although for this purpose, a de minimis amount of market discount is ignored. A "market discount bond" is one which is acquired by the holder at a purchase price which is less than the stated redemption price at maturity or, in the case of a bond issued at an original issue discount, the "revised issue price" (i.e., the issue price plus accrued original issue discount). The "accrued market discount" is the amount which bears the same ratio to the market discount as the number of days during which the holder holds the obligation bears to the number of days between the acquisition date and the final maturity date. STATE, LOCAL AND FOREIGN TAXES Investors should consult their own tax advisors concerning the tax implications of the purchase, ownership or disposition of the Bonds under applicable state or local laws. Foreign investors should also consult their own tax advisors regarding the tax consequences unique to investors who are not United States persons. FUTURE AND PROPOSED LEGISLATION Tax legislation, administrative actions taken by tax authorities, or court decisions, whether at the Federal or state level, may adversely affect the tax - exempt status of interest on the Bonds under Federal or state law and could affect the market price or marketability of the Bonds. Any such proposal could limit the value of certain deductions and exclusions, including the exclusion for tax - exempt interest. The likelihood of any such proposal being enacted cannot be predicted. Prospective purchasers of the Bonds should consult their own tax advisors regarding the foregoing matters. 33 CONTINUING DISCLOSURE OF INFORMATION In the Bond Ordinance, the City has made the following agreement for the benefit of the holders and beneficial owners of the Bonds. The City is required to observe the agreement for so long as it remains obligated to advance funds to pay the Bonds. Under the agreement, the City will be obligated to provide certain updated financial information and operating data annually, and timely notice of specified events, to the Municipal Securities Rulemaking Board (the "MSRB "). ANNUAL REPORTS ... The City shall provide annually to the MSRB, in the electronic format prescribed by the MSRB, financial information and operating data (the "Annual Operating Report") with respect to the City of the general type included in this Official Statement under Tables numbered 1 through 5 and 7 through 14. The City will additionally provide financial statements of the City (the "Financial Statements "), that will be (i) prepared in accordance with the accounting principles described in the City's annual audited financial statements or such other accounting principles as the City may be required to employ from time to time pursuant to State law or regulation and shall be in substantially the form included in this Official Statement and (ii) audited, if the City commissions an audit of such Financial Statements and the audit is completed within the period during which they must be provided. The City will update and provide the Annual Operating Report within six months after the end of each fiscal year and the Financial Statements within 12 months of the end of each fiscal year, in each case beginning with the fiscal year ending in and after 2015. The City may provide the Financial Statements earlier, including at the time it provides its Annual Operating Report, but if the audit of such Financial Statements is not complete within 12 months after any such fiscal year end, then the City shall file unaudited Financial Statements within such 12 -month period and audited Financial Statements for the applicable fiscal year, when and if the audit report on such Financial Statements becomes available. The financial information and operating data to be provided may be set forth in full in one or more documents or may be included by specific reference to any document available to the public on the MSRB's Internet Web site or filed with the United States Securities and Exchange Commission (the "SEC "), as permitted by SEC Rule 15c2 -12 (the "Rule "). The updated information will include audited financial statements, if the City commissions an audit and it is completed by the required time. If audited financial statements are not available by the required time, the City will provide unaudited financial information of the type described in the preceding paragraph by the required time and audited financial statements when and if such audited financial statements become available. Any such financial statements will be prepared in accordance with the accounting principles described in Appendix B or such other accounting principles as the City may be required to employ from time to time pursuant to State law or regulation. The City's current fiscal year end is September 30. Accordingly, it must provide updated information by March 31 in each year, unless the City changes its fiscal year. If the City changes its fiscal year, it will notify the MSRB of the change. NOTICE OF CERTAIN EVENTS ... The City will also provide timely notices of certain events to the MSRB. The City will provide notice of any of the following events with respect to the Bonds to the MSRB in a timely manner (but not in excess of ten business days after the occurrence of the event): (1) principal and interest payment delinquencies; (2) non - payment related defaults, if material; (3) unscheduled draws on debt service reserves reflecting financial difficulties; (4) unscheduled draws on credit enhancements reflecting financial difficulties; (5) substitution of credit or liquidity providers, or their failure to perform; (6) adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701 -TEB), or other material notices or determinations with respect to the tax status of the Bonds, or other material events affecting the tax status of the Bonds; (7) modifications to rights of holders of the Bonds, if material; (8) Bond calls, if material, and tender offers; (9) defeasances; (10) release, substitution, or sale of property securing repayment of the Bonds, if material; (11) rating changes; (12) bankruptcy, insolvency, receivership, or similar event of the City, which shall occur as described below; (13) the consummation of a merger, consolidation, or acquisition involving the City or the sale of all or substantially all of its assets, other than in the ordinary course of business, the entry into of a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; and (14) appointment of a successor or additional trustee or the change of name of a trustee, if material. In addition, the City will provide timely notice of any failure by the City to provide annual financial information in accordance with their agreement described above under "Annual Reports ". For these purposes, any event described in (12) in the immediately preceding paragraph is considered to occur when any of the following occur: the appointment of a receiver, fiscal agent, or similar officer for the City in a proceeding under the United States Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed jurisdiction over substantially all of the assets or business of the City, or if such jurisdiction has been assumed by leaving the existing governing body and officials or officers in possession but subject to the supervision and orders of a court or governmental authority, or the entry of an order confirming a plan of reorganization, arrangement, or liquidation by a court or governmental authority having supervision or jurisdiction over substantially all of the assets or business of the City. LIMITATIONS AND AMENDMENTS ... The City has agreed to update information and to provide notices of specified events only as described above. The City has not agreed to provide other information that may be relevant or material to a complete presentation of its financial results of operations, condition, or prospects or agreed to update any information that is provided, except as described above. The City makes no representation or warranty concerning such information or concerning its usefulness to a decision to invest in or sell Bonds at any future date. The City disclaims any contractual or tort liability for damages resulting in whole or in part from any breach of its continuing disclosure agreement or from any statement made pursuant to its agreement, although holders of Bonds may seek a writ of mandamus to compel the City to comply with its agreement. 34 The City may amend its continuing disclosure agreement for either or both of the Bonds and Certificates from time to time to adapt to changed circumstances that arise from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations of the City, if (i) the agreement, as amended, would have permitted an underwriter to purchase or sell Bonds or Certificates, as the case may be, in the offering described herein in compliance with the Rule, taking into account any amendments or interpretations of the Rule to the date of such amendment, as well as such changed circumstances, and (ii) either (a) the holders of a majority in aggregate principal amount of the outstanding Bonds or Certificates, as the case may be, consent to the amendment or (b) any person unaffiliated with the City (such as nationally recognized bond counsel) determines that the amendment will not materially impair the interests of the holders and beneficial owners of the Bonds or Certificates, as the case may be. The City may also amend or repeal the provisions of this continuing disclosure agreement if the SEC amends or repeals the applicable provisions of the Rule or a court of final jurisdiction enters judgment that such provisions of the Rule are invalid, but only if and to the extent that the provisions of this sentence would not prevent an underwriter from lawfully purchasing or selling Bonds in the primary offering of the Bonds. If the City so amends the agreement, it has agreed to include with the next financial information and operating data provided in accordance with its agreement described above under "Annual Reports" an explanation, in narrative form, of the reasons for the amendment and of the impact of any change in the type of financial information and operating data so provided. COMPLIANCE WITH PRIOR UNDERTAKINGS ... During the last five years, the City has complied in all material respects with all continuing disclosure agreements made by it in accordance with SEC Rule 15c2 -12. OTHER INFORMATION RATINGS The Bonds and the presently outstanding tax supported debt of the City are rated "f" by Fitch and " ffl" by S &P. An explanation of the significance of such ratings may be obtained from the company furnishing the rating. The ratings reflect only the respective views of such organizations and the City makes no representation as to the appropriateness of the ratings. There is no assurance that such ratings will continue for any given period of time or that they will not be revised downward or withdrawn entirely by either or both of such rating companies, if in the judgment of either or both companies, circumstances so warrant. Any such downward revision or withdrawal of such ratings, or either of them, may have an adverse effect on the market price of the Bonds. LITIGATION It is the opinion of the City Attorney and City Staff that there is no pending, or to their knowledge threatened, litigation or other proceeding against the City that could have a material adverse financial impact upon the City or its operations over and above those already disclosed in the City's Comprehensive Annual Financial Report, see Appendix B, Notes V.F. and V.G., page 69. Notwithstanding the foregoing, in a letter dated January 28, 2011, the US Department of Justice (the "DOJ ") at the request of the United States Environmental Protection Agency ( the "EPA "), apprised the City of some claimed civil violations of its Texas Pollutant Discharge Elimination System permit under the United States Clean Water Act (the "CWA "). In relevant part, the letter complained of a number of overflow discharges of untreated or partially treated wastewater into the watershed of area waters, during the time period from at least January 1, 2006 until the date of the letter. Through settlement discussions, the EPA, the DOJ and the City agreed to an EPA Administrative Order requiring the City to take certain actions to bring the City in compliance with the Order. The EPA issued an Administrative Order (the "AO ") to the City on July 7, 2014. The AO assessed no penalties or fines, but requires the City to complete certain tasks and make certain improvements to the City's sewer system over the next four to five years. The City anticipates that the costs of such improvements to be approximately $39 million. All of those costs are included in the City's sewer system five -year capital improvement program. The City intends to fund those costs through a combination of revenues of its waterworks and sewer system and bond issuances over such period of time. At the time of the initial delivery of the Bonds, the City will provide the Initial Purchaser with a certificate to the effect that no litigation of any nature has been filed or is then pending challenging the issuance of the Bonds or that affects the payment and security of the Bonds or in any other manner questioning the issuance, sale or delivery of the Bonds. REGISTRATION AND QUALIFICATION OF BONDS FOR SALE The sale of the Bonds has not been registered under the Federal Securities Act of 1933, as amended, in reliance upon the exemption provided thereunder by Section 3(a)(2); and the Bonds have not been qualified under the Securities Act of Texas in reliance upon various exemptions contained therein; nor have the Bonds been qualified under the securities acts of any other jurisdiction. The City assumes no responsibility for qualification of the Bonds under the securities laws of any jurisdiction in which the Bonds may be sold, assigned, pledged, hypothecated or otherwise transferred. This disclaimer of responsibility for qualification for sale or other disposition of the Bonds shall not be construed as an interpretation of any kind with regard to the availability of any exemption from securities registration provisions. 35 LEGAL INVESTMENTS AND ELIGIBILITY TO SECURE PUBLIC FUNDS IN TEXAS Section 1201.041 of the Public Security Procedures Act (Chapter 1201, Texas Government Code) provides that the Bonds are negotiable instruments, investment securities governed by Chapter 8, Texas Business and Commerce Code, and are legal and authorized investments for insurance companies, fiduciaries, and trustees, and for the sinking funds of municipalities or other political subdivisions or public agencies of the State of Texas. In addition, various provisions of the Texas Finance Code provide that, subject to a prudent investor standard, the Bonds are legal investments for state banks, savings banks, trust companies with at least $1 million of capital, and savings and loan associations. For political subdivisions in Texas that have adopted investment policies and guidelines in accordance with the Public Funds Investment Act (Texas Government Code, Chapter 2256), the Bonds may have to be assigned a rating of at least "A" or its equivalent as to investment quality by a national rating agency before such obligations are eligible investments for sinking funds and other public funds. The City has made no investigation of other laws, rules, regulations, or investment criteria which might apply to such institutions or entities or which might limit the suitability of the Bonds for any of the foregoing purposes or limit the authority of such institutions or entities to purchase or invest in the Bonds for such purposes. The City has made no review of laws in other states to determine whether the Bonds are legal investments for various institutions in those states. LEGAL OPINIONS AND No- LITIGATION CERTIFICATE The City will furnish a complete transcript of proceedings had incident to the authorization and issuance of the Bonds, including the unqualified approving legal opinions of the Attorney General of Texas approving the Initial Bond and to the effect that the Bonds are valid and legally binding obligations of the City, and based upon examination of such transcript of proceedings, the approving legal opinions of Bond Counsel, to like effect and to the effect that the interest on the Bonds will be excludable from gross income for federal income tax purposes under Section 103(a) of the Code, subject to the matters described under "Tax Matters" herein, including the alternative minimum tax on corporations. The customary closing papers, including a certificate to the effect that no litigation of any nature has been filed or is then pending to restrain the issuance and delivery of the Bonds, or which would affect the provision made for their payment or security or in any manner questioning the validity of said Bonds will also be furnished. Though it represents the Financial Advisor and purchasers of debt from governmental issuers from time to time in matters unrelated to the issuance of the Bonds, Bond Counsel has been engaged by and only represents the City in connection with the issuance of the Bonds. Bond Counsel was not requested to participate, and did not take part, in the preparation of the Notice of Sale and Bidding Instructions, the Official Bid Form and the Official Statement, and such firm has not assumed any responsibility with respect thereto or undertaken independently to verify any of the information contained therein, except that, in its capacity as Bond Counsel, such firm has reviewed the information describing the Bonds in the Official Statement to verify that such description conforms to the provisions of the Bond Ordinance. The legal fee to be paid Bond Counsel for services rendered in connection with the issuance of the Bonds is contingent on the sale and delivery of the Bonds. The legal opinion will accompany the Bonds deposited with DTC or will be printed on the Bonds in the event of the discontinuance of the Book - Entry-Only System. The legal opinions to be delivered concurrently with the delivery of the Bonds express the professional judgment of the attorneys rendering the opinions as to the legal issues explicitly addressed therein. In rendering a legal opinion, the attorney does not become an insurer or guarantor of that expression of professional judgment, of the transaction opined upon, or of the future performance of the parties to the transaction. Nor does the rendering of an opinion guarantee the outcome of any legal dispute that may arise out of the transaction. AUTHENTICITY OF FINANCIAL DATA AND OTHER INFORMATION The financial data and other information contained herein have been obtained from City records, audited financial statements, and other sources which are believed to be reliable. There is no guarantee that any of the assumptions or estimates contained herein will be realized. All of the summaries of the statutes, documents, and ordinances contained in this Official Statement are made subject to all of the provisions of such statutes, documents, and ordinances. These summaries do not purport to be complete statements of such provisions and reference is made to such documents for further information. Reference is made to original documents in all respects. FINANCIAL ADVISOR First Southwest Company, LLC is employed as Financial Advisor to the City in connection with the issuance of the Bonds. The Financial Advisor's fee for services rendered with respect to the sale of the Bonds is contingent upon the issuance and delivery of the Bonds. First Southwest Company, LLC, in its capacity as Financial Advisor, has relied on the opinion of Bond Counsel and has not verified and does not assume any responsibility for the information, covenants, and representations contained in any of the legal documents with respect to the federal income tax status of the Bonds, or the possible impact of any present, pending, or future actions taken by any legislative or judicial bodies. 36 The Financial Advisor to the City has provided the following sentence for inclusion in this Official Statement. The Financial Advisor has reviewed the information in this Official Statement in accordance with, and as part of, its responsibilities to the City and, as applicable, to investors under the federal securities laws as applied to the facts and circumstances of this transaction, but the Financial Advisor does not guarantee the accuracy or completeness of such information. VERIFICATION OF ARITHMETICAL AND MATHEMATICAL COMPUTATIONS Grant Thornton, a firm of independent public accountants, will deliver to the City, on or before the settlement date of the Bonds, the Report indicating that it has verified, in accordance with attestation standards established by the American Institute of Certified Public Accountants, the mathematical accuracy of (a) the mathematical computations of the adequacy of the cash and the maturing principal of and interest on the Refunded Bonds Escrowed Securities, to pay, when due, the maturing principal of, interest on and related call premium requirements, if any, of the Refunded Bonds, (b) the mathematical computations of the adequacy of the cash and the maturing principal of and interest on the Refunded TMPA Obligations Escrowed Securities, to pay, when due, the maturing principal of, interest on and related call premium requirements, if any, of the Refunded TMPA Bonds, and (c) the mathematical computations of yield used by Bond Counsel to support its opinion that interest on the Bonds will be excluded from gross income for federal income tax purposes. The verification performed by Grant Thornton will be solely based upon data, information and documents provided to Grant Thornton by First Southwest Company, LLC on behalf of the City and Specialized Public Finance Inc. on behalf of TMPA. Grant Thornton has restricted its procedures to recalculating the computations provided by First Southwest Company, LLC on behalf of the City and Specialized Public Finance Inc. on behalf of TMPA and has not evaluated or examined the assumptions or information used in the computations. The report will be relied upon by Bond Counsel in rendering its opinion with respect to the tax - exemption of interest on the Bonds and with respect to the defeasance of the Refunded Bonds and the Refunded TMPA Obligations. INITIAL PURCHASER OF THE BONDS After requesting competitive bids for the Bonds, the City accepted the bid of (the "Initial Purchaser ") to purchase the Bonds at the interest rates shown on the cover page of the Official Statement at a price of par plus a cash premium of $ . The Initial Purchaser can give no assurance that any trading market will be developed for the Bonds after their sale by the City to the Initial Purchaser. The City has no control over the price at which the Bonds are subsequently sold and the initial yield at which the Bonds will be priced and reoffered will be established by and will be the sole responsibility of the Initial Purchaser. CERTIFICATION OF THE OFFICIAL STATEMENT At the time of payment for and delivery of the Bonds, the City will furnish to the Initial Purchasers a certificate, executed by a proper City officer, acting in such officer's official capacity, to the effect that to the best of such officer's knowledge and belief: (a) the descriptions and statements of or pertaining to the City contained in the Official Statement, and any addenda, supplement, or amendment thereto, on the date of the Official Statement, on the date of sale of the Bonds, and the acceptance of the best bid therefor, and on the date of the delivery, were and are true and correct in all material respects; (b) insofar as the City and its affairs, including its financial affairs, are concerned, the Official Statement did not and does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (c) insofar as the descriptions and statements, including financial data, of or pertaining to entities, other than the City, and their activities contained in the Official Statement are concerned, such statements and data have been obtained from sources which the City believes to be reliable and the City has no reason to believe that they are untrue in any material respect; and (d) there has been no material adverse change in the financial condition of the City since the date of the last audited financial statements of the City. FORWARD-LOOKING STATEMENTS DISCLAIMER The statements contained in this Official Statement, and in any other information provided by the City, that are not purely historical, are forward- looking statements, including statements regarding the City's expectations, hopes, intentions, or strategies regarding the future. Readers should not place undue reliance on forward - looking statements. All forward - looking statements included in this Official Statement are based on information available to the City on the date hereof, and the City assumes no obligation to update any such forward - looking statements. The City's actual results could differ materially from those discussed in such forward - looking statements. 37 The forward - looking statements included herein are necessarily based on various assumptions and estimates and are inherently subject to various risks and uncertainties, including risks and uncertainties relating to the possible invalidity of the underlying assumptions and estimates and possible changes or developments in social, economic, business, industry, market, legal, and regulatory circumstances and conditions and actions taken or omitted to be taken by third parties, including customers, suppliers, business partners and competitors, and legislative, judicial, and other governmental authorities and officials. Assumptions related to the foregoing involve judgments with respect to, among other things, future economic, competitive, and market conditions and future business decisions, all of which are difficult or impossible to predict accurately and many of which are beyond the control of the City. Any of such assumptions could be inaccurate and, therefore, there can be no assurance that the forward - looking statements included in this Official Statement will prove to be accurate. MISCELLANEOUS The Ordinance authorizing the issuance of the Bonds will approve the form and content of this Official Statement, and any addenda, supplement or amendment thereto, and authorize its further use in the reoffering of the Bonds by the Initial Purchaser. PRICING OFFICER City of Denton, Texas 38 Schedule I SCHEDULE OF REFUNDED BONDS* Utility System Revenue Refunding Bonds, Series 2005 $32,435,000 $32,435,000 The 2016 - 2022 maturities will be redeemed prior to original maturity on December 1, 2015 at par. Utility System Revenue Bonds, Series 2006 Principal Principal Original Maturity Interest Amount Amount Dated Date Date Rate Outstanding Refunded 5/15/2005 12/1/2016 5.000% $ 5,980,000 $ 5,980,000 12/1/2017 5.000% 6,270,000 6,270,000 12/1/2018 5.000% 6,240,000 6,240,000 12/1/2019 5.000% 6,575,000 6,575,000 12/1/2020 5.000% 2,720,000 2,720,000 12/1/2021 5.000% 2,875,000 2,875,000 12/1/2022 4.250% 1,775,000 1,775,000 $32,435,000 $32,435,000 The 2016 - 2022 maturities will be redeemed prior to original maturity on December 1, 2015 at par. Utility System Revenue Bonds, Series 2006 $ 4,825,000 $ 4,825,000 The 2017 - 2025 maturities will be redeemed prior to original maturity on December 1, 2016 at par. (1) Represents a mandatory sinking fund redemption of a term bond maturing December 1, 2023. (2) Represents a mandatory sinking fund redemption of a term bond maturing December 1, 2025. * Preliminary, subject to change. Principal Principal Original Maturity Interest Amount Amount Dated Date Date Rate Outstanding Refunded 7/15/2006 12/1/2017 4.500% $ 440,000 $ 440,000 12/1/2018 4.500% 460,000 460,000 12/1/2019 4.500% 485,000 485,000 12/1/2020 4.500% 505,000 505,000 12/1/2021 4.500% 530,000 530,000 12/1/2022 (1) 4.500% 560,000 560,000 12/1/2023 (1) 4.500% 585,000 585,000 12/1/2024 (2) 4.625% 615,000 615,000 12/1/2025 (2) 4.625% 645,000 645,000 $ 4,825,000 $ 4,825,000 The 2017 - 2025 maturities will be redeemed prior to original maturity on December 1, 2016 at par. (1) Represents a mandatory sinking fund redemption of a term bond maturing December 1, 2023. (2) Represents a mandatory sinking fund redemption of a term bond maturing December 1, 2025. * Preliminary, subject to change. APPENDIX A GENERAL INFORMATION REGARDING THE CITY APPENDIX B EXCERPTS FROM THE CITY OF DENTON, TEXAS COMPREHENSIVE ANNUAL FINANCIAL REPORT For the Year Ended September 30, 2014 The information contained in this Appendix consists of excerpts from the City of Denton, Texas Comprehensive Annual Financial Report for the Year Ended September 30, 2014, and is not intended to be a complete statement of the City's financial condition. Reference is made to the complete Report for further information. APPENDIX C FORM OF BOND COUNSEL'S OPMON sAlegal\ our d0cuments \ordinances \15 \ordinance 7 -25 -15 (with $lOmm).docx Exhibit 5 ORDINANCE NO. AN ORDINANCE CONSIDERING ALL MATTERS INCIDENT AND RELATED TO THE ISSUANCE, SALE AND DELIVERY OF UP TO $40,860,000 IN PRINCIPAL AMOUNT OF "CITY OF DENTON GENERAL OBLIGATION REFUNDING BONDS, SERIES 2015 "; AUTHORIZING THE ISSUANCE OF THE BONDS; DELEGATING THE AUTHORITY TO CERTAIN CITY OFFICIALS TO EXECUTE CERTAIN DOCUMENTS RELATING TO THE SALE OF THE BONDS; APPROVING AND AUTHORIZING INSTRUMENTS AND PROCEDURES RELATING TO SAID BONDS; ENACTING OTHER PROVISIONS RELATING TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas (the "Issuer ") has previously issued, and there are presently outstanding revenue bonds of the Issuer secured by a pledge of revenues derived by the Issuer from the ownership and operation of the Issuer's Utility System (consisting of the Issuer's combined waterworks system, sanitary sewer system, and electric light and power system); and WHEREAS, the Issuer now desires to refund all or part of the outstanding revenue bonds described in Schedule I attached hereto and incorporated herein (the "Eligible Refunded Bonds "), and those Eligible Refunded Bonds designated by the Pricing Officer in the Pricing Certificate, each as defined below, to be refunded are herein referred to as the "Refunded Bonds "; and WHEREAS, Chapter 1207, Texas Government Code, as amended ( "Chapter 1207 ") authorizes the Issuer to issue refunding bonds and to deposit the proceeds from the sale thereof, together with any other available funds or resources, directly with a paying agent for the Refunded Bonds or a trust company or commercial bank that does not act as a depository for the Issuer and is named in these proceedings, and such deposit, if made before the payment dates of the Refunded Bonds, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the Refunded Bonds; and WHEREAS, Chapter 1207 further authorizes the Issuer to enter into an escrow or similar agreement with such paying agent for the Refunded Bonds or trust company or commercial bank with respect to the safekeeping, investment, reinvestment, administration and disposition of any such deposit, upon such terms and conditions as the Issuer and such paying agent or trust company or commercial bank may agree; and WHEREAS, the City Council hereby finds and declares a public purpose and it is in the best interests of the Issuer to refund the Refunded Bonds in order to achieve a debt service savings, with such savings, among other information and terms to be included in a pricing certificate (the "Pricing Certificate ") to be executed by the Pricing Officer (hereinafter designated), all in accordance with the provisions of Section 1207.007, Texas Government Code; and WHEREAS, all the Refunded Bonds mature or are subject to redemption prior to maturity within 20 years of the date of the bonds hereinafter authorized; and WHEREAS, the Issuer is a member city of the Texas Municipal Power Agency ( "TMPA "); and s:A legal \our documents \ordinances\1 5 \ordinance 7-25-15 (with $ l Omm).docx WHEREAS, the Issuer, the Cities of Bryan, Garland and Greenville (together with the Issuer, the "Member Cities ") and TMPA have entered into identical Power Sales Contracts dated September 1, 1976, as amended (the "Power Sales Agreement "), under which TMPA is obligated to sell electric energy to the Member Cities, and each of the Member Cities is unconditionally obligated to pay to TMPA, without offset or counterclaim and without regard to whether energy is delivered by TMPA to each Member City, including the Issuer, or whether the Member Cities, including the Issuer, actually uses energy from TMPA's generating facilities, the percentage of TMPA's Annual System Costs (as defined in the Power Sales Agreement), including the payment of the Debt Service Requirements (as defined in the Power Sales Agreement) which may from time to time exist, as set forth below: City of Bryan: 21.7% City of Denton: 21.3% City of Garland: 47.0% City of Greenville: 10.0% Such payment percentages are hereinafter referred to as the "Contract Percentages "; and WHEREAS, TMPA has outstanding its Refunding Revenue Bonds, Series 1993 constituting a "Debt" (within the meaning of the Power Sales Agreement, and referred to herein as the "TMPA Series 1993 Bonds "), the Contract Percentage of which the Issuer is obligated to pay under the Power Sales Agreement (the Issuer's Contract Percentage of a portion of the September 1, 2016 maturity of the TMPA Series 1993 Bonds, as being more fully described in Schedule I to this Ordinance, is herein referred to as the "Refunded TMPA Obligations "), which represent a portion of the contractual obligations of the Member Cities incurred in accordance with the Power Sales Agreement; and WHEREAS, in accordance with resolution 2012 -7 -8 adopted by the TMPA Board of Directors on July 12, 2012 (the "TMPA Resolution ") and an agreement among the Member Cities, each Member City may individually prepay or restructure the portion of the contractual obligations under the Power Sales Agreement of the Member Cities represented by the TMPA Series 1993 Bonds through the use of cash on hand or proceeds of bonds issued by a Member City; and WHEREAS, Chapter 1207 authorizes the Issuer to issue refunding bonds to refund any special obligation of the Issuer; and WHEREAS, the bonds hereafter authorized are being issued and delivered pursuant to Chapter 1207; and WHEREAS, the Issuer finds that the Refunded TMPA Obligations, which constitute a portion of the payment obligations of the Issuer under the Power Sales Agreement, constitute a special obligation of the Issuer that may be refunded with proceeds of bonds issued under Chapter 1207; and Page 2 s:Alegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx WHEREAS, Chapter 1207 authorizes the Issuer to issue refunding bonds and to deposit the proceeds from the sale thereof, and any other available funds or resources, directly with a place of payment (paying agent) for the Refunded TMPA Obligations or other authorized depository, and such deposit, if made before such payment dates, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the Refunded TMPA Obligations; and WHEREAS, the TMPA Resolution provides for the defeasance and payment of the TMPA Series 1993 Bonds consisting of the Refunded TMPA Bonds (as defined in Schedule I) upon deposit of the necessary funds therefor, and the Issuer has been provided with an escrow agreement (the "Refunded TMPA Obligations Escrow Agreement ") with respect to the Refunded TMPA Bonds to be executed and delivered, in substantially the form and substance presented, by TMPA and the Issuer pursuant to the TMPA Resolution; and WHEREAS, pursuant to subsection (a) of Section 1207.008, Texas Government Code, this City Council hereby finds and determines that it is in the Issuer's best interests to issue the Bonds in order to refund all or a portion of the Refunded TMPA Obligations incurred, due and owing by the Issuer under the Power Sales Agreement, consistent with the terms of the TMPA Resolution, and that the refunding of the contractual obligations of the Issuer incurred in connection with the Refunded TMPA Bonds (as defined in Schedule I hereto) constitutes a public purpose in allowing the Issuer to amortize the contractual obligations over a longer period of time. The City Council further finds and determines that the aggregate amount of payments to be made under the Bonds allocable to the refunding of the Refunded TMPA Obligations exceeds the aggregate amount of payments that would have been made under the terms of the Refunded TMPA Obligations and the maximum amount by which the aggregate amount of payments to be made under the Bonds allocable to the refunding of the Refunded TMPA Obligations exceeds the aggregate amount of payments that would have been made under the terms of the Refunded TMPA Obligations shall be $750,000; and WHEREAS, the bonds hereinafter authorized to be issued are to be issued, sold and delivered pursuant to the general laws of the State of Texas, including Chapter 1207 and the Issuer's Home Rule Charter; and WHEREAS, it is officially found, determined, and declared that the meeting at which this Ordinance has been adopted was open to the public and public notice of the time, place and subject matter of the public business to be considered and acted upon at said meeting, including this Ordinance, was given, all as required by the applicable provisions of Texas Government Code Chapter 551; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. RECITALS, AMOUNT, PURPOSE AND DESIGNATION OF THE BONDS. (a) The recitals set forth in the preamble hereof are incorporated herein and shall have the same force and effect as if set forth in this Section. Page 3 sAlegal\ our documents \ordinances \15 \ordinance 7 -25 -15 (with $1 Onun).docx (b) The term "Bonds" as used in this Ordinance shall mean and include collectively the bond initially issued and delivered pursuant to this Ordinance (the 'Initial Bond ") and all substitute bonds exchanged therefor, as well as all other substitute bonds and replacement bonds issued pursuant hereto, and the term "Bond" shall mean any of the Bonds. (c) The Bonds of the City of Denton, Texas (the "Issuer ") are hereby authorized to be issued and delivered in the maximum aggregate principal amount of $40,860,000 for the public purpose of refunding the Refunded Bonds and the Refunded TMPA Obligations and to pay the costs associated with the issuance of the Bonds. (d) Each bond issued pursuant to this Ordinance shall be designated: "CITY OF DENTON GENERAL OBLIGATION REFUNDING BOND, SERIES 2015," and initially there shall be issued, sold, and delivered hereunder fully registered bonds, without interest coupons, payable to the respective registered owners thereof (with the Initial Bond being made payable to the Purchaser as described in Section 10 hereof), or to the registered assignee or assignees of said Bonds or any portion or portions thereof (in each case, the "Registered Owner "). The Bonds shall be in the respective principal amounts, shall be numbered, shall mature and be payable on the date or dates in each of the years and in the principal amounts, and shall bear interest to their respective dates of maturity or redemption prior to maturity at the rates per annum, as set forth in the Pricing Certificate. SECTION 2. DELEGATION TO PRICING OFFICER. (a) As authorized by Sections 1207.007, Texas Government Code, as amended, the City Manager or an Assistant City Manager (the "Pricing Officer ") is hereby authorized to act on behalf of the Issuer in selling and delivering the Bonds, determining which of the Eligible Refunded Bonds shall be refunded and carrying out the other procedures specified in this Ordinance, including, determining the date of sale of the Bonds, the date of the Bonds, any additional or different designation or title by which the Bonds shall be known, the price at which the Bonds will be sold, the years in which the Bonds will mature, the principal amount to mature in each of such years, the rate of interest to be borne by each such maturity, the interest payment and record dates, the price and terms upon and at which the Bonds shall be subject to redemption prior to maturity at the option of the Issuer, as well as any mandatory sinking fund redemption provisions, and all other matters relating to the issuance, sale, and delivery of the Bonds and the refunding of the Refunded Bonds and the Refunded TMPA Obligations, including without limitation establishing the redemption date for and effecting the redemption of the Refunded Bonds and obtaining municipal bond insurance for all or any portion of the Bonds (including in connection therewith the execution of any commitment agreements, membership agreements in mutual insurance companies, and other similar agreements) and providing for the terms and provisions thereof applicable to the Bonds, all of which shall be specified in the Pricing Certificate; provided that: (i) the aggregate original principal amount of the Bonds shall not exceed $40,860,000; Page 4 s: \legal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx (ii) the maximum stated maturity of the Bonds shall not exceed February 15, 2026; (iii) the Bonds shall bear interest at a fixed rate, and the net effective interest rate on the Bonds shall not exceed 3.25 %; (iv) the refunding of the Refunded Bonds must produce present value debt service savings of at least 3.00 %, net of any Issuer contribution; (v) the amount by which the aggregate amount of payments to be made under the Bonds allocable to the refunding of the Refunded TMPA Obligations exceeds the aggregate amount of payments that would have been made under the terms of the Refunded TMPA Obligations shall not exceed $750,000; and (vi) the delegation made hereby shall expire if not exercised by the Pricing Officer through execution of the Pricing Certificate on or prior to November 2, 2015. (b) A Pricing Officer shall cause Bonds to be issued to refund all Refunded TMPA Obligations within the parameters set forth herein to the extent the Refunded TMPA Obligations are not defeased with cash on hand. (c) In establishing the aggregate principal amount of the Bonds, the Pricing Officer shall establish an amount not exceeding the amount authorized in Subsection (a) hereof, which shall be sufficient in amount to provide for the purposes for which the Bonds are authorized and to pay costs of issuing the Bonds. The Bonds shall be sold with and subject to such terms as set forth in the Pricing Certificate. SECTION 3. CHARACTERISTICS OF THE BONDS. (a) Registration Transfer Conversion and Exchange; Authentication. The Issuer shall keep or cause to be kept at the principal corporate trust office of The Bank of New York Mellon Trust Company, National Association, Dallas, Texas, (the "Paying Agent /Registrar "), books or records for the registration of the transfer, conversion and exchange of the Bonds (the "Registration Books "), and the Issuer hereby appoints the Paying Agent /Registrar as its registrar and transfer agent to keep such books or records and make such registrations of transfers, conversions and exchanges under such reasonable regulations as the Issuer and Paying Agent /Registrar may prescribe; and the Paying Agent /Registrar shall make such registrations, transfers, conversions and exchanges as herein provided. The Paying Agent /Registrar shall obtain and record in the Registration Books the address of the Registered Owner of each Bond to which payments with respect to the Bonds shall be mailed, as herein provided; but it shall be the duty of each Registered Owner to notify the Paying Agent /Registrar in writing of the address to which payments shall be mailed, and such interest payments shall not be mailed unless such notice has been given. The Issuer shall have the right to inspect the Registration Books during regular business hours of the Paying Agent/Registrar, but otherwise the Paying Agent /Registrar shall keep the Registration Page 5 s:UegaRour documents \ordinances \15 \ordinance 7 -25 -15 (with $10nmi).docx Books confidential and, unless otherwise required by law, shall not permit their inspection by any other entity. The Issuer shall pay the Paying Agent/Registrar's standard or customary fees and charges for making such registration, transfer, conversion, exchange and delivery of a substitute Bond or Bonds. Registration of assignments, transfers, conversions and exchanges of Bonds shall be made in the manner provided and with the effect stated in the FORM OF BOND set forth in this Ordinance. Each substitute Bond shall bear a letter and /or number to distinguish it from each other Bond. Except as provided in Section 3(c) of this Ordinance, an authorized representative of the Paying Agent /Registrar shall, before the delivery of any such Bond, date and manually sign said Bond, and no such Bond shall be deemed to be issued or outstanding unless such Bond is so executed. The Paying Agent /Registrar promptly shall cancel all paid Bonds and Bonds surrendered for conversion and exchange. No additional ordinances, orders, or resolutions need be passed or adopted by the governing body of the Issuer or any other body or person so as to accomplish the foregoing conversion and exchange of any Bond or portion thereof, and the Paying Agent /Registrar shall provide for the printing, execution, and delivery of the substitute Bonds in the manner prescribed herein, and said Bonds shall be printed or typed on paper of customary weight and strength. Pursuant to Chapter 1201, Government Code, as amended, the duty of conversion and exchange of Bonds as aforesaid is hereby imposed upon the Paying Agent /Registrar, and, upon the execution of said Bond, the converted and exchanged Bond shall be valid, incontestable, and enforceable in the same manner and with the same effect as the Bonds that initially were issued and delivered pursuant to this Ordinance, approved by the Attorney General of the State of Texas (the "Attorney General ") and registered by the Comptroller of Public Accounts of the State of Texas (the "Comptroller "). (b) Payment of Bonds and Interest. The Issuer hereby further appoints the Paying Agent /Registrar to act as the paying agent for paying the principal of and interest on the Bonds, all as provided in this Ordinance. The Paying Agent /Registrar shall keep proper records of all payments made by the Issuer and the Paying Agent /Registrar with respect to the Bonds, and of all conversions and exchanges of Bonds, and all replacements of Bonds, as provided in this Ordinance. However, in the event of a nonpayment of interest on a scheduled payment date, and for thirty (30) days thereafter, a new record date for such interest payment (a "Special Record Date) will be established by the Paying Agent /Registrar, if and when funds for the payment of such interest have been received from the Issuer. Notice of the past due interest shall be sent at least five (5) business days prior to the Special Record Date by United States mail, first -class postage prepaid, to the address of each Registered Owner appearing on the Registration Books at the close of business on the last business day next preceding the date of mailing of such notice. (c) In General. The Bonds (i) shall be issued in fully registered form, without interest coupons, with the principal of and interest on such Bonds to be payable only to the Registered Owners thereof, (ii) may or shall be redeemed prior to their scheduled maturities (notice of which shall be given to the Paying Agent /Registrar by the Issuer at least 45 days prior to any such redemption date), (iii) may be converted and exchanged for other Bonds, (iv) may be transferred and assigned, (v) shall have the characteristics, (vi) shall be signed, sealed, executed and authenticated, (vii) the principal of and interest on the Bonds shall be payable, and (viii) shall be administered and the Paying Agent /Registrar and the Issuer shall have certain duties and Page 6 s:Alegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10nun).doex responsibilities with respect to the Bonds, all as provided, and in the manner and to the effect as required or indicated, in the FORM OF BOND set forth in this Ordinance (as modified in the Pricing Certificate). The Initial Bond is not required to be, and shall not be, authenticated by the Paying Agent /Registrar, but on each substitute Bond issued in conversion of and exchange for any Bond or Bonds issued under this Ordinance the Paying Agent /Registrar shall execute the Paying Agent /Registrar's Authentication Certificate, in the form set forth in the FORM OF BOND. (d) Paying_Agent /Registrar for the Bonds. The Issuer covenants with the Registered Owners of the Bonds that at all times while the Bonds are outstanding the Issuer will provide a competent and legally qualified bank, trust company, financial institution, or other entity to act as and perform the services of Paying Agent /Registrar for the Bonds under this Ordinance, and that the Paying Agent /Registrar will be a single entity. The Issuer reserves the right to, and may, at its option, change the Paying Agent /Registrar upon not less than 120 days written notice to the Paying Agent /Registrar, to be effective not later than 60 days prior to the next principal or interest payment date after such notice. In the event that the entity at any time acting as Paying Agent /Registrar (or its successor by merger, acquisition, or other method) should resign or otherwise cease to act as such, the Issuer covenants that promptly it will appoint a competent and legally qualified bank, trust company, financial institution, or other agency to act as Paying Agent /Registrar under this Ordinance. Upon any change in the Paying Agent /Registrar, the previous Paying Agent /Registrar promptly shall transfer and deliver the Registration Books (or a copy thereof), along with all other pertinent books and records relating to the Bonds, to the new Paying Agent /Registrar designated and appointed by the Issuer. Upon any change in the Paying Agent /Registrar, the Issuer promptly will cause a written notice thereof to be sent by the new Paying Agent /Registrar to each Registered Owner of the Bonds, by United States mail, first -class postage prepaid, which notice also shall give the address of the new Paying Agent /Registrar. By accepting the position and performing as such, each Paying Agent /Registrar shall be deemed to have agreed to the provisions of this Ordinance, and a certified copy of this Ordinance shall be delivered to each Paying Agent /Registrar. (e) Authentication. Except as provided below, no Bond shall be valid or obligatory for any purpose or be entitled to any security or benefit of this Ordinance unless and until there appears thereon the Paying Agent /Registrar's Authentication Certificate substantially in the form provided in this Ordinance, duly authenticated by manual execution of the Paying Agent /Registrar. It shall not be required that the same authorized representative of the Paying Agent /Registrar sign the Paying Agent /Registrar's Authentication Certificate on all of the Bonds. In lieu of the executed Paying Agent /Registrar's Authentication Certificate described above, the Initial Bond delivered on the closing date shall have attached thereto the Comptroller's Registration Certificate substantially in the form provided in this Ordinance, manually executed by the Comptroller or by her duly authorized agent, which certificate shall be evidence that the Initial Bond has been duly approved by the Attorney General and that it is a valid and binding obligation of the Issuer, and has been registered by the Comptroller. (f) Book - Entry -Only System. The Bonds issued in exchange for the Initial Bond shall be initially issued in the form of a separate single fully registered Bond for each of the maturities thereof. Upon initial issuance, the ownership of each such Bond shall be registered in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York ( "DTC "), and Page 7 s:A1ega1 \0ur documents \ordinances \15 \ordinance 7 -25 -15 (with $10nim).docx except as provided in subsection (g) hereof, all of the outstanding Bonds shall be registered in the name of Cede & Co., as nominee of DTC. With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the Issuer and the Paying Agent /Registrar shall have no responsibility or obligation to any securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations on whose behalf DTC was created ( "DTC Participant ") to hold securities to facilitate the clearance and settlement of securities transactions among DTC Participants or to any person on behalf of whom such a DTC Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, the Issuer and the Paying Agent /Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC Participant or any other person, other than a Registered Owner of Bonds, as shown on the Registration Books, of any notice with respect to the Bonds, or (iii) the payment to any DTC Participant or any other person, other than a Registered Owner of Bonds, as shown in the Registration Books of any amount with respect to principal of or interest on the Bonds. Notwithstanding any other provision of this Ordinance to the contrary, the Issuer and the Paying Agent /Registrar shall be entitled to treat and consider the person in whose name each Bond is registered in the Registration Books as the absolute owner of such Bond for the purpose of payment of principal and interest with respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for all other purposes whatsoever. The Paying Agent /Registrar shall pay all principal of and interest on the Bonds only to or upon the order of the Registered Owners, as shown in the Registration Books as provided in this Ordinance, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the Issuer's obligations with respect to payment of principal of and interest on the Bonds to the extent of the sum or sums so paid. No person other than a Registered Owner, as shown in the Registration Books, shall receive a Bond evidencing the obligation of the Issuer to make payments of principal and interest pursuant to this Ordinance. Upon delivery by DTC to the Paying Agent /Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions in this Ordinance with respect to interest checks being mailed to the Registered Owner at the close of business on the Record Date, the words "Cede & Co. " in this Ordinance shall refer to such new nominee of DTC. The previous execution and delivery of the Blanket Issuer Letter of Representations with respect to obligations of the Issuer is hereby ratified and confirmed; and the provisions thereof shall be fully applicable to the Bonds. (g) Successor Securities Depository; Transfers Outside Book - Entry -Only System. In the event that the Issuer determines that DTC is incapable of discharging its responsibilities described herein and in the Blanket Issuer Letter of Representations to DTC or that it is in the best interest of the beneficial owners of the Bonds that they be able to obtain certificated Bonds, the Issuer shall (i) appoint a successor securities depository, qualified to act as such under Section 17A of the Securities and Exchange Act of 1934, as amended, notify DTC and DTC Participants of the appointment of such successor securities depository and transfer one or more separate Bonds to such successor securities depository or (ii) notify DTC and DTC Participants of the availability through DTC of Bonds and transfer one or more separate certificated Bonds to DTC Participants s: \1ega1 \0ur d0cuments \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx having Bonds credited to their DTC accounts. In such event, the Bonds shall no longer be restricted to being registered in the Registration Books in the name of Cede & Co., as nominee of DTC, but may be registered in the name of the successor securities depository, or its nominee, or in whatever name or names Registered Owners transferring or exchanging Bonds shall designate, in accordance with the provisions of this Ordinance. (h) Payments to Cede & Co. Notwithstanding any other provision of this Ordinance to the contrary, so long as any Bond is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of and interest on such Bond and all notices with respect to such Bond shall be made and given, respectively, in the manner provided in the Blanket Issuer Letter of Representations to DTC. (i) Cancellation of Initial Bond. On the closing date, the Initial Bond, representing the entire principal amount of the Bonds, payable in stated installments to the purchaser designated in Section 10 or its designee, executed by manual or facsimile signature of the Mayor and City Secretary of the Issuer, approved by the Attorney General, and registered and manually signed by the Comptroller, will be delivered to such purchaser or its designee. Upon payment for the Initial Bond, the Paying Agent /Registrar shall cancel the Initial Bond and deliver to DTC on behalf of such purchaser one registered definitive Bond for each year of maturity of the Bonds, in the aggregate principal amount of all of the Bonds for such maturity. To the extent that the Paying Agent /Registrar is eligible to participate in DTC's FAST System, pursuant to an agreement between the Paying Agent /Registrar and DTC, the Paying Agent /Registrar shall hold the definitive Bonds in safekeeping for DTC. 0) Conditional Notice of Redemption. With respect to any optional redemption of the Bonds, unless the prerequisites to such redemption required by this Ordinance have been met and moneys sufficient to pay the principal of and premium, if any, and interest on the Bonds to be redeemed shall have been received by the Paying Agent /Registrar prior to the giving of such notice of redemption, such notice shall state that said redemption may, at the option of the Issuer, be conditional upon the satisfaction of such prerequisites and receipt of such moneys by the Paying Agent /Registrar on or prior to the date fixed for such redemption, or upon any prerequisite set forth in such notice of redemption. If a conditional notice of redemption is given and such prerequisites to the redemption and sufficient moneys are not received, such notice shall be of no force and effect, the Issuer shall not redeem such Bonds and the Paying Agent /Registrar shall give notice, in the manner in which the notice of redemption was given, to the effect that the Bonds have not been redeemed. SECTION 4. FORM OF BONDS. The form of the Bonds, including the form of Paying Agent /Registrar's Authentication Certificate, the form of Assignment and the form of Comptroller's Registration Certificate to be attached to the Bonds initially issued and delivered pursuant to this Ordinance, shall be, respectively, substantially as follows, with such appropriate variations, omissions or insertions as are permitted or required by this Ordinance, and with the Form of Bond to be modified pursuant to, and completed with information set forth in, the Pricing Certificate. Page 9 sAlegal\our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx (a) [Form of Bond] NO. R- Interest Rate REGISTERED OWNER: PRINCIPAL AMOUNT: UNITED STATES OF AMERICA PRINCIPAL STATE OF TEXAS AMOUNT CITY OF DENTON $ GENERAL OBLIGATION REFUNDING BOND SERIES 2015 Dated Date Maturity Date CUSIP No. 20 February 15, DOLLARS ON THE MATURITY DATE specified above, the City of Denton, in Denton County, Texas (the "Issuer "), being a political subdivision and municipal corporation of the State of Texas, hereby promises to pay to the Registered Owner specified above, or registered assigns (hereinafter called the "Registered Owner "), on the Maturity Date specified above, the Principal Amount specified above. The Issuer promises to pay interest on the unpaid principal amount hereof (calculated on the basis of a 360 -day year of twelve 30 -day months) from _, 2015 at the Interest Rate per annum specified above. Interest is payable on , 20 and semiannually on each and thereafter to the Maturity Date specified above, or the date of redemption prior to maturity; except, if this Bond is required to be authenticated and the date of its authentication is later than the first Record Date (hereinafter defined), such Principal Amount shall bear interest from the interest payment date next preceding the date of authentication, unless such date of authentication is after any Record Date but on or before the next following interest payment date, in which case such principal amount shall bear interest from such next following interest payment date; provided, however, that if on the date of authentication hereof the interest on the Bond or Bonds, if any, for which this Bond is being exchanged is due but has not been paid, then this Bond shall bear interest from the date to which such interest has been paid in full. THE PRINCIPAL OF AND INTEREST ON this Bond are payable in lawful money of the United States of America, without exchange or collection charges. The principal of this Bond shall be paid to the Registered Owner hereof upon presentation and surrender of this Bond at maturity, or upon the date fixed for its redemption prior to maturity, at the principal corporate trust office of The Bank of New York Mellon Trust Company, National Association, Dallas, Texas, which is the "Paying Agent /Registrar" for this Bond. The payment of interest on this Bond shall be made by the Paying Agent /Registrar to the Registered Owner hereof on each interest payment date by check or draft, dated as of such interest payment date, drawn by the Paying Agent /Registrar on, and payable solely from, funds of the Issuer required by the ordinance authorizing the issuance of this Page 10 s:Alegal\ our documents \ordinances \15 \ordinance 7 -25 -15 (with $1Omm).docx Bond (the "Bond Ordinance ") to be on deposit with the Paying Agent /Registrar for such purpose as hereinafter provided; and such check or draft shall be sent by the Paying Agent /Registrar by United States mail, first -class postage prepaid, on each such interest payment date, to the Registered Owner hereof, at its address as it appeared on the last business day of the month preceding each such date (the "Record Date ") on the Registration Books kept by the Paying Agent /Registrar, as hereinafter described. In addition, interest may be paid by such other method, acceptable to the Paying Agent /Registrar, requested by, and at the risk and expense of, the Registered Owner. In the event of a non - payment of interest on a scheduled payment date, and for 30 days thereafter, a new record date for such interest payment (a "Special Record Date ") will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the Issuer. Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be 15 days after the Special Record Date) shall be sent at least five business days prior to the Special Record Date by United States mail, first -class postage prepaid, to the address of each Registered Owner of a Bond appearing on the Registration Books at the close of business on the last business day next preceding the date of mailing of such notice. ANY ACCRUED INTEREST due at maturity or upon the redemption of this Bond prior to maturity as provided herein shall be paid to the Registered Owner upon presentation and surrender of this Bond for redemption and payment at the principal corporate trust office of the Paying Agent/Registrar. The Issuer covenants with the Registered Owner of this Bond that on or before each principal payment date, interest payment date, and accrued interest payment date for this Bond it will make available to the Paying Agent /Registrar, from the "Interest and Sinking Fund' created by the Bond Ordinance, the amounts required to provide for the payment, in immediately available funds, of all principal of and interest on the Bonds, when due. IF THE DATE for the payment of the principal of or interest on this Bond shall be a Saturday, Sunday, a legal holiday or a day on which banking institutions in the city where the principal corporate trust office of the Paying Agent /Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day that is not such a Saturday, Sunday, legal holiday or day on which banking institutions are authorized to close; and payment on such date shall have the same force and effect as if made on the original date payment was due. THIS BOND is one of a series of Bonds dated [ _, 2015], authorized in accordance with the Constitution and laws of the State of Texas in the principal amount of [$ ] for the public purpose of refunding the Refunded Bonds and the Refunded TMPA Obligations and to pay the costs associated with the issuance of the Bonds. ON , 20_, or on any date thereafter, the Bonds of this series may be redeemed prior to their scheduled maturities, at the option of the Issuer, with funds derived from any available and lawful source, as a whole, or in part, and, if in part, the particular Bonds, or portions thereof, to be redeemed shall be selected and designated by the Issuer (provided that a portion of a Bond may be redeemed only in an integral multiple of $5,000), at a redemption price equal to the principal amount to be redeemed plus accrued interest to the date fixed for redemption. Page 11 sAlegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mni).docx [THE BONDS scheduled to mature on in the years and ( the "Term Bonds ") are subject to scheduled mandatory redemption by the Paying Agent /Registrar by lot, or by any other customary method that results in a random selection, at a price equal to the principal amount thereof, plus accrued interest to the redemption date, out of moneys available for such purpose in the interest and sinking fund for the Bonds, on the dates and in the respective principal amounts, set forth in the following schedule: Term Bond Term Bond Maturity: February 15, 20_ Maturity: February 15,20_ Principal Principal Mandatory Redemption Amount Mandatory Redemption Amount Date Date February 15,20 $ February 15,20 $ February 15,20 February 15,20 February 15,20_ February 15,20_ February 15,20 (maturity) February 15,20 (maturity) The principal amount of Term Bonds of a stated maturity required to be redeemed on any mandatory redemption date pursuant to the operation of the mandatory sinking fund redemption provisions shall be reduced, at the option of the Issuer, by the principal amount of any Term Bonds of the same maturity which, at least 50 days prior to a mandatory redemption date (1) shall have been acquired by the Issuer at a price not exceeding the principal amount of such Term Bonds plus accrued interest to the date of purchase thereof, and delivered to the Paying Agent /Registrar for cancellation, (2) shall have been purchased and canceled by the Paying Agent /Registrar at the request of the Issuer at a price not exceeding the principal amount of such Term Bonds plus accrued interest to the date of purchase, or (3) shall have been redeemed pursuant to the optional redemption provisions and not theretofore credited against a mandatory redemption requirement.] AT LEAST 30 days prior to the date fixed for any redemption of Bonds or portions thereof prior to maturity a written notice of such redemption shall be sent by the Paying Agent /Registrar by United States mail, first -class postage prepaid, to the Registered Owner of each Bond to be redeemed at its address as it appeared on the 45th day prior to such redemption date; provided, however, that the failure of the Registered Owner to receive such notice, or any defect therein or in the sending or mailing thereof, shall not affect the validity or effectiveness of the proceedings for the redemption of any Bond. By the date fixed for any such redemption due provision shall be made with the Paying Agent /Registrar for the payment of the required redemption price for the Bonds or portions thereof that are to be so redeemed. If such written notice of redemption is sent and if due provision for such payment is made, all as provided above, the Bonds or portions thereof that are to be so redeemed thereby automatically shall be treated as redeemed prior to their scheduled maturities, and they shall not bear interest after the date fixed for redemption, and they shall not be regarded as being outstanding except for the right of the Registered Owner to receive the redemption price from the Paying Agent /Registrar out of the funds provided for such payment. If a portion of any Bond shall be redeemed, a substitute Bond or Bonds having the same maturity date, bearing interest at the same rate, in any denomination or denominations in any integral Page 12 sAlega1\our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx multiple of $5,000, at the written request of the Registered Owner, and in aggregate principal amount equal to the unredeemed portion thereof, will be issued to the Registered Owner upon the surrender thereof for cancellation, at the expense of the Issuer, all as provided in the Bond Ordinance. IF AT THE TIME OF MAILING of notice of optional redemption there shall not have either been deposited with the Paying Agent /Registrar or legally authorized escrow agent immediately available funds sufficient to redeem all the Bonds called for redemption, such notice may state that it is conditional, and is subject to the deposit of the redemption moneys with the Paying Agent /Registrar or legally authorized escrow agent at or prior to the redemption date or any prerequisite set forth in such notice of redemption. If such redemption is not effectuated, the Paying Agent /Registrar shall, within five days thereafter, give notice in the manner in which the notice of redemption was given that such moneys were not so received or such prerequisites were not met and shall rescind the redemption. ALL BONDS OF THIS SERIES are issuable solely as fully registered bonds, without interest coupons, in the denomination of any integral multiple of $5,000. As provided in the Bond Ordinance, this Bond may, at the request of the Registered Owner or the assignee or assignees hereof, be assigned, transferred, converted into and exchanged for a like aggregate principal amount of fully registered Bonds, without interest coupons, payable to the appropriate Registered Owner, assignee or assignees, as the case may be, having the same denomination or denominations in any integral multiple of $5,000 as requested in writing by the appropriate Registered Owner, assignee or assignees, as the case may be, upon surrender of this Bond to the Paying Agent /Registrar for cancellation, all in accordance with the form and procedures set forth in the Bond Ordinance. Among other requirements for such assignment and transfer, this Bond must be presented and surrendered to the Paying Agent /Registrar, together with proper instruments of assignment, in form and with guarantee of signatures satisfactory to the Paying Agent /Registrar, evidencing assignment of this Bond or any portion or portions hereof in any integral multiple of $5,000 to the assignee or assignees in whose name or names this Bond or any such portion or portions hereof is or are to be registered. The Form of Assignment printed or endorsed on this Bond may be executed by the Registered Owner to evidence the assignment hereof, but such method is not exclusive, and other instruments of assignment satisfactory to the Paying Agent /Registrar may be used to evidence the assignment of this Bond or any portion or portions hereof from time to time by the Registered Owner. The Paying Agent /Registrar's reasonable standard or customary fees and charges for assigning, transferring, converting and exchanging any Bond or portion thereof will be paid by the Issuer. In any circumstance, any taxes or governmental charges required to be paid with respect thereto shall be paid by the one requesting such assignment, transfer, conversion or exchange, as a condition precedent to the exercise of such privilege. The Paying Agent /Registrar shall not be required to make any such transfer, conversion, or exchange (i) during the period commencing with the close of business on any Record Date and ending with the opening of business on the next following principal or interest payment date, or (ii) with respect to any Bond or any portion thereof called for redemption prior to maturity, within 45 days prior to its redemption date. IN THE EVENT any Paying Agent/Registrar for the Bonds is changed by the Issuer, resigns, or otherwise ceases to act as such, the Issuer has covenanted in the Bond Ordinance that Page 13 s: \legal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx it promptly will appoint a competent and legally qualified substitute therefor, and cause written notice thereof to be mailed to the Registered Owners of the Bonds. IT IS HEREBY certified, recited and covenanted that this Bond has been duly and validly authorized, issued and delivered; that all acts, conditions and things required or proper to be performed, exist and be done precedent to or in the authorization, issuance and delivery of this Bond have been performed, existed and been done in accordance with law; and that annual ad valorem taxes sufficient to provide for the payment of the interest on and principal of this Bond, as such interest comes due and such principal matures, have been levied and ordered to be levied against all taxable property in said Issuer, and have been pledged for such payment, within the limit prescribed by law. THE ISSUER HAS RESERVED THE RIGHT to amend the Bond Ordinance as provided therein, and under some (but not all) circumstances amendments thereto must be approved by the Registered Owners of a majority in aggregate principal amount of the outstanding Bonds. BY BECOMING the Registered Owner of this Bond, the Registered Owner thereby acknowledges all of the terms and provisions of the Bond Ordinance, agrees to be bound by such terms and provisions, acknowledges that the Bond Ordinance is duly recorded and available for inspection in the official minutes and records of the governing body of the Issuer, and agrees that the terms and provisions of this Bond and the Bond Ordinance constitute a contract between each Registered Owner hereof and the Issuer. IN WITNESS WHEREOF, the Issuer has caused this Bond to be signed with the manual or facsimile signature of the Mayor of the Issuer (or in the Mayor's absence, of the Mayor Pro -Tem) and countersigned with the manual or facsimile signature of the City Secretary of said Issuer, and has caused the official seal of the Issuer to be duly impressed, or placed in facsimile, on this Bond. (signature) _signature) City Secretary Mayor (SEAL) [INSERT BOND INSURANCE LEGEND, IF ANY] Page 14 s:Alegal\ our documents \ordinances\I5 \ordinance 7 -25 -15 (with $10m i).doca (b) [Form of Paying Agent /Registrar's Authentication Certificate] PAYING AGENT /REGISTRAR'S AUTHENTICATION CERTIFICATE (To be executed if this Bond is not accompanied by an executed Comptroller's Registration Certificate) It is hereby certified that this Bond has been issued under the provisions of the Bond Ordinance described in the text of this Bond; and that this Bond has been issued in conversion or replacement of, or in exchange for, a bond, bonds, or a portion of a bond or bonds of a series that originally was approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts of the State of Texas. Dated: (c) [Form of Assignment] The Bank of New York Mellon Trust Company, National Association, Dallas, Texas Paying Agent /Registrar Bv: Authorized Representative ASSIGNMENT For value received, the undersigned hereby sells, assigns and transfers unto Please insert Social Security or Taxpayer Identification Number of Transferee (Please print or typewrite name and address, including zip code, of Transferee.) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints , attorney, to register the transfer of the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: Page 15 sAlegal \our documents \ordinances \15 \ordinance 7 -25 -I5 (with $1 Onim).docx NOTICE: Signature(s) must be guaranteed by an eligible guarantor institution participating in a securities transfer association recognized signature guarantee NOTICE: The signature above must correspond with the name of the Registered Owner as it appears upon the front of this bond in every particular, without alteration or program. enlargement or any change whatsoever. (d) [Form of Comptroller's Registration Certificate] COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO. I hereby certify that this Bond has been examined, certified as to validity and approved by the Attorney General of the State of Texas, and that this Bond has been registered by the Comptroller of Public Accounts of the State of Texas. Witness my signature and seal this Comptroller of Public Accounts of the State of Texas (COMPTROLLER'S SEAL) (e) [Initial Bond Insertions] (i) The Initial Bond shall be in the form set forth in paragraph (a) of this Section, except that: A. immediately under the name of the Bond, the headings "Interest Rate" and "Maturity Date" shall both be completed with the words "As shown below" and "CUSIP No. " shall be deleted. B. the first paragraph shall be deleted and the following will be inserted: "THE CITY OF DENTON, TEXAS, in Denton County, Texas (the "Issuer "), being a political subdivision and municipal corporation of the State of Texas, hereby promises to pay to the Registered Owner specified above, or registered assigns (hereinafter called the "Registered Owner "), on February 15 in each of the years, in the principal installments and bearing interest at the per annum rates set forth in the following schedule: Years Principal Amounts Interest Rates (Information from Pricing Certificate to be inserted) The Issuer promises to pay interest on the unpaid principal amount hereof (calculated on the basis of a 360 -day year of twelve 30 -day months) from , 2015 at the respective Interest Rate Page 16 Olegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10nvn).doex per annum specified above. Interest is payable on _, 20_, and semiannually on each and thereafter to the date of payment of the principal installment specified above, or the date of redemption prior to maturity; except, that if this Bond is required to be authenticated and the date of its authentication is later than the first Record Date (hereinafter defined), such Principal Amount shall bear interest from the interest payment date next preceding the date of authentication, unless such date of authentication is after any Record Date but on or before the next following interest payment date, in which case such principal amount shall bear interest from such next following interest payment date; provided, however, that if on the date of authentication hereof the interest on the Bond or Bonds, if any, for which this Bond is being exchanged is due but has not been paid, then this Bond shall bear interest from the date to which such interest has been paid in full." C. The Initial Bond shall be numbered "T-1." Page 17 Olegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $lOnun).doex SECTION 5. INTEREST AND SINKING FUND. (a) A special Interest and Sinking Fund (the "Interest and Sinking Fund") is hereby created solely for the benefit of the Bonds, and the Interest and Sinking Fund shall be established and maintained by the Issuer at an official depository bank of the Issuer. The Interest and Sinking Fund shall be kept separate and apart from all other funds and accounts of the Issuer, and shall be used only for paying the interest on and principal of the Bonds. All ad valorem taxes levied and collected for and on account of the Bonds, together with any accrued interest received upon sale of the Bonds, shall be deposited, as collected, to the credit of the Interest and Sinking Fund. During each year while any of the Bonds or interest thereon are outstanding and unpaid, the governing body of the Issuer shall compute and ascertain a rate and amount of ad valorem tax which will be sufficient to raise and produce the money required to pay the interest on the Bonds as such interest becomes due, and to provide and maintain a sinking fund adequate to pay the principal of its Bonds as such principal matures or is scheduled for redemption (but never less than 2% of the original principal amount of the Bonds as a sinking fund each year). Said tax shall be based on the latest approval tax rolls of the Issuer, with full allowance being made for tax delinquencies and the cost of tax collection. Said rate and amount of ad valorem tax is hereby levied, and is hereby ordered to be levied, against all taxable property in the Issuer for each year while any of the Bonds or interest thereon are outstanding and unpaid; and said tax shall be assessed and collected each such year and deposited to the credit of the aforesaid Interest and Sinking Fund. Said ad valorem taxes sufficient to provide for the payment of the interest on and principal of the Bonds, as such interest comes due and such principal matures or is scheduled for redemption, are hereby pledged for such payment, within the limit prescribed by law. Notwithstanding the requirements of this Section, if Surplus Revenues or other lawfully available moneys of the Issuer are actually on deposit or budgeted and appropriated to be deposited in the Interest and Sinking Fund in advance of the time when ad valorem taxes are scheduled to be levied for any year, then the amount of taxes that otherwise would have been required to be levied pursuant to this Section may be reduced to the extent and by the amount of the Surplus Revenues or other lawfully available funds then on deposit or budgeted and appropriated to be deposited in the Interest and Sinking Fund. For purposes of this Section, "Surplus Revenues" means revenues derived by the Issuer from the ownership and operation of the Issuer's Utility System (consisting of its combined waterworks system, sanitary sewer system, and electric light and power system) that remain after the payment of all maintenance and operation expenses thereof, and all debt service, reserve and other requirements in connection with all of the Issuer's revenue obligations (now or hereafter outstanding) or contractual obligations (now or hereafter existing) which are payable from all or any part of the net revenues of the Issuer's Utility System. If Surplus Revenues are budgeted and appropriated for deposit into the Interest and Sinking Fund, the Issuer: (i) shall transfer and deposit in the Interest and Sinking Fund each month an amount of not less than 1 /12th of the annual debt service on the Bonds to be paid from Surplus Revenues until the amount on deposit in the Interest and Sinking Fund equals the amount required for annual debt service on the Bonds; (ii) shall establish, adopt and maintain an annual budget that provides for either the monthly deposit of sufficient Surplus Revenues and /or tax revenues, the monthly deposit of any other legally available funds on hand at the time of the adoption of the Page 18 sAlegal\our documents \ordinances \15 \ordinance 7 -25 -15 (with $1 Omm)_docx annual budget, or a combination thereof, into the Interest and Sinking Fund for the repayment of the Bonds; and (iii) shall at all times maintain and collect sufficient Utility System rates and charges in conjunction with any other legally available funds that, after payment of the costs of operating and maintaining the Utility System, produce revenues in an amount not less than the debt service requirements of all outstanding Utility System revenue bonds of the Issuer and other obligations of the Issuer which are secured in whole or in part by a pledge of revenues of the Utility System and for which the Issuer is budgeting the repayment of such obligations from the revenues of the Utility System, or the Issuer shall provide documentation which evidences the levy of an ad valorem tax rate dedicated to the Interest and Sinking Fund, in conjunction with any other legally available funds except Utility System rates and charges, sufficient for the repayment of Utility System debt service requirements. (b) Chapter 1208, Texas Government Code, applies to the issuance of the Bonds and the pledge of the taxes granted by the Issuer under this Section and Section 9, respectively, and is therefore valid, effective, and perfected. Should Texas law be amended at any time while the Bonds are outstanding and unpaid, the result of such amendment being that the pledge of the taxes granted by the Issuer under this Section is to be subject to the filing requirements of Chapter 9, Texas Business & Commerce Code, in order to preserve to the Registered Owners of the Bonds a security interest in said pledge, the Issuer agrees to take such measures as it determines are reasonable and necessary under Texas law to comply with the applicable provisions of Chapter 9, Texas Business & Commerce Code and enable a filing of a security interest in said pledge to occur. SECTION 6. DEFEASANCE OF BONDS. (a) Any Bond and the interest thereon shall be deemed to be paid, retired and no longer outstanding (a "Defeased Bond') within the meaning of this Ordinance, except to the extent provided in subsection (d) of this Section, when payment of the principal of such Bond, plus interest thereon to the due date (whether such due date be by reason of maturity or otherwise) either (i) shall have been made or caused to be made in accordance with the terms thereof, or (ii) shall have been provided for on or before such due date by irrevocably depositing with or making available to the Paying Agent /Registrar in accordance with an escrow agreement or other instrument (the "Future Escrow Agreement ") for such payment (1) lawful money of the United States of America sufficient to make such payment or (2) Government Obligations that mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money to provide for such payment, and when proper arrangements have been made by the Issuer with the Paying Agent /Registrar for the payment of its services until all Defeased Bonds shall have become due and payable. At such time as a Bond shall be deemed to be a Defeased Bond hereunder, as aforesaid, such Bond and the interest thereon shall no longer be secured by, payable from, or entitled to the benefits of, the ad valorem taxes herein levied and pledged as provided in this Ordinance, and such principal and interest shall be payable solely from such money or Government Obligations. Notwithstanding any other provision of this Ordinance to the contrary, it is hereby provided that any determination not to redeem Defeased Bonds that is made in conjunction with the payment arrangements specified in Subsection (a)(i) or (ii) of this Page 19 sAlegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10nun).doex Section shall not be irrevocable, provided that: (1) in the proceedings providing for such payment arrangements, the Issuer expressly reserves the right to call the Defeased Bonds for redemption; (2) gives notice of the reservation of that right to the Registered Owners of the Defeased Bonds immediately following the making of the payment arrangements; and (3) directs that notice of the reservation be included in any redemption notices that it authorizes. (b) Any moneys so deposited with the Paying Agent /Registrar may at the written direction of the Issuer be invested in Government Obligations, maturing in the amounts and times as hereinbefore set forth, and all income from such Government Obligations received by the Paying Agent /Registrar that is not required for the payment of the Bonds and interest thereon, with respect to which such money has been so deposited, shall be turned over to the Issuer, or deposited as directed in writing by the Issuer. Any Future Escrow Agreement pursuant to which the money and /or Government Obligations are held for the payment of Defeased Bonds may contain provisions permitting the investment or reinvestment of such moneys in Government Obligations or the substitution of other Government Obligations upon the satisfaction of the requirements specified in Subsection (a)(i) or (ii) of this Section. All income from such Government Obligations received by the Paying Agent /Registrar which is not required for the payment of the Defeased Bonds, with respect to which such money has been so deposited, shall be remitted to the Issuer or deposited as directed in writing by the Issuer. (c) The term "Government Obligations" means any securities and obligations now or hereafter authorized by state law that are eligible to discharge obligations such as the Bonds, including (i) direct, noncallable obligations of the United States of America, including obligations that are unconditionally guaranteed by the United States of America, (ii) noncallable obligations of an agency or instrumentality of the United States of America, including obligations that are unconditionally guaranteed or insured by the agency or instrumentality and that, on the date the governing body of the Issuer adopts or approves the proceedings authorizing the financial arrangements, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent, and (iii) noncallable obligations of a state or an agency or a county, municipality, or other political subdivision of a state that have been refunded and that, on the date the governing body of the Issuer adopts or approves the proceedings authorizing the financial arrangements, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent. (d) Until all Defeased Bonds shall have become due and payable, the Paying Agent /Registrar shall perform the services of Paying Agent /Registrar for such Defeased Bonds the same as if they had not been defeased, and the Issuer shall make proper arrangements to provide and pay for such services as required by this Ordinance. (e) In the event that the Issuer elects to defease less than all of the principal amount of Bonds of a maturity, the Paying Agent /Registrar shall select, or cause to be selected, such amount of Bonds by such random method as it deems fair and appropriate. Page 20 sAlegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx SECTION 7. DAMAGED, MUTILATED, LOST, STOLEN, OR DESTROYED BONDS. (a) Replacement Bonds. In the event any outstanding Bond is damaged, mutilated, lost, stolen or destroyed, the Paying Agent /Registrar shall cause to be printed, executed and delivered, a new Bond of the same principal amount, maturity and interest rate, as the damaged, mutilated, lost,.stolen or destroyed Bond, in replacement for such Bond in the manner hereinafter provided. (b) Application for Replacement Bonds. Application for replacement of damaged, mutilated, lost, stolen or destroyed Bonds shall be made by the Registered Owner thereof to the Paying Agent /Registrar. In every case of loss, theft or destruction of a Bond, the Registered Owner applying for a replacement Bond shall furnish to the Issuer and to the Paying Agent /Registrar such security or indemnity as may be required by them to save each of them harmless from any loss or damage with respect thereto. Also, in every case of loss, theft or destruction of a Bond, the Registered Owner shall furnish to the Issuer and to the Paying Agent /Registrar evidence to their satisfaction of the loss, theft or destruction of such Bond, as the case may be. In every case of damage or mutilation of a Bond, the Registered Owner shall surrender to the Paying Agent /Registrar for cancellation the Bond so damaged or mutilated. (c) No Default Occurred. Notwithstanding the foregoing provisions of this Ordinance, in the event any such Bond shall have matured, and no default has occurred that is then continuing in the payment of the principal of, redemption premium, if any, or interest on the Bond, the Issuer may authorize the payment of the same (without surrender thereof except in the case of a damaged or mutilated Bond) instead of issuing a replacement Bond, provided security or indemnity is furnished as above provided in this Section. (d) Charge for Issuing Replacement Bonds. Prior to the issuance of any replacement Bond, the Paying Agent /Registrar shall charge the Registered Owner of such Bond with all legal, printing, and other expenses in connection therewith. Every replacement Bond issued pursuant to the provisions of this Section by virtue of the fact that any Bond is lost, stolen or destroyed shall constitute a contractual obligation of the Issuer whether or not the lost, stolen or destroyed Bond shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Ordinance equally and proportionately with any and all other Bonds duly issued under this Ordinance. (e) Authority for Issuing Replacement Bonds. In accordance with Sec. 1206.022, Government Code, this Section 7 of this Ordinance shall constitute authority for the issuance of any such replacement Bond without necessity of further action by the governing body of the Issuer or any other body or person, and the duty of the replacement of such Bonds is hereby authorized and imposed upon the Paying Agent /Registrar, and the Paying Agent /Registrar shall authenticate and deliver such Bonds in the form and manner and with the effect, as provided in Section 3(a) of this Ordinance for Bonds issued in conversion and exchange for other Bonds. SECTION 8. CUSTODY, APPROVAL, AND REGISTRATION OF BONDS; BOND COUNSEL'S OPINION; CUSIP NUMBERS AND CONTINGENT INSURANCE PROVISION, IF OBTAINED; ENGAGEMENT OF BOND COUNSEL. Page 21 sAlegahour documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx (a) The Mayor of the Issuer is hereby authorized to have control of the Initial Bond and all necessary records and proceedings pertaining to the Bonds pending its delivery and its investigation, examination, and approval by the Attorney General, and its registration by the Comptroller. Upon registration of the Initial Bond said Comptroller (or a deputy designated in writing to act for said Comptroller) shall manually sign the Comptroller's Registration Certificate attached to such Bond, and the seal of said Comptroller shall be impressed, or placed in facsimile, on such Bond. The approving legal opinion of the Issuer's Bond Counsel and the assigned CUSIP numbers may, at the option of the Issuer, be printed on the Bonds issued and delivered under this Ordinance, but neither shall have any legal effect, and shall be solely for the convenience and information of the Registered Owners of the Bonds. In addition, if bond insurance is obtained, the Bonds may bear an appropriate legend as provided by the insurer. (b) The obligation of the Purchaser to accept delivery of the Bonds is subject to the Purchaser being furnished with the final, approving opinion of McCall, Parkhurst & Horton L.L.P., bond counsel to the Issuer, which opinion shall be dated as of and delivered on the date of initial delivery of the Bonds to the Purchaser. The engagement of such firm as bond counsel to the Issuer in connection with the issuance, sale and delivery of the Bonds is hereby approved and confirmed. The execution and delivery of an engagement letter between the Issuer and such firm, with respect to such services as bond counsel, is hereby authorized in such form as may be approved by the Mayor, and the Mayor is hereby authorized to execute such engagement letter. SECTION 9. COVENANTS REGARDING TAX EXEMPTION OF INTEREST ON THE BONDS. (a) Covenants. The Issuer covenants to take any action necessary to assure, or refrain from any action that would adversely affect, the treatment of the Bonds as obligations described in section 103 of the Internal Revenue Code of 1986, as amended (the "Code "), the interest on which is not includable in the "gross income" of the holder for purposes of federal income taxation. In furtherance thereof, the Issuer covenants as follows: (1) to take any action to assure that no more than 10 percent of the proceeds of the Bonds (less amounts deposited to a reserve fund, if any) are used for any "private business use," as defined in section 141(b)(6) of the Code or, if more than 10 percent of the proceeds or the projects financed or refinanced therewith are so used, such amounts, whether or not received by the Issuer, with respect to such private business use, do not, under the terms of this Ordinance or any underlying arrangement, directly or indirectly, secure or provide for the payment of more than 10 percent of the debt service on the Bonds, in contravention of section 141(b)(2) of the Code; (2) to take any action to assure that in the event that the "private business use" described in subsection (1) hereof exceeds 5 percent of the proceeds of the Bonds or the projects financed therewith (less amounts deposited into a reserve fund, if any) then the amount in excess of 5 percent is used for a "private business use" that is "related" and not "disproportionate," within the meaning of section 141(b)(3) of the Code, to the governmental use; Page 22 Olegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx (3) to take any action to assure that no amount that is greater than the lesser of $5,000,000, or 5 percent of the proceeds of the Bonds (less amounts deposited into a reserve fund, if any) is directly or indirectly used to finance loans to persons, other than state or local governmental units, in contravention of section 141(c) of the Code; (4) to refrain from taking any action that would otherwise result in the Bonds being treated as "private activity bonds" within the meaning of section 141(b) of the Code; (5) to refrain from taking any action that would result in the Bonds being 'federally guaranteed" within the meaning of section 149(b) of the Code; (6) to refrain from using any portion of the proceeds of the Bonds, directly or indirectly, to acquire or to replace funds that were used, directly or indirectly, to acquire investment property (as defined in section 148(b)(2) of the Code) that produces a materially higher yield over the term of the Bonds, other than investment property acquired with: (A) proceeds of the Bonds invested for a reasonable temporary period of 3 years or less or, in the case of a refunding bond, for a period of 30 days or less until such proceeds are needed for the purpose for which the bonds are issued, (B) amounts invested in a bona fide debt service fund, within the meaning of section 1.148 -1(b) of the rules and regulations of the United States Department of the Treasury ( "Treasury Regulations "), and (C) amounts deposited in any reasonably required reserve or replacement fund to the extent such amounts do not exceed 10 percent of the proceeds of the Bonds; (7) to otherwise restrict the use of the proceeds of the Bonds or amounts treated as proceeds of the Bonds, as may be necessary, so that the Bonds do not otherwise contravene the requirements of section 148 of the Code (relating to arbitrage) and, to the extent applicable, section 149(d) of the Code (relating to advance refundings); and (8) to pay to the United States of America at least once during each five -year period (beginning on the date of delivery of the Bonds) an amount that is at least equal to 90 percent of the "Excess Earnings," within the meaning of section 148(f) of the Code and to pay to the United States of America, not later than 60 days after the Bonds have been paid in full, 100 percent of the amount then required to be paid as a result of Excess Earnings under section 148(f) of the Code. (b) Rebate Fund. In order to facilitate compliance with the above covenant (a)(8), a "Rebate Fund" is hereby established by the Issuer for the sole benefit of the United States of America, and such Rebate Fund shall not be subject to the claim of any other person, including without limitation the Bondholders. The Rebate Fund is established for the additional purpose of compliance with section 148 of the Code. (c) Use of Proceeds. For purposes of the foregoing covenants (a)(1) and (a)(2), the Issuer Page 23 s:Alegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $IOnml).docx understands that the term "proceeds" includes "disposition proceeds" as defined in the Treasury Regulations and, in the case of refunding bonds, transferred proceeds (if any) and proceeds of the Refunded Bonds and Refunded TMPA Bonds expended prior to the date of issuance of the Bonds. It is the understanding of the Issuer that the covenants contained herein are intended to assure compliance with the Code and any regulations or rulings promulgated by the United States Department of the Treasury pursuant thereto. In the event that regulations or rulings are hereafter promulgated that modify or expand provisions of the Code, as applicable to the Bonds, the Issuer will not be required to comply with any covenant contained herein to the extent that such failure to comply, in the opinion of nationally recognized bond counsel, will not adversely affect the exemption from federal income taxation of interest on the Bonds under section 103 of the Code. In the event that regulations or rulings are hereafter promulgated that impose additional requirements applicable to the Bonds, the Issuer agrees to comply with the additional requirements to the extent necessary, in the opinion of nationally recognized bond counsel, to preserve the exemption from federal income taxation of interest on the Bonds under section 103 of the Code. In furtherance of such intention, the Issuer hereby authorizes and directs the Mayor or Pricing Officer to execute any documents, certificates or reports required by the Code and to snake such elections, on behalf of the Issuer, that may be permitted by the Code as are consistent with the purpose for the issuance of the Bonds. (d) Disposition of Projects. The Issuer covenants that the projects refinanced by the Bonds will not be sold or otherwise disposed in a transaction resulting in the receipt by the Issuer of cash or other compensation, unless the Issuer obtains an opinion of nationally- recognized bond counsel that such sale or other disposition will not adversely affect the tax - exempt status of the Bonds. For purposes of the foregoing, the portion of the property comprising personal property and disposed in the ordinary course shall not be treated as a transaction resulting in the receipt of cash or other compensation. For purposes hereof, the Issuer shall not be obligated to comply with this covenant if it obtains a legal opinion that such failure to comply will not adversely affect the excludability for federal income tax proposes from gross income of the interest. SECTION 10. SALE OF BONDS AND APPROVAL OF OFFICIAL STATEMENT; FURTHER PROCEDURES. (a) The Bonds shall be sold and delivered subject to the provisions of Section 1 and Section 2 hereof through a negotiated sale, competitive sale or private placement and pursuant to the terms and provisions of a purchase contract or a notice of sale and official bid form (in either case, the "Purchase Agreement "), the terms and provisions of which are to be determined by the Pricing Officer in accordance with Section 2 hereof, and in which the purchaser or purchasers of the Bonds (the "Purchaser ") shall be designated. The Pricing Officer is hereby authorized to execute and deliver the Purchase Agreement for and on behalf of the Issuer. The Bonds shall initially be registered in the name of the Purchaser or its designee. (b) The Issuer hereby approves the form and content of the draft preliminary official statement relating to the Bonds and any addenda, supplement or amendment thereto, and approves the distribution of such preliminary official statement in the reoffering of the Bonds by the Purchaser in final form, with such changes therein or additions thereto as the Pricing Officer may deem advisable. The Pricing Officer is hereby authorized, in the name and on behalf of the Issuer, Page 24 sAlegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10nim).doex to approve, distribute, and deliver a final preliminary official statement and a final official statement relating to the Bonds to be used by the Purchaser in the marketing of the Bonds. (c) The Pricing Officer is authorized, in connection with effecting the sale of the Bonds, to obtain from a municipal bond insurance company so designated in the Pricing Certificate (the "Insurer') a municipal bond insurance policy (the "Insurance Policy ") in support of the Bonds. To that end, should the Pricing Officer exercise such authority and commit the Issuer to obtain a municipal bond insurance policy, for so long as the Insurance Policy is in effect, the requirements of the Insurer relating to the issuance of the Insurance Policy as set forth in the Pricing Certificate are incorporated by reference into this Ordinance and made a part hereof for all purposes, notwithstanding any other provision of this Ordinance to the contrary. The Pricing Officer shall have the authority to execute any documents to effect the issuance of the Insurance Policy by the Insurer, including commitment agreements, membership agreements in mutual insurance companies and other similar agreements. (d) The Mayor and Mayor Pro Tem, the City Manager, Pricing Officer and City Secretary and all other officers, employees and agents of the Issuer, and each of them, shall be and they are hereby expressly authorized, empowered and directed from time to time and at any time to do and perform all such acts and things and to execute, acknowledge and deliver in the name and under the corporate seal and on behalf of the Issuer a Paying Agent /Registrar Agreement with the Paying Agent /Registrar and all other instruments, whether or not herein mentioned, as may be necessary or desirable in order to carry out the terms and provisions of this Ordinance, the Pricing Certificate, the Bonds, the sale of the Bonds, any Purchase Agreement and the Official Statement. In case any officer whose signature shall appear on any Bond shall cease to be such officer before the delivery of such Bond, such signature shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. SECTION 11. INVESTMENTS (a) The Issuer may invest proceeds of the Bonds (including investment earnings thereon) deposited into the Interest and Sinking Fund in investments authorized by the Public Funds Investment Act, Chapter 2256, Texas Government Code, as amended; provided, however, that the Issuer hereby covenants that the proceeds of the sale of the Bonds will be used as soon as practicable for the purposes for which the Bonds are issued. (b) All deposits authorized or required by this Ordinance shall be secured to the fullest extent required by law for the security of public funds. SECTION 12. COMPLIANCE WITH RULE 15c2 -12. (a) Definitions. As used in this Section, the following terms have the meanings ascribed to such terms below: "MSRB" means the Municipal Securities Rulemaking Board. "Rule" means SEC Rule 15c2 -12, as amended from time to time. Page 25 s:Alegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $lOmm).doex "SEC" means the United States Securities and Exchange Commission. (b) Annual Reports. (i) The Issuer shall provide annually to the MSRB, in the electronic format prescribed by the MSRB, financial information and operating data (the "Annual Operating Report ") with respect to the Issuer of the general type included in the final Official Statement authorized by this Ordinance, being the information described in the Pricing Certificate. The Issuer will additionally provide financial statements of the Issuer (the "Financial Statements "), that will be (i) prepared in accordance with the accounting principles described in the Pricing Certificate or such other accounting principles as the Issuer may be required to employ from time to time pursuant to State law or regulation and shall be in substantially the form included in the final Official Statement and (ii) audited, if the Issuer commissions an audit of such Financial Statements and the audit is completed within the period during which they must be provided. The Issuer will update and provide the Annual Operating Report within six months after the end of each fiscal year and the Financial Statements within 12 months of the end of each fiscal year, in each case beginning with the fiscal year ending in and after 2015. The Issuer may provide the Financial Statements earlier, including at the time it provides its Annual Operating Report, but if the audit of such Financial Statements is not complete within 12 months after any such fiscal year end, then the Issuer shall file unaudited Financial Statements within such 12 -month period and audited Financial Statements for the applicable fiscal year, when and if the audit report on such statements become available. All documents provided to the MSRB pursuant to this Section shall be accompanied by identifying information as prescribed by the MSRB. (ii) If the Issuer changes its fiscal year, it will notify the MSRB of the change (and of the date of the new fiscal year end) prior to the next date by which the Issuer otherwise would be required to provide financial information and operating data pursuant to this Section. The financial information and operating data to be provided pursuant to this Section may be set forth in full in one or more documents or may be included by specific reference to any document (including an official statement or other offering document, if it is available from the MSRB) that theretofore has been provided to the MSRB or filed with the SEC. (c) Event Notices. (i) The Issuer shall notify the MSRB in an electronic format as prescribed by the MSRB, in a timely manner (but not in excess of ten business days after the occurrence of the event) of any of the following events with respect to the Bonds, if such event is material within the meaning of the federal securities laws: 1. Non - payment related defaults; 2. Modifications to rights of holders of the Bonds; 3. Bond calls; 4. Release, substitution, or sale of property securing repayment of the Bonds; Page 26 s:Vegal\our documents \ordinances \15 \ordinance 7 -25 -15 (with $1 Omm).docx 5. The consummation of a merger, consolidation, or acquisition involving an obligated person or the sale of all or substantially all of the assets of the obligated person, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms; 6. Appointment of a successor or additional trustee or the change of name of a trustee. (ii) The Issuer shall notify the MSRB in an electronic format as prescribed by the MSRB, in a timely manner (but not in excess of ten business days after the occurrence of the event) of any of the following events with respect to the Bonds, without regard to whether such event is considered material within the meaning of the federal securities laws: 1. Principal and interest payment delinquencies; 2. Unscheduled draws on debt service reserves reflecting financial difficulties; 3. Unscheduled draws on credit enhancements reflecting financial difficulties; 4. Substitution of credit or liquidity providers, or their failure to perform; 5. Adverse tax opinions or the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701 BTEB) or other material notices or determinations with respect to the tax - exempt status of the Bonds, or other material events affecting the tax - exempt status of the Bonds; 6. Tender offers; 7. Defeasances; 8. Rating changes; 9. Bankruptcy, insolvency, receivership or similar event of an obligated person (iii) The Issuer shall notify the MSRB, in a timely manner, of any failure by the Issuer to provide financial information or operating data in accordance with subsection (b) of this Section by the time required by such subsection. (d) Limitations Disclaimers and Amendments. (i) The Issuer shall be obligated to observe and perform the covenants specified in this Section for so long as, but only for so long as, the Issuer remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except that the Issuer in any event will give notice of any deposit made in accordance with this Ordinance or applicable law that causes the Bonds no longer to be outstanding. (ii) The provisions of this Section are for the sole benefit of the Registered Owners and beneficial owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The Issuer undertakes to provide only the financial information, operating data, financial statements, and notices which it has expressly agreed to provide pursuant to this Section and does not hereby undertake to provide any other information that may be relevant Page 27 s:Alegal \our documents \ordinances\1 5 \ordinance 7 -25 -15 (with $1 Omm).docx or material to a complete presentation of the Issuer's financial results, condition, or prospects or hereby undertake to update any information provided in accordance with this Section or otherwise, except as expressly provided herein. The Issuer does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date. (iii) UNDER NO CIRCUMSTANCES SHALL THE ISSUER BE LIABLE TO THE REGISTERED OWNER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE ISSUER, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE. (iv) No default by the Issuer in observing or performing its obligations under this Section shall comprise a breach of or default under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the duties of the Issuer under federal and state securities laws. (v) The provisions of this Section may be amended by the Issuer from time to time to adapt to changed circumstances that arise from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations of the Issuer, but only if (1) the provisions of this Section, as so amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering of the Bonds in compliance with the Rule, taking into account any amendments or interpretations of the Rule since such offering as well as such changed circumstances and (2) either (a) the Registered Owners of a majority in aggregate principal amount (or any greater amount required by any other provision of this Ordinance that authorizes such an amendment) of the outstanding Bonds consent to such amendment or (b) a person that is unaffiliated with the Issuer (such as nationally recognized bond counsel) determined that such amendment will not materially impair the interest of the Registered Owners and beneficial owners of the Bonds. The Issuer may also amend or repeal the provisions of this continuing disclosure agreement if the SEC amends or repeals the applicable provision of the Rule or a court of final jurisdiction enters judgment that such provisions of the Rule are invalid, but only if and to the extent that the provisions of this sentence would not prevent an underwriter from lawfully purchasing or selling Bonds in the primary offering of the Bonds. If the Issuer so amends the provisions of this Section, it shall include with any amended financial information or operating data next provided in accordance with subsection (b) of this Section an explanation, in narrative form, of the reason for the amendment and of the impact of any change in the type of financial information or operating data so provided. (e) Amendment of the Rule. The provisions of this Section shall be revised by the Pricing Officer to reflect the requirements of the Rule if the Rule is amended after the adoption of this Ordinance but prior to the delivery of the Bonds so as to permit an underwriter to purchase or sell Bonds in the primary offering of the Bonds in compliance with the Rule. Any such revisions shall Page 28 Olegal\ our documents \ordinances \15\ordinance 7 -25 -15 (with Wmm).docx be set forth in the Pricing Certificate and are incorporated by reference into this Ordinance and made a part hereof for all purposes, notwithstanding any other provision of this Ordinance to the contrary. SECTION 13. METHOD OF AMENDMENT. The Issuer hereby reserves the right to amend this Ordinance subject to the following terms and conditions, to -wit: (a) The Issuer may from time to time, without the consent of any holder, except as otherwise required by paragraph (b) below, amend or supplement this Ordinance in order to (i) cure any ambiguity, defect or omission in this Ordinance that does not materially adversely affect the interests of the holders, (ii) grant additional rights or security for the benefit of the holders, (iii) add events of default as shall not be inconsistent with the provisions of this Ordinance and that shall not materially adversely affect the interests of the holders, (iv) qualify this Ordinance under the Trust Indenture Act of 1939, as amended, or corresponding provisions of federal laws from time to time in effect, or (v) make such other provisions in regard to matters or questions arising under this Ordinance as shall not be inconsistent with the provisions of this Ordinance and that shall not in the opinion of the Issuer's Bond Counsel materially adversely affect the interests of the holders. (b) Except as provided in paragraph (a) above, the holders of Bonds aggregating in principal amount a majority of the aggregate principal amount of then outstanding Bonds that are the subject of a proposed amendment shall have the right from time to time to approve any amendment hereto that may be deemed necessary or desirable by the Issuer; provided, however, that without the consent of 100% of the holders in aggregate principal amount of the then outstanding Bonds, nothing herein contained shall permit or be construed to permit amendment of the terms and conditions of this Ordinance or in any of the Bonds so as to: (1) Make any change in the maturity of any of the outstanding Bonds; (2) Reduce the rate of interest borne by any of the outstanding Bonds; (3) Reduce the amount of the principal of, or redemption premium, if any, payable on any outstanding Bonds; (4) Modify the terms of payment of principal or of interest or redemption premium on outstanding Bonds or any of them or impose any condition with respect to such payment; or (5) Change the minimum percentage of the principal amount of Bonds necessary for consent to such amendment. (c) If at any time the Issuer shall desire to amend this Ordinance under this Section, the Issuer shall send by U.S. mail to each Registered Owner of the affected Bonds a copy of the proposed amendment and cause notice of the proposed amendment to be published at least once in a financial publication published in The City of New York, New York or in the State of Texas. Page 29 sAlegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx Such published notice shall briefly set forth the nature of the proposed amendment and shall state that a copy thereof is on file at the office of the Issuer for inspection by all holders of such Bonds. (d) Whenever at any time within one year from the date of publication of such notice the Issuer shall receive an instrument or instruments executed by the holders of at least a majority in aggregate principal amount of all of the Bonds then outstanding that are required for the amendment, which instrument or instruments shall refer to the proposed amendment and that shall specifically consent to and approve such amendment, the Issuer may adopt the amendment in substantially the same form. (e) Upon the adoption of any amendatory Ordinance pursuant to the provisions of this Section, this Ordinance shall be deemed to be modified and amended in accordance with such amendatory Ordinance, and the respective rights, duties, and obligations of the Issuer and all holders of such affected Bonds shall thereafter be determined, exercised, and enforced, subject in all respects to such amendment. (f) Any consent given by the holder of a Bond pursuant to the provisions of this Section shall be irrevocable for a period of six months from the date of the publication of the notice provided for in this Section, and shall be conclusive and binding upon all future holders of the same Bond during such period. Such consent may be revoked at any time after six months from the date of the publication of said notice by the holder who gave such consent, or by a successor in title, by filing notice with the Issuer, but such revocation shall not be effective if the holders of a majority in aggregate principal amount of the affected Bonds then outstanding, have, prior to the attempted revocation, consented to and approved the amendment. For the purposes of establishing ownership of the Bonds, the Issuer shall rely solely upon the registration of the ownership of such Bonds on the Registration Books kept by the Paying Agent /Registrar. SECTION 14. DEFAULT AND REMEDIES. (a) Events of Default. Each of the following occurrences or events for the purpose of this Ordinance is hereby declared to be an Event of Default: (i) the failure to make payment of the principal of or interest on any of the Bonds when the same becomes due and payable; or (ii) default in the performance or observance of any other covenant, agreement or obligation of the Issuer, the failure to perform which materially, adversely affects the rights of the Registered Owners of the Bonds, including, but not limited to, their prospect or ability to be repaid in accordance with this Ordinance, and the continuation thereof for a period of 60 days after notice of such default is given by any Registered Owner to the Issuer. (b) Remedies for Default. Page 30 sAlegal\ our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx (i) Upon the happening of any Event of Default, then and in every case, any Registered Owner or an authorized representative thereof, including, but not limited to, a trustee or trustees therefor, may proceed against the Issuer for the purpose of protecting and enforcing the rights of the Registered Owners under this Ordinance, by mandamus or other suit, action or special proceeding in equity or at law, in any court of competent jurisdiction, for any relief permitted by law, including the specific performance of any covenant or agreement contained herein, or thereby to enjoin any act or thing that may be unlawful or in violation of any right of the Registered Owners hereunder or any combination of such remedies. (ii) It is provided that all such proceedings shall be instituted and maintained for the equal benefit of all Registered Owners of Bonds then outstanding. (c) Remedies Not Exclusive. (i) No remedy herein conferred or reserved is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or under the Bonds or now or hereafter existing at law or in equity; provided, however, that notwithstanding any other provision of this Ordinance, the right to accelerate the debt evidenced by the Bonds shall not be available as a remedy under this Ordinance. (ii) The exercise of any remedy herein conferred or reserved shall not be deemed a waiver of any other available remedy. (iii) By accepting the delivery of a Bond authorized under this Ordinance, such Registered Owner agrees that the certifications required to effectuate any covenants or representations contained in this Ordinance do not and shall never constitute or give rise to a personal or pecuniary liability or charge against the officers, employees or agents of the Issuer or the members of its governing body. SECTION 15. APPROVAL OF ESCROW AGREEMENTS AND TRANSFER OF FUNDS. In furtherance of authority granted by Section 1207.007(b), Texas Government Code, the Mayor or the Pricing Officer are further authorized to enter into and execute on behalf of the Issuer with the escrow agent named therein and any other necessary parties, one or more escrow or similar agreements, in the form and substance as shall be approved by the Pricing Officer, which agreement or agreements will provide for the payment in full of the Refunded Bonds and the Refunded TMPA Bonds. In addition, the Mayor, Pricing Officer or other officer of the Issuer is authorized to purchase such securities, to execute such subscriptions for the purchase of the Escrowed Securities, (as defined in the agreement), if any, and to authorize such contributions to the escrow fund as provided in the agreement. SECTION 16. REDEMPTION OF REFUNDED BONDS. (a) Subject to the execution and delivery of the Purchase Agreement with the Purchaser, the Issuer hereby directs that the Refunded Bonds be called for redemption on the dates and at such Page 31 sAlegal \our documents \ordinances\1 5 \ordinance 7 -25 -15 (with $1 Omni).docx prices as set forth in the Pricing Certificate. The Pricing Officer is hereby authorized and directed to issue or cause to be issued the Notices of Redemption of the Refunded Bonds in substantially the form set forth in Exhibit A attached hereto, completed with information from the Pricing Certificate, to the paying agent / registrar(s) for the Refunded Bonds. (b) In addition, the paying agent /registrar(s) for the Refunded Bonds is hereby directed to provide the appropriate notices of redemption and defeasance as specified by the ordinances authorizing the issuance of the Refunded Bonds and is hereby directed to make appropriate arrangements so that the Refunded Bonds may be redeemed on their respective redemption dates. The Refunded Bonds shall be presented for redemption at the paying agent /registrar therefore, and shall not bear interest after the date fixed for redemption. (c) If the redemption of the Refunded Bonds results in the partial refunding of any maturity of the Refunded Bonds, the Pricing Officer shall direct the paying agent / registrar(s) for the Refunded Bonds to designate at random and by lot which of the Refunded Bonds will be payable from and secured solely from ad valorem taxes of the Issuer pursuant to the ordinance of the Issuer authorizing the issuance of such Refunded Bonds (the "Refunded Bond Ordinance "). The paying agent /registrar(s) shall notify by first -class mail all registered owners of all affected obligations of such maturities that: (i) a portion of such obligations have been refunded and are secured until final maturity solely with cash and investments maintained by the escrow agent in the escrow fund, (ii) the principal amount of all affected obligations of such maturities registered in the name of such registered owner that have been refunded and are payable solely from cash and investments in the Escrow Fund and the remaining principal amount of all affected obligations of such maturities registered in the name of such registered owner, if any, have not been refunded and are payable and secured solely from ad valorem taxes of the Issuer described in the Refunded Bond Ordinance, (iii) the registered owner is required to submit his or her Refunded Bonds to the paying agent /registrar(s), for the purposes of re- registering such registered owner's obligations and assigning new CUSIP numbers in order to distinguish the source of payment for the principal and interest on such obligations, and (iv) payment of principal of and interest on such obligations may, in some circumstances, be delayed until such obligations have been re- registered and new CUSIP numbers have been assigned as required by (iii) above. (d) The source of funds for payment of the principal of and interest on the Refunded Bonds on their respective maturity or redemption dates shall be from the funds placed in escrow with the escrow agent, pursuant to an escrow agreement approved in Section 15 of this Ordinance. SECTION 17. PAYMENT OF REFUNDED TMPA OBLIGATIONS. There is hereby appropriated from current funds on hand, which are hereby certified to be on hand and available, $10,000,000 to be applied against the Refunded TMPA Obligations and placed into escrow with the escrow agent pursuant to an escrow agreement approved in Sections 15 of this Ordinance. The Pricing Officer is hereby authorized and directed to provide any necessary notices to TMPA that the Issuer is providing funds to pay, pursuant to the Power Sales Agreement and the TMPA Resolution, the amount necessary to pay the Refunded TMPA Obligations in full and requesting TMPA to take such actions as are necessary to cause the defeasance of the Refunded TMPA Bonds, including application of the amounts in the funds securing payment of the Refunded TMPA Bonds to pay the maturity value of said obligations. The Mayor, City Manager or Assistant City Manager Page 32 sAlegal \our docunients \ordinances \15 \ordinance 7 -25 -15 (with $10mm).doex is hereby authorized and directed to execute and deliver such certificates or other instruments or agreements necessary to provide for the redemption, payment and defeasance of the Refunded TMPA Obligations and the Refunded TMPA Bonds. SECTION 18. APPROPRIATION. To pay the debt service coming due on the Bonds, if any, prior to receipt of the taxes levied to pay such debt service, there is hereby appropriated from current funds on hand, which are hereby certified to be on hand and available for such purpose, an a>nount, which together with capitalized interest received from the sale of the Bonds, if any, will be sufficient to pay such debt service, and such amount shall be used for no other purpose. SECTION 19. EFFECTIVE DATE. In accordance with the provisions of Texas Government Code Section 1201.028, this Ordinance shall be effective immediately upon its adoption by the City Council. SECTION 20. SEVERABILITY. If any section, article, paragraph, sentence, clause, phrase 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 portion of this Ordinance, despite such invalidity, which remaining portions shall remain in full force and effect. PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r BY: CHRIS WATTS, MAYOR Page 33 s:AlegaAour documents \ordinances \15 \ordinance 7 -25 -15 (with $I Omm).docx SCHEDULEI Schedule of Eligible Refunded Bonds City of Denton Utility System Revenue Refunding Bonds, Series 2005 Principal Amount Maturity Date Outstanding 12/01/2016 $5,980,000 12/01/2017 6.270.000 12/01/2018 6.240.000 12/01/2019 6.575.000 12/01/2020 2.720.000 12/01/2021 2.875.000 12/01/2022 1,775,000 Total $ 32,435,000 City of Denton Utility System Revenue Bonds, Series 2006 Principal Amount Maturity Outstanding 12/01/2017 $440.000 12/01/2018 460,000 12/01/2019 485,000 12/01/2020 505,000 12/01/2021 530,000 12/01/2023 1,145,000 12/01/2025 1,260,000 Total $4,825,000 Schedule of Refunded TMPA Obligations A portion of the contractual obligations of the Issuer under the Power Sales Agreement relating to the payment of the Issuer's Contract Percentage of such portion of $120,725,000 in maturity value of the September 1, 2016 maturity of the TMPA's outstanding "Texas Municipal Power Agency Refunding Revenue Bonds, Series 1993" (the "Refunded TMPA Bonds ") with such Contract Percentage of such portion being $13,430,000. S -1 sAlegal \our documents \ordinances \15 \ordinance 7 -25 -15 (with $10mm).docx EXHIBIT A Notice of Redemption NOTICE IS HEREBY GIVEN that the City of Denton, Texas has called for redemption the outstanding Bonds of the City described as follows: City of Denton Utility System Revenue Refunding Bonds, Series 2005, dated May 15, 2005, scheduled to mature on December 1, 20_ through December 1, 20_, aggregating $ (and being all of the outstanding bonds of said series scheduled to mature on and after December 1, 20__); Call date: , 20_; redeemable at a redemption price of par plus accrued interest at the principal corporate offices of The Bank of New York Mellon Trust Company, N.A., only upon presentation by the owner thereof. City of Denton Utility System Revenue Bonds, Series 2006, dated July 15, 2006, scheduled to mature on December 1, 20 through December 1, 20_, aggregating $ (and being all of the outstanding bonds of said series scheduled to mature on and after December 1, 20___); Call date: , 20 ; redeemable at a redemption price of par plus accrued interest at the principal corporate offices of The Bank of New York Mellon Trust Company, N.A., only upon presentation by the owner thereof. If moneys sufficient for the payment of such redemption price are held by or on behalf of the paying agent, the described Bonds shall become due and payable on the redemption date specified, and the interest thereon shall cease to accrue from and after the redemption date. In compliance with section 3406 of the Internal Revenue Code of 1986, payors making certain payments due on debt securities may be obligated to deduct and withhold 30 percent of such payment from the remittance to any payee who has failed to provide such payor with a valid taxpayer identification number. To avoid the imposition of the withholding of tax, such payees should submit a taxpayer identification number when surrendering the bonds for redemption. NOTICE IS FURTHER GIVEN that all Bonds should be submitted to one of the following address: First Class /Registered/ Certified Mail The Bank of New York Mellon Trust Company, N.A. Global Corporate Trust P.O. Box 396 East Syracuse, New York 13057 Express Delivery The Bank of New York Mellon Trust Company, N.A. Global Corporate Trust 111 Sanders Creek Parkway East Syracuse, New York 13057 A -1 Hand Delivery The Bank of New York Mellon Trust Company, N.A. Global Corporate Trust Corporate Trust Window 101 Barclay Street 1 ST Floor East New York, New York 10286 sAlegal\our documents \ordinances \15 \ordinance 7 -25 -15 (with $10nim).doex Dated: , 20 By: The Bank of New York Mellon Trust Company, National Association A -2 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -590, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development CM/ ACM: George Campbell Date: August 4, 2015 SUBJECT Consider approval of a resolution approving the 2014 Tax Increment Reinvestment Zone Number Two (Westpark TIRZ) Annual Report; and declaring an effective date. BACKGROUND On December 17, 2012, the City Council adopted an Ordinance No. 2012 -366 designating and describing the boundaries of Tax Increment Reinvestment Zone Number Two (Westpark TIRZ) to provide the public infrastructure necessary to encourage development in the largest industrially zoned area in the City. An annual report is required to be submitted to each taxing jurisdiction and the State Comptroller of Public Accounts, detailing the previous year's TIRZ activities. Staff has drafted the enclosed report for consideration by the Council. This is the second year of the Westpark TIRZ. According to Denton Central Appraisal District (DCAD) supplemental figures, the 2014 total appraised valuation of taxable real property in TIRZ Number Two was $241,101. This is a $121,643 increase from the 2012 base value of 119,458. Staff met with the Finance Department to review the DCAD certified and supplemental values, contribution into the fund and to adjust the cut -off period and recording of value for the TIRZ. The last supplement in January was established as the cut- off period and recording of the value for the TIRZ to match the billing period established in the Participation Agreement with the County. The captured valuation into the TIRZ fund is illustrated in the tables below. Table l: City Certified and Supplemental TIRZ Two Valuation Summary Year r1RZ Certified Value Supplement TIRZ Value Annual Captured Supplement Value City's 40% Contribution to TIRZ Fund 2012 119,458 119,458 /A /A 2013 119,458 119,458 2014 66,436 41,101 121,643 36 Totals 121,643 36 Mpplemental 2U on 1 1sU 11J used Table 2: County Certified and Supplemental TIRZ Two Valuation Summary City of Denton Page 1 of 2 Printed on 7/30/2015 File M ID 15 -590, Version: 1 Year IRZ Certified Value Supplement TIRZ Value Annual Captured Supplement Value ounty's 40% Contribution o TIRZ Fund 2012 119,458 119,458 /A /A 2013 119,458 119,458 2014 566,436 41,101 121,643 132 Totals 121,643 132 Supplemental 20 on 1130115 used Total City and County TIRZ Contribution 2014 68 PRIOR ACTION/REVIEW The TIRZ Two board reviewed the 2014 Annual Report on April 8, 2015, and recommends approval (8 -0). EXHIBITS Resolution 2014 TIRZ Two Annual Report Respectfully submitted, Aimee Bissett, Director Economic Development Department Prepared by: Erica Sullivan, Economic Development Analyst Economic Development Department City of Denton Page 2 of 2 Printed on 7/30/2015 Oegpikour docunients\rcsol tit i ons\ 1 5\2014 annual report resolution.doc RESOLUTION NO. A RESOLUTION OF CITY COUNCIL OF THE CITY OF DENTON, TEXAS, Al"PROVINCY THIH 2014 TAX INC, REMENT REANVESTMENT ZONE NUMBER TWO (WESTPARKTIRZ) ANNUAL REPORT; AND DI"'CLARING AN EFFECTIVE DATE. WHE,'UAS, the City of Denton recognizes the importance of its role in local economic development initiatives and programs; and W11E.REAS, the City has established Tax Increment Reinvestment Zone Number Two (Westpark 'FIR Z) and established as Board of Directors for the District to promote development or redevelopment in the Downtown area pursuant to, Ordinance No. 2012-366, authorized by the City Council on December 18, 2012, as provided by the 'I I ax Increment Financing Act, Chapter 311 of theTexas Tax Code, as amended; and WHEREAS, on February 5, 2013, the City, Council adopted Ordinance 2013-03,3 accepting an Agreement with Denton County to participate inTIRZ Number Two; and WHEREAS, the 'fzm Increment Financing Act specifies that the governing body of a city shall submit an annual report on the financial status of the district to the Chief. E"xecutive Officer of each taxing unit that levies taxes on real property in as reinvestment zone, and a copy of the report shall be tbr\varded to the State Comptroller; and WHEREAS, on April 8, 2015, the Westpark TIRE District Board reviewed and recommended approval of the 2014 AnnUal Report for Tax Increment Financing Reinvestment Zone Number Two to the City Council; NOW, Tl I F"R FIFORl!" THE COUNCIL Of"Fill". '11 CITY OF DI-`N ON IJEREBY RE"SOLVES: SECTION 1. The 2014 Annual Report for Tax Increment Reinvestment Zone Number Two, (Westpark TIRZ), City of Denton, Texas, as of December 31. 2014, a copy of which is attached hereto (Exhibit A), and is hereby accepted. SECTION 2. The City Manager is hereby authorized to submit the 2014 Annual Report for Tax Increment Financing Reinvestment. Zone NurtiberTwo to the Chief Executive Officer of each taxing jurisdiction that levies tax on real property in the District; and to the State Comptroller, as required by state law. SECTION 3. This resolution shall take effect immediately from and after its passage in accordance width the provisions of' the Charter of the City of Denton, and it is accordingly so resolved. Page I s:'Acgokour doe umentsVeso ki tionsA5\20W anntjaV report resottifion,doc 13ASSED AND APPROVE"D this the day of— 2015. ATTEST': JENNIFER WAL,'T'ERS, (.',I'I'Y SE"CRETARY I= APPROVED ASTO LEGAL FORM: ANFFA BURGESS, CITY'A'"I"FORNEY "'] �e4 Page 2 CHRIS WA-r-rs, MAYOR EXHIBIT A Tax Increment Reinvestment Zone Number Two (Westpark TIRZ) 2014 Annual Report City of Denton Economic Development Office 215 E. McKinney Street Denton, Texas 76201 940 - 349 -7775 www.dentonedp.com January 1, 2013 to December 31, 2013 Table of Contents Map............................................................................................................. ............................... I MissionStatement ...................................................................................... ..............................2 Backgroundand Purpose .......................................................................... ..............................2 ParticipatingJurisdictions ............................................................................ ..............................3 DistrictAccomplishments ......................................................................... ..............................3 Summaryof TIRZ Board Meetings ......................................................... ..............................3 Budgetand Project Status ......................................................................... ..............................4 ProjectDefinitions ....................................................................................... ..............................4 Revenues...................................................................................................... ..............................5 Expenditures................................................................................................ ..............................5 2014 Work Program .................................................................................. ..............................5 Appendices.................................................................................................. ..............................6 Appendix A: TIRZ Two Summary .............................................................. ..............................6 Appendix B: 2014 Certified Totals, Supplement 20 ................................... ..............................7 Tax Increment Reinvestment Zone Number Two a This ni alp its a graphc represe, n1afion prepared hi° H �,O, City of i1ird is ItVoridpd fOr 01111Y -'j's a ("Wa dep?cted is no° t guawteed for acctjiac� and may be, sabjef,;t tia revision at �nv We wMi(,oiA no,11ioation. A, Registered sunvizryor for the Stan e 1")r -N,,Xas was FxA cx)nStjl1Qd 50f, Suivey levO wxmaacy and certification of 1he rmAwr;ed data Oy R Rip.gisleolerl Land �,�orveyor for the State of Toxas would need to be ptirfonned, 0 412, 825 1,1650 2,475 3,300 Feet Property Description ................. Com meroiall Vacant W .......... 1')E,,NT0fN Mission Statement The mission of the Tax Increment Reinvestment Zone (TIRZ) Number Two is to provide a source of funding for public infrastructure improvements to encourage and accelerate necessary development within the largest industrially zoned area within the City. Background and Purpose Tax increment financing originated as a tool for governments to publicly finance needed improvements and enhance infrastructure within a defined area in order to stimulate private development and redevelopment. A TIRZ is a defined area where public infrastructure improvements are deemed necessary to promote development. The costs of the improvements to the area are repaid by the contribution of future tax revenues. Specifically, each taxing entity may choose to dedicate all, a portion or none of the tax revenue that is attributable to the increase in property values. The additional tax revenue that is received from the affected properties is referred to as the tax increment. An ad valorem valuation base is established the first year, and the revenue from the increased valuation from subsequent years is allocated into a TIRZ fund to support development projects. On December 17, 2012 the City Council adopted an Ordinance 2012 -366 designating and describing the boundaries of Tax Increment Reinvestment Zone Number Two for an industrial district of Denton, Texas; establishing the duration of the Zone; establishing a Tax Increment Fund; establishing a Board of Directors for the Tax Increment Reinvestment Zone. The City's second TIRZ consists of approximately 800 acres and is located north of Airport Road. This industrial area (Westpark) lacks the public infrastructure necessary to encourage development. The Westpark TIRZ took effect on January 1, 2013 and will terminate on December 31, 2036 or the date when all project costs are paid and any debt is retired, whichever comes first. It is estimated that the TIRZ would generate approximately $14.3 million over a 25 year period for infrastructure improvements. The City and Denton County will contribute $10 million and $4.2 million into the TIRZ fund, respectively. According to the Finance Plan, the City would retain $43.9 million and the County would retain $18.8 million of real and business personal property revenue over the life of the TIRZ. Pi Participating Jurisdictions Table 1: TIRZ Two Particinatin2 Jurisdictions City of Denton 1 -10 0.68975 40 11 -25 0.71975 40 Denton County 1 -10 0.282867 40 11 -25 0.312867 40 The TIRZ board is comprised of 11 members. The City Council is responsible for appointing nine members and designating the board Chair. The governing body of Denton County, which levies taxes on real property in TIRZ Number Two, has appointed one board member. Westray Group L.P, the Developer, has also appointed a single board representative. District Accomplishments This is the second year of the Westpark TIRZ. During calendar year 2014, $1,679 was collected based on the value of the last supplemental of the calendar year from the Denton Central Appraisal District (DCAD). The City's and County's contribution in the TIRZ fund for 2014 was $1,204 and $475, respectively. No funds were distributed in 2014. Denton City Council adopted an Ordinance accepting an Agreement with Denton County to participate in Tax Increment Reinvestment Zone, Number Two; authorizing the City Manager to execute the Agreement on February 5, 2013. On February 12, 2013 the board for TIRZ Two was appointed by City Council. Economic Development staff has coordinated with multiple City departments, the developer and legal counsel to develop a Reimbursement/Developer Agreement with the developer. The Agreement was approved by the Denton City Council on May 13, 2014 through Ordinance 2014 -142. Summary of TIRZ Two Board Meetings The Westpark TIRZ Board met on April 1, 2014 to amend Ordinance 2012 -366 establishing the TIRZ Number Two by establishing term limits for the TIRZ board that are concurrent with the terms of the Economic Development Partnership (EDP) board, which was approved by City Council on February 4, 2014 (Ordinance 2014 -039). The board also recommended approval of the 2013 Annual Report for the Westpark TIRZ. The board met on May 6, 2014 and recommended approval of the final Project and Financing Plan, and the Reimbursement Agreement with Westray Group, LP for the Westpark TIRZ. 3 Table 2: Board Member List and Attendance During 2014, the TIRZ Board received reports and took action on the following items: 1. Received briefings on: the status of the Reimbursement/Developer Agreement 2. Recommend Amended Ordinance 2012 -366 establishing the TIRZ Number Two by establishing term limits for the TIRZ board that are concurrent with the terms of the EDP board 3. Recommended approval of the final Project and Financing Plan, and the Reimbursement Agreement with Westray Group, LP for the Westpark TIRZ. Budget and Project Status The Westpark TIRZ district has established in its Project and Finance Plans a budget for public improvement expenditures necessary to support public infrastructure and private investment in the district. Table 3, which follows, provides the TIRZ projects and estimated costs. Table 3: TIRZ Proiects Costs Project Definitions Street Improvements: includes the construction and reconstruction of paving improvements capable of handling heavy truck traffic and that provide common turning radius for semi trailers and may consist of, but are not limited to, primary and secondary major arterial thoroughfares 0 and collector streets that will provide improved access within the industrial park, to State highways, and Interstate 35. Utilities and Drainage: includes the extension of water and wastewater lines along the right -of- ways of the streets within the District. Water and wastewater lines will be built to adequately accommodate the District at build -out and its anticipated industrial users. A number of properties in the district are situated in the floodplain. Adequate stormwater drainage will be built to accommodate the maximum use of the land and comply with the drainage standards in the Denton Development Code. Industrial Projects: may include grants, loans and services for public and private development. Eligible TIRZ project costs are not limited to public uses and may also include projects that stimulate economic development. Chapter 380 of the Local Government Code grants municipalities in Texas the authority to offer grants and loans of public funds to stimulate economic development. Revenues According to Denton Central Appraisal District (DCAD) supplemental figures, the 2014 total appraised valuation of taxable real property in TIRZ Number Two was $241,101. This is a $121,643 increase from the 2012 base value of 119,458 and represents a 101.8% change in valuation. The valuation and contribution into the TIRZ fund is illustrated in the tables below. Table 4: Citv Certified and Sunnlemental TIRZ Two Valuation Su 2012 1 119,458 119,458 N/A N/A 2013 119,458 119,458 0 0 2014 566,436 241,101 121,643 336 Totals 121,643 336 Supplemental 20 on 1130115 used Table 5: Countv Certified and Sunnlemental TIRZ Two Valuation 2012 1 119,458 119,458 N/A N/A 2013 119,458 119,458 0 0 2014 566,436 241,101 121,643 132 Totals 121,643 132 Supplemental 20 on 1130115 used Total City and County TIRZ Contribution 2014 1 468 The 800 acre Westpark TIRZ is comprised of undeveloped land adjacent to the Denton Airport Business Park. Currently, all of the land within the TIRZ boundary has an agricultural exemption. While the net taxable, after the agricultural exemption, is $241,101 the market value of the district is $17,692,357, which roughly doubled from the 2013 market value of 8,020,794. Once the property is sold and developed the exemption will be removed and the valuation will more accurately reflect the market value of the land. Expenditures No funds were expended in 2014. 2014 Work Program No projects were initiated in 2014 11 Appendix A: TIRZ Two (Westpark) CITY OF DENTON TAX INCREMENT FINANCING REINVESTMENT ZONE (TIRZ) NUMBER TWO WESTPARK 6/8/2015 DENTON County Property Count: 29 2014 CERTIFIED TOTALS TIF9 - DENTON CITY TIRZ NO 2 (Westpark) Grand Totals As of Supplement 20 1/30/2015 9:11:40AM Land Value Homesite: 0 Non Homesite: 2,475,477 Ag Market: 15,165,236 Timber Market: 0 Total Land H 17,640,713 Improvement Value Homesite: 47,644 Non Homesite: 4,000 Total Improvements H 51,644 Non Real Count Value Personal Property: 0 0 Mineral Property: 0 0 Autos: 0 0 Total Non Real H 0 Market Value = 17,692,357 Ag Non Exempt Exempt Total Productivity Market: 15,165,236 0 Ag Use: 46,143 0 Productivity Loss H 15,119,093 Timber Use: 0 0 Appraised Value = 2,573,264 Productivity Loss: 15,119,093 0 Homestead Cap H 0 Assessed Value = 2,573,264 Total Exemptions Amount H 2,332,163 (Breakdown on Next Page) Net Taxable = 241,101 APPROXIMATE TOTAL LEVY = NET TAXABLE * (TAX RATE / 100) 0.00 = 241,101 " (0.000000 / 100) Tax Increment Finance Value: 0 Tax Increment Finance Levy: 0.00 TI F9/833536 Page 195 of 268 True Automation, Inc. DENTON County 2014 CERTIFIED TOTALS TIF9 - DENTON CITY TIRZ NO 2 (Westpark) Property Count: 29 Grand Totals Exemption Breakdown As of Supplement 20 1/30/2015 9:11:51 AM Exemption Count Local State Total EX -XV 2 0 2,017,457 2,017,457 EX -XV (Prorated) Totals 314,706 2,332,163 314,706 2,332,163 TI F9/833536 Page 196 of 268 True Automation, Inc. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -599, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: August 4, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for construction of Poured in Place Retaining Walls for the City of Denton Kings Row Substation Addition; providing for the expenditure of funds therefor; and providing an effective date (RFP 5810- awarded to DynaGrid Construction Group, LLC in the not -to- exceed amount of amount of $599,683.30). The Public Utilities Board recommends approval (4 -0). RFP INFORMATION The Kings Row Substation is an approved Capital Improvement Plan project that will supply electric power to the northeastern areas of the Denton Municipal Electric service territory. This new substation will replace the existing Kings Row substation. Its construction is necessary to support growth and reliability. Construction of the concrete retaining walls is necessary to allow the proper grading of the site. The western wall (Wall A) will allow the substation site to be built up to the edge of an existing drainage area and will be approximately 1,940 square feet. The eastern wall (Wall B) will allow the construction of a future backage road (City owned frontage road) along Loop 288. The wall will be approximately 1,940 square feet. The retaining walls will be poured in place concrete. The walls will vary in height with Wall A located outside the security fence and Wall B located inside the security fence (Exhibit 1 -Map). Requests for Proposals were sent to 485 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Seven (7) proposals meeting specification were received. The proposals were evaluated based upon published criteria including price, project schedule, compliance with specifications, and indicators of probable performance. The lowest cost proposal was submitted by Humphrey and Morton, but their project delivery schedule is 257 working days. This schedule would delay the completion of the Kings Row Substation by almost four months. The second lowest cost proposal which was submitted by DynaGrid Construction Group, LLC (DynaGrid) proposed a delivery schedule of 72 working days. Therefore, based on the project delivery schedule scoring, DynaGrid was ranked the highest and determined to be the best value for the City (Exhibit 2). PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On July 27, 2015, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. City of Denton Page 1 of 2 Printed on 7/30/2015 File #: ID 15 -599, Version: 1 RECOMMENDATION Award to DynaGrid Construction Group, LLC in the not -to- exceed amount of amount of $599,683.30. PRINCIPAL PLACE OF BUSINESS DynaGrid Construction Group, LLC Lewisville, TX ESTIMATED SCHEDULE OF PROJECT The construction of the walls is estimated to be completed within 72 working days of Notice to Proceed. FISCAL INFORMATION The project will be funded from Electric Capital account 4603054500.1350.3530. Requisition# 124961 has been entered in the Purchasing software system. EXHIBITS Exhibit l: Map Exhibit 2: Evaluation/Ranking Sheet Exhibit 3: Public Utilities Board Draft Minutes Exhibit 4: Ordinance Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Chris Lutrick at 349 -7152. City of Denton Page 2 of 2 Printed on 7/30/2015 H �4 yC W .6 6 � w S lo lo 76 14 1 .6 6 � w EXHIBIT 3 DRAFT MINUTES PUBLIC UTILITIES BOARD July 27, 2015 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, July 27, 2015 at 9:02 a.m. in the Service Center Training Room, City of Denton Service Center, 901 Texas Street, Denton, Texas. Present: Vice Chair Billy Cheek, Secretary Randy Robinson, Barbara Russell and Lilia Bynum Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities Absent: Chairman Dick Smith, Phil Gallivan and Charles Jackson OPEN MEETING: CONSENT AGENDA: 1. Consider recommending approval of a contract with DynaGrid Construction Group, a limited liability corporation, Lewisville, Texas, for constructing poured in place concrete retaining walls at the Kings Row Substation in an amount not to exceed $599,683.30. (RFP #5810) Motion was made to approve item 1 by Board Member Russell with the second by Board Member Robinson. The vote was 4 -0 approved. Adjournment - 10:04 a.m. EXHIBIT 4 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A PUBLIC WORKS CONTRACT FOR CONSTRUCTION OF POURED IN PLACE RETAINING WALLS FOR THE CITY OF DENTON KINGS ROW SUBSTATION ADDITION; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (RFP 5810- AWARDED TO DYNAGRID CONSTRUCTION GROUP, LLC IN THE NOT -TO- EXCEED AMOUNT OF AMOUNT OF $599,683.30). WHEREAS, the City has solicited, received and tabulated competitive proposals for the construction 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 proposal is the highest scored proposal for the construction of the public works or improvements described in the Request for Proposal (RFP) document and plans and specifications therein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive proposal for the construction of public works or improvements, as described in the "Request for Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the RFP number assigned hereto, are hereby accepted and approved: RFP NUMBER CONTRACTOR AMOUNT 5810 DynaGrid Construction Group, LLC $599,683.30 SECTION 2. The acceptance and approval of the above competitive proposals shall not constitute a contract between the City and the person submitting the proposal for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Proposers including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award. SECTION 3. The City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the proposals accepted and approved herein, provided that such contracts are made in accordance with the Notice to Proposers and Request for Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. EXHIBIT 4 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 RFP 5810 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. Upon acceptance and approval of the above competitive proposals 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 proposals 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 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY _ A BY: City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -600, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: August 4, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving an Interagency Cooperation Contract by and between the University of Texas at Arlington and the City of Denton, Texas for a term of three years to provide landfill sampling and testing of mined materials; monitoring gas emissions during the mining process; monitoring and characterizing storm water and leachate; evaluating and recommending a dust management system for mining operations; investigate the mined samples; investigate the energy potential of the mined materials; develop landfill mining protocol; municipal solid waste (MSW) sampling and evaluation; and determine moisture content analysis during the ongoing Enhanced Leachate Recirculation (ELR) operations for the City of Denton landfill in an amount not -to- exceed $399,806; providing for retroactive approval, confirmation and ratification thereof; authorizing the City Manager or his designee to execute said contract on behalf of the City of Denton; providing for the expenditure of funds; providing an effective date (File 5892). The Public Utilities Board recommends approval (6 -0). FILE INFORMATION Since 2009, the University of Texas at Arlington (UTA) Environmental Engineering Department has worked with the City of Denton's Solid Waste and Recycling Department staff to develop best management practices for the City's Solid Waste and Recycling Services operations. The UTA staff has provided necessary research and data that is relevant to the City's bioreactor landfill operations. Several graduate students and their major professor have provided testing, analysis, and research regarding the landfill's moisture content, the waste's physical characteristics, and the permeability of various waste materials. UTA staff is currently investigating cover soils indigenous to the landfill area, and various vegetative plants that could be used in order to optimize the cell cap characteristics during the landfill closure period. The attached Interagency Cooperation Contract is for the continuation of these services. Under Task A of this agreement, UTA staff will provide sampling and testing of mined materials, monitor gas emissions during the mining process, monitor and characterize storm water and leachate, and evaluate and recommend a dust management system for mining operations. Under Task B, UTA staff will also investigate the mined samples, the energy potential of the mined materials, and develop landfill mining protocol. Task C involves MSW sampling and evaluation, and moisture content analysis during the ongoing Enhanced Leachate Recirculation (ELR) operations. City of Denton Page 1 of 2 Printed on 7/30/2015 File #: ID 15 -600, Version: 1 PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On July 13, 2015, the Public Utilities Board (PUB) recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Approve an Interagency Cooperation Contract between the University of Texas at Arlington and the City of Denton, Texas in the three (3) year not -to- exceed amount of $399,806. PRINCIPAL PLACE OF BUSINESS University of Texas at Arlington Arlington, TX ESTIMATED SCHEDULE OF PROJECT The project services will be provided and completed over a three (3) year period which ends April 20, 2018. FISCAL INFORMATION These services will be funded from Solid Waste Capital account 660083595.1360.30100. Requisition 4124985 has been entered in the Purchasing software system. EXHIBITS Exhibitl: Public Utility Board Draft Minutes Exhibit 2: Ordinance Exhibit 3: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Vance Kemler at 349 -8044. City of Denton Page 2 of 2 Printed on 7/30/2015 EXHIBIT 1 DRAFT MINUTES PUBLIC UTILITIES BOARD July 13, 2015 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, July 13, 2015 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901 Texas Street, Denton, Texas. Present: Chairman Dick Smith, Vice Chair Billy Cheek, Secretary Randy Robinson, Phil Gallivan, Barbara Russell and Charles Jackson Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities Absent: Lilia Bynum OPEN MEETING: CONSENT AGENDA: 3. Consider a recommendation for approval of a multi -year, Interagency Cooperation Contract with the University of Texas at Arlington and the City of Denton Solid Waste & Recycling Department to provide for monitoring, characterizing, and investigating mined MSW samples, and for sampling MSW and investigating the moisture content, in an amount not to exceed $399,806. Motion was made to approve item 3 by Board Member Russell with the second by Board Member Cheek. The vote was 6 -0 approved. Adjournment - 11:13 a.m. EXHIBIT 2 ORDINANCE NO. 2015- AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN INTERAGENCY COOPERATION CONTRACT BY AND BETWEEN THE UNIVERSITY OF TEXAS AT ARLINGTON AND THE CITY OF DENTON, TEXAS FOR A TERM OF THREE YEARS TO PROVIDE LANDFILL SAMPLING AND TESTING OF MINED MATERIALS; MONITORING GAS EMISSIONS DURING THE MINING PROCESS; MONITORING AND CHARACTERIZING STORM WATER AND LEACHATE; EVALUATING AND RECOMMENDING A DUST MANAGEMENT SYSTEM FOR MINING OPERATIONS; INVESTIGATE THE MINED SAMPLES; INVESTIGATE THE ENERGY POTENTIAL OF THE MINED MATERIALS; DEVELOP LANDFILL MINING PROTOCOL; MUNICIPAL SOLID WASTE (MSW) SAMPLING AND EVALUATION; AND DETERMINE MOISTURE CONTENT ANALYSIS DURING THE ONGOING ENHANCED LEACHATE RECIRCULATION (ELR) OPERATIONS FOR THE CITY OF DENTON LANDFILL IN AN AMOUNT NOT -TO- EXCEED $399,806; PROVIDING FOR RETROACTIVE APPROVAL, CONFIRMATION AND RATIFICATION THEREOF; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS; PROVIDING AN EFFECTIVE DATE (File 5892). WHEREAS, the Interagency Cooperation Contract (the "Contract ") by and between the City of Denton, Texas and The University of Texas at Arlington ( "UTA ") referenced herein, was presented to, reviewed by and considered by the Public Utilities Board (the "PUB ") at its regularly called meeting of July 13, 2015; and the PUB recommended approval of the Contract by a vote of 6 to 0; and WHEREAS, the City Council finds that the Contract will benefit the City of Denton, Texas and is in the public interest. WHEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby approves the Interagency Cooperation Contract by and between the City of Denton, Texas and The University of Texas at Arlington ( "UTA ") providing for a three -year engagement to provide for services pertaining to the City of Denton landfill, substantially in accordance with the Interagency Cooperation Contract which is attached hereto and incorporated herein by reference (the "Contract "). SECTION 2. The City Manager, or his designee, is authorized to execute the Contract on behalf of the City. The City Manager, or his designee, is authorized to carry out the City's rights and duties under the Contract. SECTION 3. The City Manager is hereby authorized to expend funds as required by the Contract. SECTION 4. This Contract is hereby approved, confirmed and ratified retroactively, to be effective as of June 10, 2015. I EXHIBIT 2 PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY T5 By: Contract No EXHIBIT 3 THE STATE OF TEXAS § THE COUNTY OF TRAVIS 6 INTERAGENCY COOPERATION CONTRACT THIS CONTRACT is entered into by and between the State agencies shown below as Contracting Parties under the authority granted and in compliance with the provisions of Chapter 771 of the Government Code. I. CONTRACTING PARTIES: The Receiving Agency The City of Denton The Performing Agency The University of Texas at Arlington STATEMENT OF SERVICES TO BE PERFORMED: The Performing Agency will undertake and carry out services described in Attachment A, Scope of Services. III. CONTRACT PAYMENT: The total amount of this contract shall not exceed $399,806 and shall conform to the provisions of Attachment B, Budget. Payments shall be billed quarterly basis (every three months). IV. TERM OF CONTRACT: Payment under this contract beyond the end of the current fiscal biennium is subject to availability of appropriated funds. If funds are not appropriated, this contract shall be terminated immediately with no liability to either party. This contract begins (May 01, 2015) when fully executed by both parties and terminates April 30, 2018. V. THE AGREEING PARTIES certify that: 1. The services specified above are necessary and essential for activities that are properly within the statutory functions and programs of the affected agencies of State Government. 2. The proposed arrangements serve the interest of efficient and economical administration of the State Government. 3. The services or resources agreed upon are not required by Article XVI, Section 21 of the Constitution of Texas to be supplied under contract given to the lowest responsible bidder. VI. LEGAL AUTHORITY: The Receiving Agency further certifies that it has the authority to request the above services by authority granted in Government Code Section 771.003 The Performing Agency further certifies that it has the authority to perform the services by authority granted in Texas Education Code Sections 65 and 68 and Government Code Chapter 771 This contract incorporates the provisions of Attachment A, Scope of Services, Attachment B, Budget, and Attachment C, General Terms and Conditions. THE UNDERSIGNED PARTIES bind themselves to the faithful performance of this contract. THE RECEIVING AGENCY Citv of Denton BY: AUTHORIZED SIGNATURE TYPED OR PRINTED NAME AND TITLE DATE: I 111a!"e THE PERFORMING AGENCY The University of Texas at Arlington NAME OF AGENCY BYE AUTHO ' IZED SIGNATURE Kelly Davis Vice President TYPED OR PRINTED NAME AND TITLE DATE: 07) EXHIBIT 3 Contract No ATTACHMENT A Interagency Cooperation Contract Scope of Services The scope of services outlines specific and general tasks in which the University of Texas at Arlington (UTA) may perform for the City of Denton (COD). The technical tasks under the contract are outlined here: flmffm��, �11101111Mffl, 1I• Task B I Studying the Market and Life Cycle Analyses of Mined Products Task 132 Investigating the Energy Potential of Degraded Mined Products Mo"it1,)rjjjU Moj�° tg_rg Lluring ELR _O 1) c Task C1 Sampling and Determining Physical Characteristics of Municipal Solid Waste (MSW) from Working Phase I ill I I i I I I, ill I, i I i I ill i I i I i I i I I I l I -0-i Ill 1-i 2 1 P a g e EXHIBIT 3 Contract No 1 1 Task Al Monitorin and Characterizing Mined Sa plea Specific tasks associated within this task are provided here: The UTA Team will: 1. Monitor landfill mining operation and collect mined samples for laboratory testing. Sample frequency will be determined based on the discussion with COD personnel. However, TCEQ's landfill mining guideline recommends collecting sample at each 5000 cubic yards. Both physical and chemical tests will be conducted on the collected samples. 2. Records daily mined volume, and calculate associated space gain from the mining operation. 3. Investigate and monitor the optimum waste slope during the mining, and determine optimum length and width of waste section for mining operation. 4. Monitor and plan for management of special waste. Task A2 Monitoring Gas Emission and its In I )ac!vof Waste Workers „during Mining Qperation Specific tasks associated within this task are provided here: The UTA Team will: 1. Monitor a wide variety of potentially toxic and odorous compounds during the mining operation. Sampling will be done using field equipment on a daily basis in the beginning. However, the sampling schedule may change after the initial period based on the discussion with COD Personnel. 2. Investigate remedial measures to mitigate the effects of these gases on worker's health and continue mining operation, if potential toxic elements are more than allowable level. 3. Monitor worker exposure to inhalable particulates using cascade impactors mounted on the worker's collar near his /her breathing space. Based on measurement results, any necessary mitigating measures, including worker personal protective equipment, will be recommended. Dispersion modeling will be conducted to determine potential impacts on the surrounding community. Task A3 Monitoring and Characterizing Storm Water and Leachate Specific tasks associated within this task are provided here: The UTA Team will: EXHIBIT 3 Contract No 1) Monitor leachate and storm water runoff during the mining operation. Potential storm water quality will be tested by collecting the runoff from the mining test cells, and identifying and quantifying contaminants using a liquid chromatograph coupled with a mass spectrometer. Sampling will be done using field equipment on a daily basis in the beginning. However, the sampling schedule may change after the initial period based on the discussion with COD 2) Conduct laboratory test to determine the leachate and storm water run off characteristics. 3) Based on measurement results, any needed mitigating measures, such as capture and treatment of storm water runoff, will be recommended. Task A4 Monitoring and Controlling Dust Specific tasks associated within this task are provided here: The UTA Team will: 1. Monitor dust during the landfill mining operation in the working face, and few other locations around the working face to monitor its radius of influence. 2. Investigate and recommend effective dust control system and check the efficiency of the dust control system. Based on the previous landfill mining projects, dust is a major concern during summer time and hot weather condition, and UTA team will work on different system for dust control and propose the most effective dust control system during mining for all weather condition. 3. Keep record of the dust control system and their effectiveness on regular basis. Investigate remedial measures to mitigate the effects of dust on worker's health and continue mining operation. Task B I Studying the Market and Life Cycle Analyses of Mined Products Specific tasks associated within this task are provided here: The UTA Team will: EXHIBIT 3 Contract No 1. Monitor landfill mining operation and collect mined samples for laboratory testing. Both fine grained or soil like material and coarse grained samples will be collected from top of trammel screen and bottom of trammel screen. 2. Conduct extensive laboratory testing for soil or soil like materials to determine its suitability for other landfill operation, such as daily cover for ongoing landfilling operation or using them for temporary pavement or berm construction. 3. Determine percentages of recovered plastics, glass, metal and other recovered materials, and investigate the reuse potential of these waste particles. 4. Conduct life cycle analyses of these waste components and determine energy saving potential of reusing these particles from landfill mining instead of using virgin materials. Also, investigate the greenhouse gas emission reduction potential of reusing mined waste particles. 5. Assess the cost and benefit that accounts broad environmental and social aspects of mining including the revenue from recovered recyclables, savings from new land purchase and transportation with associated cost savings in energy, GHGs emissions, and road maintenance, and impacts on surrounding property value, and job creation, etc. Based on the discussion with the COD personnel, the focus group interview and surveys may be taken to evaluate the impacts of the landfill mining in communities through qualitative measures. Task 132 Investig: )f 'Dgi-q (td Mned Products Specific tasks associated within this task are provided here: The UTA Team will: 1. Investigate the potential for soil like materials (mixed with degraded organic and paper products) to be utilized for making brick pallets for burning them as fuel. During landfill mining operation, in some cases more than 50% of material recovered is fine matter, and they are always mixed with other organic and degraded products. In Europe, many countries are converting these soils like materials as energy pallets, and utilizing them heating purpose during winter. 2. Determine the remaining energy potential of these pallets, and if suitable as energy pallet, investigate the market potential of this product. 3. Conduct life cycle analyses of these pallets and determine energy saving potential of reusing these particles from landfill mining instead of using virgin materials. Also, investigate the greenhouse gas emission reduction potential of reusing mined waste particles. Task 1.33 Developing Protocoll"or Future Landfill Mini nOP-eraclon Specific tasks associated within this task are provided here: 5 1 P a g e EXHIBIT 3 The UTA Team will: Contract No 1. Develop protocols for landfill mining operation, tailored to development status, geographic location, market for recovered materials, and availability of mining equipment. The mining protocol will include a safety protocol on potential health hazard consideration during mining on the solid workers and potentially affected community members. 2. Develop a contingency plan to guide workers and community members in case of emergency. '1':asl w'. S�aaNc Q °h.a.MCtt�risti s aaaatl aaita r iaa w PWlaist as °c t: oat�mt cl�rw iwa i+ l f. ( sa aa4ioa Based on the revised permit modification on ELR operation, dated Feb 2013, the sampling and characterizing solid waste samples from working face should be done on quarterly basis. Also, the moisture content and moisture monitoring during the ELR operation should be done on semi - annual basis. The following tasks are proposed for the ELR operation: Task C1 Sampling and Determining Physical Characteristics of Municipal Solid Waste (MSW) Specific tasks associated within this task are provided here: The UTA Team will: 1. Visit the landfall site and collect representative fresh MSW samples from the working face as well as compacted MSW samples from a specific landfall location. UTA will co- ordinate and work with the COD staff members during the sample collection. UTA will collect minimum 10 samples from the working face. The samples will be collected on quarterly basis. However, the number of compacted samples will be decided during the investigation and will be collected on annual basis. It is expected that COD staff members will help UTA during the sample collection from working face. It is also expected that COD staff will have drilling crew to drill compacted sample from a specific location as specified by TCEQ. 2. UTA will conduct laboratory investigations to determine moisture content and physical characteristics of solid waste. The experimental program is presented in Table 1. 3. Provide six monthly report on the laboratory investigations of MSW characteristics, 4. Submit final report summarizing the findings. The report will compile all the information disseminating from each task of the proposed work. 5. Attend technical meetings with consultants, or any other parties, as required or requested by the City personnel. EXHIBIT 3 Contract No Table 1 Experimental Program/Year Test Method Physical Composition Material Fresh and Compacted MSW Sampling Frequency Fresh MSW from working face will be collected on quarterly basis and compacted waste will No. of Tests Ix 10 10 Organic Content Fresh and Compacted 1 x 10 = 10 MSW be collected on annual basis. Moisture content will be Unit weight Fresh and Compacted 1 x 10 = 10 MSW determined on every three .._ .... ............................... .................. Moisture ...................... ............................ p.................. Fresh and Compacted months, i.e. (4 times a year). w 4 x 10 = 40 Content MSW However, other tests will be done on an annual basis. Task C2 Monitoring Moisture Content within the Landfill Solid Waste Specific tasks associated within this task are provided here: The UTA will: 1. Conduct extensive site investigations, including, the geophysical study of existing subsurface conditions using High Resolution Resistivity (HRR) equipment. These investigations will be conducted to characterize the subsurface moisture profile within and immediately surrounding the leachate recirculation pipe line or areas of interests. Resistivity Imaging should be done on quarterly basis (four times a year). 2. Conduct 2D and 3D resistivity imaging for the assessment of leachate recirculation system performance. The number of 2 -D lines and 3 -D profile will be determined during the investigation. The frequency of the resistivity imaging will be decided in consultation with the COD staff members. UTA will co- ordinate with the COD staff members during the investigation so that there will be no interruption of the ongoing landfill operations. Geophysical methods that the UTA shall use have the potential to provide an "image" of the subsurface. The UTA will use a multi - channel, multi- electrode automatic sequencing data acquisition system. 3. Process resistivity data using 2D Earth Imager and 3D Earth Imager computer software. The data will produce a 2D and 3D resistivity model of the subsurface moisture profile within the solid waste areas. The models will be displayed as color -coded profiles. The color -coded profiles will be processed and interpreted, with a final report. 4. Develop interpretations of the geophysical data collected to identify the subsurface and the following areas of need: 7 1 P a g e EXHIBIT 3 Contract No O Moisture profile within the leachate recirculation areas or within areas of concern. O Time lapse monitoring of moisture variation within the landfill cell areas and the effect of leachate recirculation on the solid waste. O Efficiency of the leachate recirculation systems. 5. Provide final report on the geophysical investigations conducted and interpretation results. 6. Attend technical meetings with consultants, or any other parties, as required or requested by the COD personnel. 1. Provide landfill mining equipment and personnel to support the collection of mined samples and provide adequate space for the conduct of waste characterization and other associated field support and laboratory service functions. 2. Provide adequate space in the mining and in the processing areas for UTA and Solid Waste Institute for Sustainability (SWIS) personnel to conduct those functions necessary for the completion of this scope of work. 3. Provide the use of Building 106, 1527 South Mayhill Road, Denton, Texas 76208 for UTA and SWIS personnel. 4. Provide the use of at least 3,800 square feet of office building and warehouse space in Building 101, 1001 South Mayhill Road for the use of UTA and SWIS personnel. During the project period, UTA will provide the following reports: 1. Annual reports will be provided for all the tasks. 2. Final report summarizing the major findings will be provided end of the project period. The final report will compile all the information disseminating from each task of the proposed work. 3. Work manual will be developed and standardized for each tasks. Li EXHIBIT 3 Contract No /r W.,TO I I ►A I o1►Y 8: Interagency Cooperation Contract Estimated Budget ' 0 1= ; �. This is a fixed price project with a total requested budget per year is presented here: Year 1: $ 132,177/= Year 2: $ 133,815/= Year 3: $ 133,815/= The requested budget will cover salary costs of project personnel (Principal Investigator, Graduate, and Undergraduate Students), material costs, and travel costs (trips to landfill sites for sample and data collections, and presentation of findings). Table 2 shows all budget items (as per UTA guidelines) and the corresponding allocations. Pr ject Duration The expected time to complete the project is 3 (Three) years. Year 1 Year 2 Year 3 Total Salary (PI + Graduate �... m Students) ..r.____ ..._ ... 78200 ......�......... � 79200 �w 79200 _. _ ._ .... 236,600 __. Fringe Benefits 13980 14280 14280 42,540 M &O -- Materials 500 500 500 1,500 Sub- Contracts vvv�......_ 0 Scholarships /Stipends ....... .. ...... ___...� 0 Tuition 9100 9100 9100 27,300 Participant Support 0 Tra)el (Domestic) 5000 5000 5000 15,000 Travel (Foreign) 0 Participant Tra\tel 0 Equipment 0 TDC 106780 108080 108080 322,940 MTDC 97680 98980 98980 295,6401 TFAC 25397 25735 ....... 25735 .. 76,866 TC 132177 133815 133815 399,806 Pr ject Duration The expected time to complete the project is 3 (Three) years. EXHIBIT 3 Contract No ATTACHMENT C Interagency Cooperation Contract General Terms and Conditions Article 1. Amendments This contract may only be amended by written agreement executed by both parties prior to the expiration of the contract. Article 2. Disputes To the extent authorized under the Constitution and laws of the State of Texas, the Performing Agency shall be responsible for the settlement of all contractual and administrative issues arising out of procurements entered in support of contract services. The Receiving Agency shall be responsible for the settlement of any dispute concerning this contract unless the dispute involves a subcontract. Article 3. Records and Ownership A. The Performing Agency agrees to maintain all books, documents, papers, accounting records, and other evidence pertaining to costs at its office during the contract period and for four years from the date of final payment under the contract. These materials shall be made available for inspection and copying by the Receiving Agency, by the State Auditor's Office, and by their authorized representatives. If the contract is federally funded, these materials shall also be made available for inspection and copying by the U.S. Department of Transportation and by the Office of the Inspector General. B. After completion or termination of this contract, all documents prepared by the Performing Agency or furnished to the Performing Agency by the Receiving Agency shall be delivered to and become the property of the Receiving Agency. All sketches, photographs, calculations, and other data prepared under this contract shall be made available, on request, to the Receiving Agency without restriction or limitation of further use. C. Subject to the Receiving Agency's license below, the Performing Agency retains all its intellectual property rights, including its copyright rights, in works, and shall own all title to, all interests in, all rights to, and all intellectual property (including copyrights, trade and service marks, trade secrets, and patentable devices or methods) developed as work product under this contract. Any intellectual property already owned by a party prior to any work associated with this contract, or developed independently of this contract or services performed under this contract, as modified, shall remain the respective property of the party from which it originates. Notwithstanding the foregoing, Receiving Agency shall have a right and non - exclusive license to use Performing Agency's work product pursuant to this contract under which services are performed for all purposes listed in this contract and for Receiving Agency, public health, and state governmental noncommercial purposes, including internal educational purposes. D. Except to the extent that a specific provision of this contract states to the contrary, all equipment purchased by the Performing Agency or its subcontractors under this contract shall be owned by the Receiving Agency and will be delivered to the Receiving Agency at the time the contract is completed or terminated. EXHIBIT 3 Contract No Article 4. Subcontracts A subcontract may not be executed by the Performing Agency without prior written authorization by the Receiving Agency. Subcontracts in excess of $25,000 shall contain all applicable terms and conditions of this contract. No subcontract will relieve the Performing Agency of its responsibility under this contract. Article 5. Termination This contract may be terminated by satisfactory completion of all services and obligations contained in this contract, by mutual written agreement, or by either party unilaterally after 30 days' written notice to the other party. The Receiving Agency shall compensate the Performing Agency only for those eligible expenses that are incurred during this contract and that are directly attributable to the completed portion of the work covered by this contract and only if the work has been completed in a manner satisfactory and acceptable to the Receiving Agency. The Performing Agency shall neither incur nor be reimbursed for any new obligations after the effective date of termination. Notwithstanding the foregoing, Receiving Agency shall compensate Performing Agency for all reasonable expenses incurred or committed to be expended as of the effective termination date, including salaries for appointees for the remainder of their appointment. Article 6. Gratuities Any person who is doing business with or who reasonably speaking may do business with the Receiving Agency under this contract may not make any offer of benefits, gifts, or favors to employees of the Receiving Agency. The only exceptions allowed are ordinary business lunches and items that have received the advanced written approval of the Executive Director of the Texas Department of Transportation. Article 7. No Assignment Neither party shall assign, sublet, or transfer any interest in this agreement. Article 8. Reference to Costs Principles and Circulars Reimbursement with state or federal funds will be limited to costs determined to be reasonable and allowable under cost principles establish in OMB Circular A -21, "Cost Principles for Educational Institutions," or OMB Circular A -87, "Cost Principles for State and Local Governments." The parties shall comply with the requirements of the Single Audit Act of 1984, P.L. 98 -502, ensuring that the single audit report includes the coverage stipulated in OMB Circular A -133. Article 9. Performing Agency Resources All employees of the Performing Agency shall have adequate knowledge and experience to enable them to perform the duties assigned to them. The Performing Agency certifies that it currently has adequate qualified personnel in its employment to perform the work required under this contract or will be able to obtain adequate qualified personnel from sources other than the Receiving Agency. On receipt of written notice from the Receiving Agency detailing supporting factors and evidence, the Performing Agency shall remove from the project any employee of the Performing Agency who is incompetent or whose conduct becomes detrimental to the work. Unless otherwise specified, the Performing EXHIBIT 3 Contract No Agency shall furnish all equipment, materials, supplies, and other resources required to perform the work. Article 10. Equal Employment Opportunity The Performing Agency agrees to comply with Executive Order 11246, entitled "Equal Employment Opportunity," as amended by Executive Order 11375 and as supplemented by Department of Labor regulations, 41 CFR Part 60. The Performing Agency agrees to consider minority universities for subcontracts when the opportunity exists. The Performing Agency warrants that it has developed and has on file appropriate affirmative action programs as required by applicable rules and regulations of the Secretary of Labor. Article 11. Nondiscrimination A. The Performing Agency shall comply with the regulations of the U.S. Department of Transportation relating to nondiscrimination in federally- assisted programs, including 49 CFR, Part 21; 23 CFR, Subchapter C; and 41 CFR, Part 60 -74 (the Regulations). B. The Performing Agency, with regard to the work performed during this agreement, shall not discriminate on the basis of race, color, sex, national origin, age, religion, or disability in the selection and retention of subcontractors, including procurements of materials and leases of equipment. C. In all solicitations either by competitive bidding or negotiation made by the Performing Agency for work to be performed under a subcontract, including procurements of materials and leases of equipment, but not including routine purchase orders, each potential subcontractor or supplier shall be notified by the Performing Agency of the Performing Agency's obligations under this agreement and the Regulations. D. The Performing Agency shall provide all information and reports required by the Regulations and directives issued under the Regulations and shall permit access to its books, records, accounts, other sources of information, and facilities as may be determined by the Texas Department of Transportation or the U.S. Department of Transportation to be pertinent to ascertain compliance with the Regulations or directives. If any information required of the Performing Agency is in the exclusive possession of another who fails or refuses to furnish this information, the Performing Agency shall so certify to the Texas Department of Transportation or the U.S. Department of Transportation, whichever is appropriate, and shall set forth what efforts the Performing Agency has made to obtain the requested information. E. In the event of the Performing Agency's noncompliance with the nondiscrimination provision of this agreement, the Texas Department of Transportation shall impose such sanctions as it or the U.S. Department of Transportation may determine to be appropriate. F. The Performing Agency shall include the provisions of paragraphs A through E in every subcontract, including procurements of materials and leases of equipment, except routine purchase orders, unless exempt by the Regulations or directives. The Performing Agency shall take such lawful action with respect to any subcontract or procurement as the Texas Department of Transportation may direct as a means of enforcing these provisions, including sanctions for noncompliance. In the event the Contract No EXHIBIT 3 Performing Agency becomes involved in or is threatened with litigation with a subcontractor or supplier as a result of directions given by the Receiving Agency, the Performing Agency may request the Texas Department of Transportation to enter into the litigation to protect the interests of the State. In addition, the Performing Agency may request the United States to enter into litigation to protect the interests of the United States. Article 12. Basis for Calculating Reimbursement Costs The Receiving Agency will reimburse the Performing Agency for actual costs incurred in carrying out the services authorized in Attachment A, Scope of Services, subject to the cost categories and estimated costs set forth in Attachment B, Budget. The Receiving Agency shall compensate the Performing Agency for only those eligible expenses incurred during this contract that are directly attributable to the completed portion of the work covered by this contract, provided that the work has been completed in a manner satisfactory and acceptable to the Receiving Agency. The Performing Agency shall not incur or be reimbursed for any new obligations after the effective date of termination. The Performing Agency shall bill the Receiving Agency for actual travel expenses, not to exceed the limits reimbursable under state law. Out -of -state or out -of- country travel by the Performing Agency requires prior approval by the Receiving Agency. Article 13. Funding The Receiving Agency shall pay for services received from appropriation items or accounts of the Receiving Agency from which like expenditures would normally be paid. Payments received by the Performing Agency shall be credited to the current appropriation items or accounts from which expenditures of that character were originally made. If for any reason subcontractors and suppliers, if any, are not paid before the Receiving Agency reimburses the Performing Agency for their services, the Performing Agency shall pay the subcontractors and suppliers all undisputed amounts due for work no more than 10 days after the Performing Agency receives payment for the work unless a different time is specified by law. This requirement also applies to all lower -tier subcontractors and suppliers and must be incorporated in all subcontracts. If the Performing Agency fails to comply with this Article, the Receiving Agency may withhold payments and suspend work until the subcontractors and suppliers are paid. The Performing Agency is authorized to submit requests for reimbursement no more frequently than monthly and no later than ninety (90) days after costs are incurred. Article 14. Conflict of Interest The Performing Agency shall not assign an employee to a project if the employee: 1. owns an interest in or is an officer or employee of a business entity that has or may have a contract with the state relating to the project; 2. has a direct or indirect financial interest in the outcome of the project; 3. has performed services regarding the subject matter of the project for an entity that has a direct or indirect financial interest in the outcome of the project or that has or may have a contract with the Receiving Agency; or 4. is a current part-time or full -time employee of the Receiving Agency. Article 15. Additional Work C17l EXHIBIT 3 Contract No A. If the Performing Agency is of the opinion that any assigned work is beyond the scope of this contract and constitutes additional work, it shall promptly notify the Receiving Agency in writing. The written notice shall present the relevant facts and show how the work constitutes additional work. B. If the Receiving Agency in its sole discretion finds that the work does constitute additional work, the Receiving Agency shall so advise the Performing Agency and a written amendment will be executed. The Performing Agency shall not perform any proposed additional work or incur any additional costs before the execution of an amendment. C. The Receiving Agency shall not be responsible for actions by the Performing Agency or for any costs incurred by the Performing Agency relating to additional work that is performed before an amendment is executed or that is outside the scope of the contract, as amended. Article 16. Nonconforming Work If the Performing Agency submits work that does not comply with the terms of this contract, the Receiving Agency shall instruct the Performing Agency to make any revisions that are necessary to bring the work into compliance with the contract. Performing Agency at its discretion may agree to any Receiving Agency requested change, and if Performing Agency agrees to provide changed Services, Receiving Agency agrees to reimburse Performing Agency for such changed or additional work in such amounts as may be agreed by Performing Agency, consistent with customary practice and Performing Agency policy. Notwithstanding this Article or anything else in this contract or in these General Terms and Conditions, Performing Agency does not guarantee specific results. Article 17. Notice to Proceed If Attachment A requires a notice to proceed, the Performing Agency shall not proceed with any work or incur any costs until the Receiving Agency issues a written notice to the Performing Agency authorizing work to begin. Any costs incurred by the Performing Agency before receiving the notice are not eligible for reimbursement. Article 18. Authority of State Auditor The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Article 19. Compliance with Laws The parties shall comply with all applicable federal, state, and local laws, statutes, ordinances, rules, and regulations and with the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of this agreement. After receiving a written request from the Receiving Agency, the Performing Agency shall furnish the Receiving Agency with satisfactory proof of its compliance with this Article. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -601, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: August 4, 2015 SUBJECT Consider adoption of an ordinance accepting competitive proposals and awarding a contract for the purchase of electric substation and transmission line easement site preparation services for the City of Denton; and providing an effective date (RFP 5761- awarded to Mann Robinson and Son, Inc. in the three (3) year not -to- exceed amount of $21,990,000). The Public Utilities Board recommends approval (4 -0). RFP INFORMATION Denton Municipal Electric (DME) has several transmission line and substation projects approved in its five (5) year Capital Improvement Plan. Substation sites will require a number of activities including clearing, stripping, import, export, cutting, filling, grading, and compaction, to structure the site in accordance with the project grading plan prior to the start of construction. Drainage and access installation may also be required. Site work, such as clearing, grading, access preparation, debris removal, and drainage work, may be required on transmission line easements prior to construction. RFP 45761 was structured to obtain a variety of unit prices for all aspects of site preparation work that could be used for multiple projects over time. This contract will not be exclusive, will not obligate DME to expend any minimum amount, and can be terminated at any time with notice. Purchase orders will be issued for each project based on the unit prices and the engineer's estimate of the work required. Requests for Proposals were sent to 533 prospective suppliers. In addition, specifications were placed on the Materials Management website for prospective suppliers to download and advertised in the local newspaper. Four (4) proposals meeting specification were received. The proposals were evaluated based upon published criteria including price, delivery timeframe, compliance with specifications, and indicators of probable performance. Line Item 437, Asbestos Abatement, was removed during the evaluation process. The variance in proposer's pricing and difficulty in evaluating unknown asbestos remediation resulted in the abatement not being included in this contract. This item will be quoted on an as needed basis. A Best and Final Offer was conducted with the highest ranked offeror -Mann Robinson and Son, Inc. (Mann Robinson) which resulted in the consolidation of Line Item# 21 and 22 into Line Item# 20. This will allow for better flexibility when structuring the work schedule for these items. Three new Line Items -48a, 54, and 55, were also added to the pricing sheet as part of the Best and Final Offer negotiation process. Mann Robinson and Son, Inc. was ranked the highest and determined to be the best value for the City of Denton. Mann Robinson and Son, Inc. has been successfully providing site preparation services for DME Capital Improvement Projects City of Denton Page 1 of 2 Printed on 7/30/2015 File #: ID 15 -601, Version: 1 since 2013. RECOMMENDATION Award to Mann Robinson and Son, Inc. in the three (3) year not -to- exceed amount of $21,990,000. This amount includes a contingency for upcoming substation construction requirements. PRINCIPAL PLACE OF BUSINESS Mann Robinson and Son, Inc. Aubrey, TX ESTIMATED SCHEDULE OF PROJECT This is an initial one (1) year contract with options to extend the contract for two (2) additional one (1) year periods, with all terms and conditions remaining the same. FISCAL INFORMATION The costs for these services will be funded from Electric Capital Project accounts on an as needed basis. The work proposed will be in the transmission category. These costs for transmission projects will ultimately be recovered through the Public Utility Commission Transmission Cost of Service Program (TCOS). EXHIBITS Exhibit l: Evaluation/Ranking sheet Exhibit 2: Public Utilities Board Draft Minutes Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance For information concerning this acquisition, contact: Chris Lutrick at 349 -7152. City of Denton Page 2 of 2 Printed on 7/30/2015 O M O O O O O m m M O O O O O O M O O O O O O O O O N = k u H K � C }' G D d •� � y O M O O l N M O M M M tY �n l M M M l O O O tY O O N U C M • M t 'CY �D � N m N M M -- N r r 'CY O O O m O O M -- r N N Y� O d O O O O 7 O O O o0 00 O O O O O O O O 7 M O 1 O O r O O � C1% m cY 4? O i ii d ' Y N Ri vii O -y LL O O O O M C n O O I . 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O � v s 3 °' kh 5p kh 5p t° ^c c° c. o. v •a a. O � � m o Q Q o 0 ° by by Q Q O N N N N N N N c c o u v o 0 0 0 0 0 0 o 0 v v o Tmm H' M Vi M �D M l� M M � M O H' k a W N O o6 N n u H � C C O }' O C O O 0 Iq r1 N ti � 01 Wy TJ H O C •� H i. C R Q � q O C o O 44Y w Cu o dT M R d 7M � •- N N '�Gt SOi O w �000w o .0 C p„ a m � V1 CL c Q I� a 4z c ° x o 3 u m c„ C ° c b v �o rz w o Q A m a V a a F H a N N N 111 rl EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD July 27, 2015 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, July 27, 2015 at 9:02 a.m. in the Service Center Training Room, City of Denton Service Center, 901 Texas Street, Denton, Texas. Present: Vice Chair Billy Cheek, Secretary Randy Robinson, Barbara Russell and Lilia Bynum Ex Officio Members: George Campbell, City Manager and Howard Martin, ACM Utilities Absent: Chairman Dick Smith, Phil Gallivan and Charles Jackson OPEN MEETING: ITEMS FOR INDIVIDUAL CONSIDERATION: 8. Consider recommending approval of a contract with Mann Robinson & Sons, Inc., Aubrey, Texas, for procurement of services and materials to prepare substation sites and transmission line easements for construction in an amount not to exceed $21,990,000 (RFP 45761). Chris Lutrick, Engineer IV DME, made the presentation. This item is RFP 5761 for substation and site preparation. There is an existing contract in place that was RFP 5086 that came before this Board at the end of 2012 and put into place February 2013. That contract is nearing the end. The new RFP went out to replace the contract, it is a three year not to exceed contract for $21,990,000. The overview will include CIP projects, summary of proposals, recent project constructed by Mann Robinson, and cost summary of services. Lutrick showed the map of the remaining ten substations that are to be constructed with six sections of transmission line. There were four proposals received, with three quality proposals. They were similar in pricing. Mann Robinson had the original contract and came in with the highest scoring option. Since this is a construction contract, DME was only allowed to negotiate with the top firm which was Mann Robinson. Mann Robinson has completed the following five projects Cooper Creek Substation - $560,565 Pockrus Substation - $222,555 McKinney Substation - $613,563 Kings Row Substation - $438,998 Arco Substation - $595,362 Draft Minutes of the Public Utilities 13oarcVXf i&JT 2 July 27, 2015 Page 2 of 2 The first three are 100 percent completed. The Kings Row Substation has site work completed, rock will be added at the end of the year. Arco project is finishing up the site work as well. There was a list of the components that are included in the preparation work. Installation of Erosion Control materials; $540,000 (estimated) Tree Removal (substation and transmission line); $475,000 (estimated) Structure Demolition; $1.4 million (estimated) Site Clearing; $483,000 (estimated) Excavation and Spoil Removal; $4.4 million (estimated) Import Fill Material and Compaction; $7.5 million (estimated) Substation Rock (provide and place); $5.2 million (estimated) Road Construction (new R.D Wells access road); $965,000 (estimated) With no further questions a motion was made by Board Member Russell with a second by Board Member Bynum. Vote 4 -0 approved. Adjournment - 10:04 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE PROPOSALS AND AWARDING A CONTRACT FOR THE PURCHASE OF ELECTRIC SUBSTATION AND TRANSMISSION LINE EASEMENT SITE PREPARATION SERVICES FOR THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE (RFP 5761- AWARDED TO MANN ROBINSON AND SON, INC. IN THE THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $21,990,000). WHEREAS, the City has solicited, received and evaluated competitive sealed proposals for Electric Substation and Transmission Line Easement Site Preparation Services in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and reviewed and recommended that the herein described proposals are the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The items in the following numbered request for proposal for materials, equipment, supplies or services, shown in the "Request for Proposals" on file in the office of the Purchasing Agent, are hereby accepted and approved as being the most advantageous to the City considering the relative importance of price and the other evaluation factors included in the request for proposals. RFP NUMBER CONTRACTOR AMOUNT 5761 Mann Robinson and Son, Inc. $21,990,000 SECTION 2. By the acceptance and approval of the above numbered items of the submitted proposals, the City accepts the offer of the persons submitting the proposals for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Proposal Invitations, Proposals, and related documents. SECTION 3. Should the City and person submitting approved and accepted items and of the submitted proposals wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the proposals, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quantities and specified sums contained in the Proposal and related documents herein approved and accepted. EXHIBIT 3 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 File 5761 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved proposals. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY _ A BY: EXHIBIT 4 CONTRACT BY AND BETWEEN CITY OF DENTON, TEXAS AND MANN ROBINSON & SON, INC (RFP 5761) THIS CONTRACT is made and entered into this date _.. mmITm , by and between Mann Robinson & Son, Inc a corporation, whose address is 7066 Rhoads Rd., Aubrey, TX 76227, hereinafter referred to as "Contractor," and the CITY OF DENTON, TEXAS, a Texas Municipal Corporation and Home -Rule City, hereinafter referred to as "City," to be effective upon approval of the Denton City Council and the subsequent execution of this Contract by the Denton City Manager or his duly authorized designee. For and in consideration of the covenants and agreements contained herein, and for the mutual benefits to be obtained hereby, the parties agree as follows: SCOPE OF SERVICES Contractor shall provide construction services in accordance with the City's RFP # 5761 - Substation and Transmission, Line Easement Site Preparation Services, a copy of which is on file at the office of Purchasing Agent and incorporated herein for all purposes as "Exhibit C ". The Contract consists of this written agreement and the following items which are attached hereto and incorporated herein by reference: (a) Special Terms and Conditions (Exhibit "A "); (b) Individual Project Initiation Process (Exhibit "B "); (c) City of Denton Request for Proposal # 5761 (Exhibit "C ") (d) City of Denton Standard Terms and Conditions (Exhibit "D "); (e) Insurance Requirements (Exhibit "E "); (f) Contractor's Proposal. (Exhibit "F "); These documents make up the Contract documents and what is called for by one shall be as binding as if called for by all. In the event of an inconsistency or conflict in any of the provisions of the Contract documents, the inconsistency or conflict shall be resolved by giving precedence first to this written Contract, and then to the contract documents in the sequential order in which they are listed above. These documents shall be referred to collectively as "Contract Documents." IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. File 5761 EXHIBIT 4 "CONTRACTOR" S, t-e4j C, BY: ," LtA"N"N' oy AUTHORIZED SIGNATURE TYPED NAME: i kv) i-)..ob,1 y1s0y1 TITLE:- PHONE NUMBER E -MAIL DT 1 1. -SS ATTEST:, By: 6 4 d i k--l. CITY OF DENTON, TEXAS A Texas Municipal Corporation m- ATTEST: JENNIFER WALTERS, CITY SECRETARY .0 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY m File 5761 GEORGE C. CAMPBELL CITY MANAGER EXHIBIT 4 EXHIBIT A SPECIAL TERMS AND CONDITIONS TOTAL CONTRACT AMOUNT The contact total for services shall not exceed $21,990,000. Pricing shall be per Exhibit F attached. CONTRACT TERM The contract term shall be for a one (1) year from the date of award. The City and the Awarded Contractor shall have the option to renew this contract for an additional two (2) one -year periods. The Contract shall commence upon the issuance of a Notice of Award by the City of Denton and shall automatically renew each year, from the date of award by City Council, unless either party notifies the other prior to the scheduled renewal date in accordance with the Exhibit B. At the sole option of the City of Denton, the Contract may be further extended as needed, not to exceed a total of six (6) months. PRICE ADJUSTMENTS Prices for the commodities or services described must be firm for a period of one year from date of contract award. Any request for price adjustment must be based on the U.S. Energy Information Administration (EIA) prior 52 week average for Midwest (PADD 2) for retail diesel (on- highway) — all types 2) U.S Department of Labor, Bureau of Labor Statistics, Employment Cost Index (ECI) for Total Compensation, Private Industry Construction Workers (CIU2012300000000A) as found at (http: / /www.bis.gov),. The price will be increased or decreased based upon the annual percentage change in the PPI:, The maximum escalation will not exceed +/- 8% for any individual year. The escalation will be determined annually at the renewal date. Should the PPI change exceed a minimum threshold value of + / -1 %, then the stated eligible prices shall be adjusted in accordance with the PPI change not to exceed the 8% limit per year. The supplier should provide documentation as percentage of each cost associated with the unit prices quoted for consideration. Request must be submitted in writing with supporting evidence for need of such increase to the Purchasing Manager at least 60 days prior to contract expiration of each year. Respondent must also provide supporting documentation as justification for the request. Upon receipt of such request, the City of Denton reserves the right to either: accept the escalation as competitive with the general market price at the time, and become effective upon the renewal date of the contract award or reject the increases within 30 calendar days after receipt of a properly submitted request. If a properly submitted increase is rejected, the Contractor may request cancellation of such items from the Contract by giving the City of Denton written notice. Cancellation will not go into effect for 15 calendar days after a determination has been issued. Pre -price increase prices must be honored on orders dated up to the official date of the City of Denton approval and/or cancellation. File 5761 EXHIBIT 4 The request can be sent by e-mail to: purchasing@cityofdenton.com noting the solicitation number. The City of Denton reserves the right to accept, reject, or negotiate the proposed price changes. SCOPE MODIFICATION The following new scope is added to describe new line items on the pricing sheet in Exhibit E. Line 48a. Place Open Graded Rock in Open Area The specifications and scope of work shall be as stated for Place Open Graded Rock Under Structures with the exception of any work conditions and /or performance related to placing the rock under structures. Except for foundations, there will be no vertical structures on the site within the area to place the open graded rock. Line 54. Truck Hauling at Transmission Pole Sites This item includes mobilization/demobilization, loading and hauling of stocked piled spoils from transmission line pole foundation site preparation and drilling operations, and brooming the street if necessary at the stockpile area and /or sidewalk. Spoils that are suitable soils shall be hauled to a location as directed by the City. Unsuitable spoils shall be hauled off site and disposed of by the contractor. All spoils shall be removed from the site. Line 55. Refreshing Construction Entrances This item includes mobil ization/demobilization, moving, raking and or adding additional rock to existing construction entrances. Any rock that is added would be billed at the tonage added. File 5761 EXHIBIT 4 EXHIBIT B Individual Project Initiation Process Electric Utility Overhead Transmission Line Construction and Maintenance Services This section establishes the process whereby individual transmission construction projects will be initiated. It is a general outline of the steps to be taken in setting project construction schedules and establishing project prices. The steps are generally in order of occurrence; however, nothing herein precludes the parties from agreeing to an amended approach for any given project. 1. The starting point for the process shall be when the project plans are delivered to the contractor by DME with indication of a preferred start date. The preferred start date shall not be less than 30 calendar days from the date the plans are delivered to the contractor. Longer planning periods are permissible. Project plans shall include a list of owner furnished material and projected dates of availability and a status of the site preparation. DME and the contractor will coordinate, to the extent feasible, in the development phases of projects to better facilitate planning for both parties. Benefits could be realized in long range budget forecasting, better project timing, constructability planning, and in coordinating and optimizing contractor resources and availability. 2. The contractor shall acknowledge receipt of the plans, indicate acceptance of the planned start date or propose an alternate start date, and shall propose a preconstruction conference to discuss the project. The preconstruction conference shall be scheduled not less than 14 calendar days before the preferred start date. 3. At the preconstruction conference, the following actions are expected: a. The contractor shall provide: 1) A formal estimate of the cost based on the contract unit costs in force at the time of the notice based on the units shown on the project plans 2) A proposed time to be allowed for construction at the preconstruction conference 3) A project plan for the construction 4) A list of classification and quantity of expected personnel that will be assigned to the project 5) A list of the type and quantity of expected equipment that will be assigned to the project 6) Indicate a date when bonds may be expected to be received by Purchasing if the project is over $50,000 7) Raise any issues of concern b. DME shall provide: 1) Revised project plans, if any 2) A description of the project and constraints and answer questions 3) An updated list of owner furnished materials and projected dates of availability if there have been any changes from the initial list 4) An estimate of cost based on the units shown on the plans 5) An update to the status of site preparation if there have been any changes File 5761 EXHIBIT 4 6) Raise any issues of concern c. Jointly, both parties shall (some items may require additional time after the preconstruction conference for resolution. Resolution must be achieved before the purchase order can be issued): 1) Review the project plan 2) Attempt to arrive at a final cost estimate 3) Establish a formal project start for mobilization 4) Establish a formal project time for construction 5) Attempt to resolve concerns on all issues or agree on a process and time for resolving issues 3. After a formal start date and pricing are established: a. DME will enter the requisition for the purchase order based on the agreed pricing. b. The contractor shall provide bonds to Purchasing at 901 B Texas Street, Denton TX 76209. c. Purchasing shall acknowledge receipt of bonds via email to the contractor and DME. d. Purchasing shall issue the purchase order with 5% retainage which shall serve as the official notice to proceed. File 5761 EXHIBIT 4 EXHIBIT D Invoices, Payments, and Releases 1. INVOICES AND PAYMENT PROCESSING: Payment Processing: The City review, inspection, and processing procedures for invoices ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals which call for payment before thirty (30) days from receipt of invoice, or cash discounts given on such payment, will be considered only if, in the opinion of the Purchasing Manager, the review, inspection, and processing procedures can be completed as specified. It is the intention of the City of Denton to make payment within thirty days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The 30 day processing period for invoices will begin on the date the invoice is received or the date the items or services are received, whichever is later. Direct deposit for Payments: Contractors are encouraged to arrange for receiving payments through direct deposit. Information regarding direct deposit payments is available from the City of Denton Purchasing website: www.dentonpurchasing.com. Invoices: Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201 -4299 with a copy to the attention of Chris Lutrick, City of Denton Electric Department, 1701C Spencer Road, , Denton, TX 76209. The copy may also be emailed to Mr. Lutrick at chris.lutrick @cityofdenton.com. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. Invoices for partial payments on construction projects should normally be presented for payment within the first five days of the month, and submitted on the Pay Application Form. 2. TAX EXEMPTION: The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing work under this contract for the City of Denton may purchase materials and supplies and rent or lease equipment sales tax free. This is accomplished by issuing exemption certificates to suppliers. Certificates must comply with State Comptroller's ruling #95 -0.07 and #95 -0.09. 3. PAYMENTS TO CONTRACTORS: A. Upon presentation of valid invoices, which should be within the first week of each month, the Owner shall make partial payments to the Contractor for construction accomplished during the preceding calendar month on the basis of completed construction certified to by the Contractor and approved by the Owner and Architect/Engineer solely for the purposes of payment: Provided, however, that such approval shall not be deemed approval of the workmanship or materials. Only ninety- five percent (95 %) of each payment request approved during the construction of the project shall be paid by the Owner to the Contractor prior to completion of the project. Upon the approval by the Owner of the Contractor's "Final Invoice for Payment" File 5761 EXHIBIT 4 showing the total cost of the construction performed, the Owner shall make payment to the Contractor of all amounts to which the Contractor shall be entitled there under which shall not have been paid: Provided, however, that such final payment shall be made not later than ninety (90) days after the date of completion of construction of the project, as specified in the Final Invoice for Payment, unless withheld because of the fault of the Contractor. B. The Contractor shall be paid on the basis of the percentage of the work actually completed for each construction item. The total amount paid for periodic billings shall not exceed the maximum contract price for the construction of the project as set forth in the contract, unless such excess shall have been approved in writing by the Purchasing Agent as part of a change order. C. No payment shall be due while the Contractor is in default in respect of any of the provisions of this contract, and the Owner may withhold from the Contractor the amount of any claim by any third party against either the Contractor or the Owner based upon an alleged failure of the Contractor to perform the work hereunder in accordance with the provisions of this contract. This includes alleged failure of the Contractor to make payments to subcontractors. 4. RELEASE OF LIENS AND CERTIFICATE OF CONTRACTOR: Upon award of the contract, the Contractor shall inform the Owner of the subcontractors and material sources that will be used. Upon the completion by the Contractor of the construction of the project, but prior to final payment to the Contractor, the Contractor shall deliver to the Owner releases of all liens, and of rights to claim any lien, from all manufacturers, material -men, and subcontractors furnishing services or materials for the project, to the effect that all materials or services used on or for the project have been paid for and indicating that the Owner is released from all such claims. 5. PAYMENTS TO MATERIAL -MEN AND SUBCONTRACTORS: The Contractor shall pay each material -men, and each subcontractor, if any, not later than five (5) days after receipt of any payment from the Owner, the amount thereof allowed the Contractor for and on account of materials furnished or construction performed by each material -men or each subcontractor. 6. REMEDIES: A. Completion of Contractor's Default If default shall be made by the Contractor or by any subcontractor in the performance of any of the terms of this proposal, the Owner, without in any manner limiting its legal and equitable remedies in the circumstances, may serve upon the Contractor and the Surety or Sureties upon the Contractor's bond or bonds a written notice requiring the Contractor to cause such default to be corrected forthwith. Unless within twenty (20) days after the service of such notice upon the Contractor such default shall be corrected or arrangements for the correction thereof satisfactory to the Owner and /or Engineer shall be made by the Contractor or its Surety or Sureties, the Owner may take over the construction of the project and prosecute the same to completion by contract or otherwise for the account and at the expense of the Contractor, and the Contractor and its Surety or File 5761 EXHIBIT 4 Sureties shall be liable to the Owner for any cost or expense in excess of the contract price occasioned thereby. In such event the Owner may take possession of and utilize, in completing the construction of the project, any materials, tools, supplies, equipment, appliances, and plant belonging to the Contractor or any of its subcontractors, which may be situated at the site of the project. The Owner in such contingency may exercise any rights, claims or demands which the Contractor may have against third persons in connection with this contract and for such purpose the Contractor does hereby assign, transfer and set over unto the Owner all such rights claims and demands. B. Liquidated Damages The time of the completion of construction of the project is of the essence of the contract. Should the Contractor neglect, refuse or fail to complete the construction within the time herein agreed upon, after giving effect to extensions of time, if any, herein provided, then, in that event and in view of the difficulty of estimating with exactness damages caused by such delay, the Owner shall have the right to deduct from and retain out of such money which may be then due or which may become due and payable to the Contractor the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) per day for each and every day, including weekends, that such construction is delayed on its completion beyond the specified time, as liquidated damages and not as a penalty; if the amount due and to become due from the Owner to the Contractor is insufficient to pay in full any such liquidated damages, the Contractor shall pay to the Owner the amount necessary to effect such payment in full: Provided, however, that the Owner shall promptly notify the Contractor in writing of the manner in which the amount retained, deducted or claimed as liquidated damages was computed. C. Cumulative Remedies Every right or remedy herein conferred upon or reserved to the Owner shall be cumulative, shall be in addition to every right and remedy now or hereafter existing at law or in equity or by statute, and the pursuit of any right or remedy shall not be construed as an election. Provided, however, that the provisions of the REMEDIES SECTION shall be the exclusive measure of damages for failure by the Contractor to complete the construction of the project within the time herein agreed upon. File 5761 EXHIBIT 4 CITY OF DENTON GENERAL CONDITIONS FOR CONSTRUCTION ARTICLE 1 GENERAL PROVISIONS GENERAL DEFINITIONS 1.1 The following definitions apply throughout these General Conditions and to the other Contract Documents: a) THE CONTRACT DOCUMENTS The Contract Documents consist of the formal Building Construction Services Agreement between the Owner and the Contractor, these General Conditions and other supplementary conditions included by special provisions or addenda, drawings, specifications, addenda issued prior to execution of the Contract, other documents listed in the Contract, and Amendments issued after execution of the Contract. For purposes of these General Conditions, an Amendment is: (1) a written Supplemental Agreement to the Contract signed by authorized representatives of both parties; (2) a Change Order, including Change Orders signed only by the Owner as described in Subparagraph 7.1(b) and Subparagraph 7.1(e); or (3) a written order for a minor change in the Work issued by the Architect/Engineer as described in Paragraph 7.3. The Contract Documents also include bid documents such as the Owner's Instructions to Bidders, sample forms, the Contractor's Bid Proposal and portions of addenda relating to any of these documents, and any other documents, exhibits or attachments specifically enumerated in the Building Construction Services Agreement, but specifically exclude geotechnical and subsurface reports that the Owner may have provided to the Contractor. b) THE CONTRACT The Contract Documents, as defined in Paragraph 1.1, are expressly incorporated into and made a part of the formal Building Construction Services Agreement between the Owner and the Contractor by reference in this Paragraph and Paragraph 1.1 (which documents are sometimes also referred to collectively in these General Conditions as the "Contract "). The Contract Documents represent the entire and integrated agreement between the Owner and the Contractor and supersede all prior negotiations, representations or agreements, either written or oral. The terms and conditions of the Contract Documents may be changed only by an Amendment. The Contract Documents shall not be construed to create a contractual relationship of any kind: (1) between the Architect/Engineer and Contractor; (2) between the Owner and a Subcontractor or Sub - subcontractor; or File 5761 EXHIBIT 4 (3) between any persons or entities other than the Owner and Contractor.. The Architect/Engineer shall, however, be entitled to performance and enforcement of obligations under the Contract Documents intended to facilitate performance of the Architect/Engineer's duties. c) THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all labor, materials, equipment, and services provided or to be provided by the Contractor, or any Subcontractors, Sub - subcontractors, material suppliers, or any other entity for whom the Contractor is responsible, to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. d) THE PROJECT The Project is the total construction more particularly described in the Building Construction Services Agreement, of which the Work performed under the Contract Documents may be the whole or a part of the Project and which may include construction by the Owner or by separate contractors. All references in these General Conditions to or concerning the Work or the site of the Work will use the term "Project," notwithstanding that the Work may only be a part of the Project. e) THE DRAWINGS The Drawings (also known as the "Plans ") are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams. fj THE SPEC]FICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work, performance of related services, and other technical requirements. g) THE PROJECT MANUAL The Project Manual is the volume or volumes which contain the bidding requirements, sample forms, General Conditions for Building Construction, special provisions, and Specifications. The Project Manual may be modified by written addendums issued by the Owner during bidding, in which case the written addendums become a part of the Project Manual upon their issuance, unless otherwise indicated by the Owner in writing. h) ALTERNATE An Alternate is a variation in the Work on which the Owner requires a price separate from the City Building General Conditions Base Bid. If an Alternate is accepted by the Owner, the variation will become a part of the Contract through the execution of a change order or amendment to the Contract and the Base Bid will be adjusted to include the amount quoted. If an alternate is accepted by the Owner, and later deleted prior to any File 5761 EXHIBIT 4 Work under the alternate being performed or materials delivered to the Project site, the Owner will be entitled to a credit in the full value of the alternate as priced in the Contractor's Bid. i) BASE BID The Base Bid is the price quoted for the Work before Alternates are considered. j) HAZARDOUS SUBSTANCE The term Hazardous Substance is defined to include the following: (1) any asbestos or any material which contains any hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non - friable; (2) any polychlorinated biphenyls ( "PCBs "), or PCB - containing materials, or fluids; (3) radon; (4) any other hazardous, radioactive, toxic or noxious substance, material, pollutant, or solid, liquid or gaseous waste; (5) any pollutant or contaminant (including but not limited to petroleum, petroleum hydrocarbons, petroleum products, crude oil or any fractions thereof, any oil or gas exploration or production waste, any natural gas, synthetic gas or any mixture thereof, lead, or other toxic metals) which in its condition, concentration or area of release could have a significant effect on human health, the environment, or natural resources; (6) any substance that, whether by its nature or its use, is subject to regulation or requires environmental investigation, monitoring, or remediation under any federal, state, or local environmental laws, rules, or regulations; (7) any underground storage tanks, as defined in 42 U.S.C. Section 6991(1)(A)(I) (including those defined by Section 9001(1) of the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; the Texas Water Code Annotated Section 26.344; and Title 30 of the Texas Administrative Code Sections 334.3 and 334.4), whether empty, filled or partially filled with any substance; and (8) any other hazardous material, hazardous waste, hazardous substance, solid waste, and toxic substance as those or similar terms are defined under any federal, state, or local environmental laws, rules, or regulations. k) OTHER DEFINITIONS As used in the Contract Documents, the following additional terms have the following meanings: File 5761 EXHIBIT 4 (1) "provide" means to furnish, install, fabricate, deliver and erect, including all services, materials, appurtenances and other expenses to complete in place, ready for operation or use; (2) "shall" means the action of the party to which reference is being made is mandatory; (3) "as required" means as prescribed in the Contract Documents; and (4) "as necessary" means all action essential or needed to complete the work in accordance with the Contract Documents and applicable laws, ordinances, construction codes, and regulations. 1.2 EXECUTION, CORRELATION AND INTENT (a) The Building Construction Services Agreement shall be signed by duly authorized representatives of the Owner and Contractor as provided in the Agreement. (b) Execution of the Building Construction Services Agreement by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions, including but not limited to subsurface conditions, under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. (c) The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. (d) Organization of the Specifications into divisions, sections, and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. (e) Unless otherwise stated in the Contract Documents, words which have well -known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. (f) The Drawings and Specifications are intended to agree with one another, and Work called for by Drawings and not mentioned in Specifications, or vice versa, shall be furnished as if set forth by both. Specifications shall govern materials, methods and quality of work. In the event of a conflict on the Drawings between scale and dimension, figured dimensions shall govern over scale dimensions and large scale drawings shall govern over small scale drawings. Conflict between two or more dimensions applying to a common point shall be referred to the Architect/Engineer /Engineer for final adjustment. If discrepancies or conflicts occur within or between the Drawings and Specifications regarding the Work, or within or between other Contract Documents, the Contractor shall File 5761 EXHIBIT 4 not perform such Work without having obtained a clarification from the Architect/Engineer and resolution by the Owner. The Owner's decision as to the appropriate resolution of a conflict or discrepancy shall be final. Should the Drawings or the Specifications disagree within themselves or with each other; the Base Bid will be based on the most expensive combination of quality and quantity of Work indicated. (g) Deviations from Contract Documents shall be made only after written approval is obtained from Architect/Engineer and Owner, as provided in Article 7. (h) The intention of the Contract Documents is to include all materials, labor, tools, equipment, utilities, appliances, accessories, services, transportation, and supervision required to completely perform the fabrication, erection and execution of the Work in its final position. (i) The most recently issued Drawing or Specification takes precedence over previous issues of the same Drawing or Specification. In the event of a conflict, the order of precedence of interpretation of the Contract Documents is as follows: (1) Amendments (see Paragraph 7.2 for order of precedence between Amendments); (2) the Building Construction Services Agreement; (3) addenda, with those addenda of later date having precedence over those of an earlier date; (4) the Supplementary General Conditions and Special Provisions, if any; (5) the General Conditions for Building Construction; (6) the Specifications and Drawings.. 1.3 OWNERSHIP AND USE OF ARCHITECT/ENGINEER'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS All Drawings, Specifications, and copies thereof furnished by the Architect/Engineer are and shall remain the property of the Owner and are, with the exception of the Contract set for each party, to be returned to the Owner upon request at the completion of the Work. 1.4 CAPITALIZATION Terms capitalized in these General Conditions include those which are: (1) specifically defined in these General Conditions (except the terms defined in Subparagraph 1.10), which terms are of common grammatical usage and are not normally capitalized); (2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and Clauses; File 5761 EXHIBIT 4 (3) the titles of other documents published or used by the Owner as manuals or official policy statements; or (4) proper nouns or other words required under standard grammatical rules to be capitalized. ARTICLE 2 THE OWNER 2.1 DEFINITION OF OWNER The Owner is the City of Denton, a Texas municipal corporation, and is identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the Owner or the Owner's authorized representatives. 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER (a) The Owner shall furnish the most recent survey describing the physical characteristics, legal limits, utility locations, and a permanent benchmark for the site of the Project. The Owner shall also furnish any environmental site assessments that may have been given to the Owner or conducted for the property upon which the Project is to be constructed. THIS INFORMATION IS FURNISHED TO THE CONTRACTOR ONLY IN ORDER TO MAKE DISCLOSURE OF THIS MATERIAL AND FOR NO OTHER PURPOSE. BY FURNISHING THIS MATERIAL, THE OWNER DOES NOT REPRESENT, WARRANT, OR GUARANTEE ITS ACCURACY EITHER IN WHOLE, IN PART, IMPLICITLY OR EXPLICITLY, OR IN ANY OTHER WAY, AND THE OWNER SHALL HAVE NO LIABILITY FOR THIS MATERIAL. (b) Except for permits and fees which are provided for in Subparagraph 3.7(a), the Owner shall secure and pay for necessary approvals, easements, assessments, and charges required for construction, use, or occupancy of permanent structures or for permanent changes in existing facilities. (c) Information or services under the Owner's control shall be furnished by the Owner with reasonable promptness to avoid delay in the orderly progress of the Work. It is incumbent upon the Contractor to identify, establish, and maintain a current schedule of latest dates for submittal and approval, as required in Paragraph 3.10, including when such information or services must be delivered. If Owner delivers the information or services to the Contractor as scheduled and Contractor is not prepared to accept or act on such information or services, then Contractor shall reimburse Owner for all extra costs incurred of holding, storage, or retention, including redeliveries by the Owner to comply with the current schedule. (d) Unless otherwise provided in the Contract Documents, the Contractor will be furnished electronic copies of the Drawings and Specifications fbr bid purposes and one hard copy approved by Building Inspections upon execution of the Contract. Contractor may obtain additional copies by paying the cost of additional printing or reproduction. (e) The obligations described above are in addition to other duties and responsibilities of the Owner enumerated in the Contract Documents and especially those in respect to Article 6 (Construction by Owner or by Separate Contractors), Article 9 (Payments and Completion), and Article 11 (Insurance and Bonds). File 5761 EXHIBIT 4 (f) The Owner shall forward all instructions to the Contractor through the Architect/Engineer, except for the Owner's Notice to Proceed and the Owner's decision to carry out Work as described in Paragraph 2.4. (g) The Owner's employees, agents, and consultants may be present at the Project site during performance of the Work to assist the Architect/Engineer in the performance of the Architect/Engineer's duties and to verify the Contractor's record of the number of workmen employed on the Work, their occupational classification, the time each is engaged in the Work, the equipment used in the performance of the Work, and for purpose of verification of Contractor's Applications for Payment. 2.3 OWNER'S RIGHT TO STOP THE WORK If the Contractor fails to correct any portion of the Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 12.2 or refuses or fails to carry out all or any part of the Work in accordance with the Contract Documents, the Owner, by written order, may order the Contractor to stop the Work, or any portion of the Work, until the cause for the order has been eliminated. The right of the Owner however, to stop the Work shall not create or imply a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. The rights of the Owner under this Paragraph 2.3 shall be in addition to, and not in restriction of, the Owner's rights under Paragraph 12.2. 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor fails or refuses to carry out the Work or perform any of the terms, covenants, or obligations of the Contract Documents, and fails or refuses to correct any failure or refusal with diligence and promptness within fourteen (14) days after receipt of notice from the Owner, the Owner may correct the Contractor's failure or refusal or cause such failure or refusal to be corrected, without affecting, superseding, or waiving any other contractual, legal, or equitable remedies the Owner has, including but not limited to the Owner's termination rights under Article 13. In that case, an appropriate Change Order will be issued deducting the Owner's cost of correction, including Architect/Engineer's compensation for additional services and expenses made necessary by the failure or refusal of the Contractor from payments then or thereafter due to the Contractor. The cost of correction is subject to verification (but not approval) by the Architect/Engineer. If payments then or thereafter due the Contractor are not sufficient to cover the cost of correction, the Contractor shall pay the difference to the Owner. 2.5 NOTICE TO PROCEED After final execution of the Contract and receipt and approval of the required performance and payment bonds and evidence of required insurance, the Owner will issue a written notice to proceed with the Work, including the designated Contract Time within which Substantial Completion of the Work must be achieved. If the Owner unreasonably delays issuance of a written notice to proceed through no fault of the Contractor, the Contractor shall be entitled only to an equitable adjustment of the Contract Time, if properly claimed pursuant to the requirements of Paragraph 4.3; but the Contractor shall not be entitled to any increase to the Contract Sum whatsoever for this reason. File 5761 EXHIBIT 4 ARTICLE 3 THE CONTRACTOR 3.1 DEFINITION OF CONTRACTOR The Contractor is the person or business entity identified as such in the Building Construction Services Agreement, and is referred to throughout the Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized employees or representatives. 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR (a) The Contractor shall carefully check, study, and compare the Contract Documents with each other and shall at once report to the Architect/Engineer in writing any inconsistency, ambiguity, error, omission, conflict, or discrepancy the Contractor may discover. The Contractor shall also verify all dimensions, field measurements, and field conditions before laying out the Work. The Contractor will be held responsible for any subsequent error, omission, conflict, or discrepancy which might have been avoided by the above - described check, study, comparison, and reporting. In the event the Contractor continues to work on an item where an inconsistency, ambiguity, error, omission, conflict, or discrepancy exists without obtaining such clarification or resolution or commences an item of the Work without giving written notice of an error, omission, conflict, or discrepancy that might have been avoided by the check, study, and comparison required above, it shall be deemed that the Contractor bid and intended to execute the more stringent, higher quality, or state of the art requirement, or accepted the condition as is in the Contract Documents, without any increase to the Contract Sum or Contract Time, The Contractor shall also be responsible to correct any failure of component parts to coordinate or fit properly into final position as a result of Contractor's failure to give notice of and obtain a clarification or resolution of any error, omission, conflict, or discrepancy, without any right to any increase to the Contract Sum or Contract Time. (b) The Contractor shall perform the Work in accordance with the Contract Documents and submittals approved pursuant to Paragraph 3.12. 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES (a) The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work, unless the Contract Documents set forth specific instructions concerning these matters. (b) The Contractor shall be responsible to the Owner for the acts and omissions of the Contractor's employees, Subcontractors, Sub - subcontractors, and their respective agents and employees, and any other persons performing portions of the Work under a subcontract with the Contractor or with any Subcontractor, and all other persons or entities for which the Contractor is legally responsible. All labor shall be performed by mechanics that are trained and skilled in their respective trades. Standards of work File 5761 EXHIBIT 4 required throughout shall be of a quality that will bring only first class results. Mechanics whose work is unsatisfactory, or who are considered careless, incompetent, unskilled, or otherwise objectionable shall be dismissed promptly from the Work and immediately replaced with competent, skilled personnel. Any part of the Work adversely affected by the acts or omissions of incompetent, unskilled, careless, or objectionable personnel shall be immediately corrected by the Contractor. (c) The Contractor shall not be relieved of its obligation to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect/Engineer in the Architect/Engineer's administration of the Contract, or by tests, inspections, or approvals required or performed by persons other than the Contractor. (d) The Contractor shall be responsible for inspection of portions of Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent Work. The Contractor's responsibility under this paragraph will not in any way eliminate the Architect/Engineer's responsibility to the Owner under the Architect/Engineer /Owner Agreement. (e) Any Contractor, Subcontractor, Sub - subcontractor, or separate contractor who commences Work over, in, or under any surface prepared by the Owner or by any other contractor, subcontractor, sub - subcontractor or separate contractor without the Contractor having given written notice to the Architect/Engineer of the existence of any faulty surface or condition in the surface that prevents achieving the quality of workmanship specified by the Contract Documents and without having obtained the prior approval of the Architect /Engineer and the Owner to proceed is deemed to have accepted the surface or condition in the surface as satisfactory at the commencement of such Work. Any unsatisfactory Work subsequently resulting from such a faulty surface or condition in the surface that was not pre- approved by the Architect/Engineer or the Owner after notice as provided above may be rejected and replacement required, without any increase to the Contract Sum or Contract Time. (f) All grades, lines, levels, and benchmarks shall be established and maintained on an ongoing basis by the Contractor. The Contractor is solely responsible for any errors made in establishing or maintaining proper grades, lines, levels, or benchmarks. Each Contractor for his own Work shall verify all grades, lines, levels, and dimensions as indicated on Drawings. He shall report any errors, omissions, conflicts, or inconsistencies to Architect/Engineer before commencing any Work affected by these conditions. Contractor shall establish and safeguard benchmarks in at least two widely separated places and, as Work progresses, establish benchmarks at each level and lay out partitions on rough floor in exact locations as guides to all trades. The Contractor shall, from the permanent benchmark provided by the Owner, establish and maintain adequate horizontal and vertical control. 3.4 LABOR AND MATERIALS (a) Except as is otherwise specifically provided in the Contract Documents as being the responsibility of the Owner, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, File 5761 EXHIBIT 4 transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. (b) The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. (c) The Contractor shall give preference, when qualified labor is available to perform the Work to which the employment relates, to all labor hired for the Project in the following order; (1) to bona fide residents of the City of Denton, Texas; (2) to bona fide residents of the County of Denton, Texas; (3) to bona fide residents of the State of Texas; (4) to bona fide residents of the United States. 3.5 WARRANTY (a) General Warranty. The Contractor warrants to the Owner that all Work shall be accomplished in a good and workmanlike manner and that all materials and equipment furnished under the Contract will be of good quality, new (unless otherwise specified), and free from faults or defects, and that the Work will otherwise conform to the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, will be considered defective or nonconforming. The Contractor's warranty excludes any remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. If required by the Architect/Engineer, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The commencement date, duration, and other conditions related to the scope of this general warranty are established in Subparagraphs 9.9 (a) and 12.2(b) of these General Conditions. THE GENERAL WARRANTY PROVIDED IN THIS SUBPARAGRAPH IS IN ADDITION TO AND DOES NOT LIMIT OR DISCLAIM ANY OTHER WARRANTY OR REMEDY REQUIRED OR PROVIDED BY LAW OR THE CONTRACT DOCUMENTS AND SUCH WARRANTY SHALL REQUIRE THE CONTRACTOR TO REPLACE DEFECTIVE MATERIALS AND RE- EXECUTE DEFECTIVE WORK THAT IS DISCLOSED BY THE OWNER TO THE CONTRACTOR WITHIN A PERIOD OF ONE (1) YEAR AFTER SUBSTANTIAL COMPLETION OF THE ENTIRE WORK OR, IF A LATENT DEFECT, WITHIN ONE (1) YEAR AFTER DISCOVERY BY THE OWNER OF THE LATENT DEFECT. (b) Special Warranties. The Contractor shall assign to the Owner in writing, as a condition precedent to final payment, the terms and conditions of all special warranties required under the Contract Documents. File 5761 EXHIBIT 4 3.6 TAXES The Owner qualifies for exemption from state and local sales and use taxes, pursuant to the provisions of Section 151.309 of the Texas Tax Code, as amended. Therefore, the Owner shall not be liable for, or pay the Contractor's cost of, such sales and use taxes which would otherwise be payable in connection with the purchase of tangible personal property furnished and incorporated into the real property being improved under the Contract Documents or the purchase of materials, supplies and other tangible personal property, other than machinery or equipment and its accessories and repair and replacement parts, necessary and essential for performance of the Contract which is to be completely consumed at the job site. The Contractor shall issue an exemption certificate in lieu of the tax on such purchases. 3.7 PERMITS, FEES AND NOTICES (a) The Architect/Engineer will apply and arrange for the issuance of the City of Denton Building Permit. The Contractor and Subcontractors will apply and arrange for the issuance of all other required permits, and will not be required to pay a fee for any City of Denton permits required for the Project. The Owner will pay all service extension charges, including tap fees, assessed by the Water Utilities Department. (b) The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations, and lawful orders of governmental entities or agencies applying to performance of the Work. (c) Except as provided in Subparagraph (d) below, it is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, ordinances, construction codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance with applicable laws, ordinances, construction codes, rules or regulations, the Contractor shall promptly notify the Architect/Engineer and the Owner in writing, and necessary changes shall be accomplished by appropriate Amendment. (d) If the Contractor performs Work knowing it to be contrary to laws, ordinances, construction codes, or rules and regulations without notifying the Architect/Engineer and the Owner, the Contractor shall assume full responsibility for the Work and shall bear the attributable costs of the correction of the Work and any other Work in place that may be adversely affected by the corrective work. 3.8 ALLOWANCES (a) The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for the amounts identified in the Contract and by persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities against which the Contractor makes reasonable objection. (b) Unless otherwise provided in the Contract Documents: File 5761 EXHIBIT 4 (1) materials and equipment under an allowance shall be selected promptly by the Owner to avoid delay in the Work; (2) the amount of each allowance shall cover the cost to the Contractor of materials and equipment delivered at the site less all exempted taxes and applicable trade discounts; (3) the amount of each allowance includes the Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit, and other expenses contemplated for stated allowance Work; (4) whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect: (i) the difference between actual costs and the allowances under Clause (b) (2); and (ii) changes in Contractor's costs under Clause (b) (3); (5) the Owner retains the right to review and approve Subcontractors selected by the Contractor to perform work activities covered by allowances. 3.9 SUPERINTENDENT The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. The Owner reserves the right to request that the Contractor replace its superintendent at any time and the Contractor will replace said superintendent at the Owner's direction. 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES (a) The Contractor shall, immediately after award of the Contract and before submittal of the first Application for Payment, prepare and submit the construction schedule for the Architect/Engineer's and Owner's information, review, and approval in accordance with the following provisions: (1) Unless otherwise approved in writing by the Owner, the construction schedule shall not exceed the Contract Time limits currently in effect under the Contract Documents and shall provide for expeditious and practicable execution of the Work. (2) The construction schedule shall include all shop drawing and submittal data requirements, indicating for each: (i) the latest date to be submitted by the Contractor; and (ii) the latest date for approval by the Architect/Engineer. (3) The construction schedule shall be in the form of a critical path management schedule, and shall indicate each critical task (the "predecessor ") of all the major construction activities of the Work in a logical and sequential order (the "project File 5761 EXHIBIT 4 network ") which requires completion prior to commencement of the task next following (the "successor "). Each task shall be identified with: (i) actual work time, exclusive of slack time, for accomplishment; (ii) the latest start date; (iii) the latest finish date; (iv) the amount of float associated with each task; (v) the amount of labor, material, and equipment associated with each task; and (vi) the percentage of completion as of the date of the current schedule. (4) The construction schedule shall be revised and updated monthly to reflect the actual status of the Work and shall be submitted with each Application for Payment. (5) On or before the first day of each month, following the date of commencement of the Work as stated in the notice to proceed, the Contractor shall prepare and submit to the Architect /Engineer and the Owner an up -to -date status report of the progress of the various construction phases of the Work in the form of an updated construction schedule. This status report shall consist of a time scale drawing indicating actual progress of the various phases of the Work and the percentage of completion of the entire Work. The original construction schedule shall be updated or changed to indicate any adjustments to the Contract Time granted by the Owner. The updated schedule must be submitted with the Contractor's Application for Payment. No application will be certified without a satisfactory update to the construction schedule. (6) The construction schedule will also be revised to show the effect of change orders and other events on Contract Time. No request for an increase in Contract Time will be considered unless it is accompanied by a schedule revision demonstrating the amount of time related to the cause of the request. If the Contractor's status schedules reflect that the Contractor has fallen behind the pace required to complete the Work within the Contract Time, through no fault of the Owner, the Contractor shall prepare a recovery schedule demonstrating how it intends to bring its progress back within the Contract Time. This recovery schedule shall be in a form acceptable to the Owner. (7) Costs incurred by the Contractor in preparing and maintaining the required construction schedule, any updated schedule, and any recovery schedule required by the Owner will not be paid as an additional or extra cost and shall be included in the Contract Sum. (8) The Contract Sum is deemed to be based upon a construction schedule requiring the full Contract Time. NO CLAIM FOR ADDITIONAL COMPENSATION SHALL BE ALLOWED AS A RESULT OF THE CONTRACTOR BASING HIS BID ON AN EARLY COMPLETION SCHEDULE, OR AS A RESULT OF DELAYS AND File 5761 EXHIBIT 4 COSTS ATTRIBUTABLE TO COMPLETION LATER THAN THE PLANNED EARLY COMPLETION DATE. (b) The Contractor shall also prepare and keep current, for the Architect/Engineer's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect /Engineer reasonable time to review submittals. (c) The Contractor shall conform to the most recent schedules approved as to form by the Architect /Engineer and the Owner. Any subsequent revisions made by the Contractor to schedules in effect shall conform to the provisions of Subparagraph 3.10(a) (d) If the Work falls behind the approved construction schedule, the Contractor shall take such steps as may be necessary to improve his progress, and the Architect/Engineer and the Owner may require him to increase the number of shifts, overtime operations, days of work, or the amount of construction plant, and to submit for approval revised schedules in the form required above in order to demonstrate the manner in which the agreed rate of progress will be regained, all without additional cost to the Owner. 3.11 DOCUMENTS AND SAMPLES AT THE PROJECT SITE The Contractor shall maintain at the Project site for the Owner one record copy of the Drawings, Specifications, addenda, and Amendments in good order and marked currently to record changes and selections made during construction, and in addition shall maintain at the Project site approved Shop Drawings, Product Data, Samples, and similar required submittals. These shall be available to the Architect/Engineer and shall be delivered to the Architect/Engineer for submittal to the Owner upon completion of the Work. 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES (a) Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub - subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work. (b) Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. (c) Samples are physical examples which illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged. (d) Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect/Engineer is subject to the limitations of Paragraph 4.2. (e) The Contractor shall review, approve and submit to the Architect/Engineer Shop Drawings, Product Data, Samples, and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the File 5761 EXHIBIT 4 Work or in the activities of the Owner or of separate contractors. Submittals made by the Contractor which are not required by the Contract Documents may be returned without action. (f) The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples, or similar submittals until the respective submittal has been approved by the Architect /Engineer. Work requiring this submittal and review shall be in accordance with approved submittals and any identified exceptions noted by the Architect/Engineer. (g) By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements, and related field construction criteria, or will do so, and has checked and coordinated the information contained within submittals with the requirements of the Work and of the Contract Documents. The Contractor's attention is directed to Paragraph 3.2 of these General Conditions and the requirements stated in that Paragraph. (h) The Contractor shall not be relieved of responsibility for deviations, substitutions, changes, additions, deletions or omissions from requirements of the Contract Documents by the Architect/Engineer's approval of Shop Drawings, Product Data, Samples, or similar submittals unless the Contractor has specifically informed the Architect/Engineer in writing of such substitutions, changes, additions, deletions, omissions, or deviations involved in the submittal at the time of submittal and the Architect /Engineer, subject to a formal Change Order signed by the Owner, Architect/Engineer and Contractor, has given written approval to the specific substitutions, changes, additions, deletions, omissions, or deviations. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the Architect/Engineer's approval thereof. Further, notwithstanding any approval of a submittal by the Architect /Engineer, the Contractor shall be responsible for all associated Project costs, including costs of coordination's, modifications, or impacts, direct or indirect, resulting from any and all substitutions, changes, additions, deletions, omissions, or deviations, whether or not specifically identified by the Contractor to the Architect /Engineer at the time of the above - mentioned submittals, including additional consulting fees, if any, in any and all accommodations associated with such substitutions, changes, additions, deletions, omissions, or deviations to the requirements of the Contract Documents. (i) The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples, or similar submittals, to additional revisions other than those requested by the Architect/Engineer on previous submittals. In the absence of such written notice, the Architect /Engineer's approval of a resubmission shall not apply to the additional revisions not requested, (j) Informational submittals upon which the Architect /Engineer is not expected to take responsive action may be so identified in the Contract Documents. (k) When professional certification of performance criteria of materials, systems, or equipment is required by the Contract Documents, the Architect /Engineer shall be entitled to rely upon the accuracy and completeness of such calculations and certifications. 3.13 USE OF THE PROJECT SITE File 5761 EXHIBIT 4 The Contractor shall confine operations at the Project site to areas permitted by law, ordinances, permits, and the Contract Documents and shall not unreasonably encumber the Project site with materials or equipment. 3.14 CUTTING AND PATCHING (a) The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. (b) The Contractor shall not damage or endanger a portion of the Work or any fully or partially completed construction of the Owner or separate contractors by cutting, patching, or otherwise altering the construction, or by excavating. The Contractor shall not cut or otherwise alter the construction by the Owner or a separate contractor except with the written consent of the Owner and of the separate contractor; consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. (c) A Hot Work Permit must be obtained from the City of Denton's Facilities Management Department, 869 S. Woodrow Lane, Denton, Texas (940 349 -7200) for any temporary operation involving open flames or producing heat and /or sparks. This includes, but is not limited to: Brazing, Cutting, Grinding, Soldering, Torch Applied Roofing and Welding. 3.15 CLEANING UP (a) The Contractor shall keep the Project site and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. Upon the completion of the Work the Contractor shall remove from and about the Project site all waste materials, and rubbish, and all of the Contractor's tools, construction equipment, machinery, and surplus materials. (b) If the Contractor fails to clean up as provided in the Contract Documents, the Owner may clean up and the Owner's cost of cleaning up shall be charged to the Contractor. 3.16 ACCESS TO WORK The Contractor shall provide the Owner and the Architect/Engineer access to the Work in preparation and progress wherever located during the course of construction. 3.17 TESTS AND INSPECTIONS (a) Tests, inspections, and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations, or orders of governmental entities or agencies having jurisdiction over the Work shall be made at appropriate times. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections, and approvals with an independent testing laboratory or entity acceptable to the Owner or with the appropriate governmental entity or agency, and the Contractor shall bear all related costs of tests, inspections, and approvals. The Contractor shall give the Architect/Engineer timely notice of when and where tests and inspections are to be made File 5761 EXHIBIT 4 so the Architect/Engineer may observe such procedures. The Owner shall bear costs of tests, inspections, or approvals which become requirements after bids or proposals are received. (b) If the Architect /Engineer, the Owner or other public authorities having jurisdiction over the Work determine that portions of the Work require additional testing, inspection or approval not included under Subparagraph 3.17(a), the Architect/Engineer will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect/Engineer of when and where tests and inspections are to be made so that the Architect/Engineer may observe such procedures. The Owner shall bear such costs except as provided in Subparagraph 3.17(c). (c) If procedures for testing, inspection, or approval under Subparagraphs 3.17(a) and 3.17(b) reveal deficiencies or nonconformities in the Work, the Contractor shall bear all costs made necessary to correct the deficiencies or nonconformities, including those of repeated procedures and compensation for the Architect/Engineer's services and expenses, if any. The Contractor shall bear the costs of any subsequent testing, inspection, or approval of the corrected Work. (d) Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect /Engineer. (e) If the Architect/Engineer is to observe tests, inspections or approvals required by the Contract Documents, the Architect/Engineer will do so promptly and, where practicable, at the normal place of testing or inspection. (f) Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 3.18 ROYALTIES AND PATENTS The Contractor shall pay all royalties and license fees. CONTRACTOR SHALL COMPLETELY DEFEND, INDEMNIFY AND HOLD OWNER AND ARCHITECT /ENGINEER HARMLESS FROM ANY AND ALL SUITS OR CLAIMS FOR INFRINGEMENT OF PATENT RIGHTS, REGARDLESS OF WHETHER OR NOT THE OWNER OR THE ARCHITECT /ENGINEER SPECIFIED A PARTICULAR DESIGN, PROCESS OR PRODUCT IN THE CONTRACT DOCUMENTS THAT MAY BE THE SUBJECT OF A PATENT INFRINGEMENT OR OTHERWISE ACTIVELY INDUCED OR CONTRIBUTED TO THE INFRINGEMENT. In the event the Contractor has reason to believe that a particular design, process or product specified infringes a patent, the Contractor shall immediately notify the Owner and the Architect/Engineer of same. 3.19 INDEMNIFICATION File 5761 EXHIBIT 4 (a) THE CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD THE OWNER, ITS OFFICERS, AGENTS AND EMPLOYEES, AND THE ARCHITECT /ENGINEER, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS, FINES, PENALTIES, COSTS AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM OR VIOLATIONS FOR WHICH RECOVERY OF DAMAGES, FINES, OR PENALTIES IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY CONTRACTOR'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS CONTRACT, VIOLATIONS OF LAW, OR BY ANY NEGLIGENT, GROSSLY NEGLIGENT, INTENTIONAL, OR STRICTLY LIABLE ACT OR OMISSION OF THE CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, SUBCONTRACTORS, OR SUB - SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, OR REPRESENTATIVES, OR ANY OTHER PERSONS OR ENTITIES FOR WHICH THE CONTRACTOR IS LEGALLY RESPONSIBLE IN THE PERFORMANCE OF THIS CONTRACT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, OR OF THE ARCHITECT /ENGINEER, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF THE CONTRACTOR, THE OWNER, AND THE ARCHITECT/ENGINEER, RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE OWNER UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. (b) In claims against any person or entity indemnified under this Paragraph 3.19 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 3.19 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers compensation acts, disability benefit acts or other employee benefit acts. (c) Indemnification under this Paragraph 3.19 shall include, but is not limited to, liability which could result to or be created for the Owner, its officers, agents, or employees, or the Architect/Engineer pursuant to State or Federal laws or regulations relating to pollution of the environment and State or Federal laws or regulations relating to the occupational safety and health of workers. The Contractor specifically agrees to comply with the above - mentioned laws and regulations in the performance of the Work by the Contractor and that the obligations of the Owner, its officers, agents, and employees, and the Architect /Engineer under the above - mentioned laws and regulations are secondary to those of the Contractor. File 5761 EXHIBIT 4 ARTICLE 4 CONTRACT ADMINISTRATION 4.1 THE DESIGN PROFESSIONAL (ARCHITECT /ENGINEER) (a) The design professional is the person lawfully licensed to practice architecture or engineering or a firm or other business entity lawfully practicing architecture /engineering identified as such in the formal Building Construction Services Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect/Engineer" means the Architect/Engineer or the Architect/Engineer's authorized representative. The Owner may, at its option, designate a qualified Owner representative to serve as the Architect/Engineer on the Project instead of an outside firm or person. In such event, the references in these General Conditions that refer to the Architect/Engineer shall apply to the Owner- designated Architect/Engineer representative and the Owner- designated Architect/Engineer representative shall be accorded that same status by the Contractor. (b) In the event the Architect/Engineer is an outside person or firm and the Architect/Engineer's employment is terminated, the Owner may, at its option, contract with a new outside Architect /Engineer to replace the former, or may designate a qualified Owner representative to serve as the Architect/Engineer. The replacement Architect/Engineer, whether an Owner representative, an independent Architect/Engineer or any other qualified person or entity, shall be regarded as the Architect/Engineer for all purposes under the Contract Documents and shall be accorded that same status by the Contractor. Any dispute in connection with such appointment shall be reviewed and settled by the Owner, whose decision shall be final and binding. (c) Owner reserves the right to appoint a representative empowered to act for the Owner during the Construction Phase and to supersede the Architect/Engineer's Construction Phase responsibility. Similarly, from time to time the Owner may expand or reduce the Owner's delegation of powers to the Architect/Engineer, with the Owner notifying the Contractor of any such changes. The Architect/Engineer shall not be construed as a third party beneficiary to the Contract and can in no way object to any expansion or reduction of powers as set forth in this Subparagraph (c). In no event, however, shall the Owner have control over charge of, or be responsible for, construction means, methods, techniques, sequences, or procedures, or for safety precautions or programs in connection with the Work since these are solely the Contractor's responsibility. The Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Owner will not have control over or charge of and will not be responsible for acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 4.2 ARCHITECT/ENGINEER'S RESPONSIBILITIES DURING CONSTRUCTION (a) The Architect/Engineer will administer the Contract as described in the Contract Documents and in accordance with the terms of the Architect/Engineer's agreement with the Owner, where applicable, subject to the direction and approval of the Owner. If File 5761 EXHIBIT 4 requested by the Contractor, the provisions of the Owner /Architect/Engineer Agreement will be made available to the Contractor. (b) The Architect /Engineer shall provide, during performance of the Work, adequate and competent periodic on -site construction observation, periodically visiting the Project site to the extent necessary to personally familiarize themselves with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. The Architect/Engineer shall not, however, be required to make continuous on -site inspections to check the Work. Field reports of each visit shall be prepared by the Architect/Engineer and submitted to the Owner. The Architect/Engineer shall employ all reasonable measures to safeguard the Owner against defects and nonconformities in the Work. The Architect/Engineer shall not be responsible for the construction means, methods, techniques, sequences of procedures, nor for the safety precautions and programs employed in connection with the Work. The Architect/Engineer will, however, immediately inform the Owner whenever defects or nonconformities in the Work are observed, or when any observed actions or omissions are undertaken by the Contractor or any Subcontractor which are not in the best interests of the Owner or the Project. (c) The Architect/Engineer and the Owner will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility as provided in Paragraph 4.3. The Architect /Engineer and the Owner will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Architect/Engineer and the Owner will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, Sub - subcontractors, or their respective agents or employees, or of any other persons performing portions of the Work for which the Contractor is responsible. (d) Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate through the Architect /Engineer. Communications by and with the Architect /Engineer's consultants shall be through the Architect/Engineer. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors will be through the Owner. The Contractor shall provide written confirmation of communications made directly with the Owner and provide copies of such confirmation to the Architect /Engineer. (e) Based on the Architect /Engineer's observations and evaluations of the Contractor's Applications for Payment, the Architect /Engineer will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. (f) The Architect/Engineer and the Owner will each have authority to reject Work which does not conform to the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect /Engineer will have authority to require additional inspection or testing of the Work in accordance with Subparagraphs 3.17(b) and 3.17(c), whether or not such Work File 5761 EXHIBIT 4 is fabricated, installed or completed. However, neither this authority of the Architect /Engineer nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to any duty or responsibility of the Architect/Engineer to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons performing portions of the Work. (g) The Architect/Engineer will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data, and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect/Engineer's action will be taken with such reasonable promptness as to not delay the Work or the activities of the Owner, Contractor, or separate contractors. 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, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect /Engineer's review of the Contractor's submittals shall not relieve the Contractor of any obligations under Paragraphs 3.3, 3.5, and 3.12. The Architect/Engineer's review shall not constitute approval of safety precautions or, unless otherwise specifically stated in writing by the Architect/Engineer, of any construction means, methods, techniques, sequences, or procedures. The Architect/Engineer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. (h) The Architect/Engineer will prepare Change Orders and may authorize minor changes in the Work as provided in Paragraph 7.3. (i) The Architect/Engineer will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, will receive and forward to the Owner for the Owner's review and records written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. (j} If the Owner and Architect/Engineer agree, the Architect /Engineer will provide one or more Project representatives to assist in carrying out the Architect/Engineer's responsibilities at the site. The duties, responsibilities, and limitations of authority of such Project representatives shall be as set forth in an exhibit to be incorporated into the Contract Documents. (k) The Architect/Engineer will interpret and make recommendations to the Owner concerning performance under and requirements of the Contract Documents upon written request of either the Owner or Contractor. The Architect/Engineer's response to such requests will be made with reasonable promptness and within any time limits agreed upon. The Architect/Engineer shall secure the Owner's written approval before issuing instructions, interpretations, or judgments to the Contractor which change the scope of the Work or which modify or change the terms and conditions of any of the Contract Documents. File 5761 EXHIBIT 4 (1) Interpretations and decisions of the Architect/Engineer will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of Drawings. When making such interpretations and decisions, the Architect/Engineer will endeavor to secure faithful performance by the Contractor. (m)The Architect/Engineer's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents provided that the Architect/Engineer has prior written approval of the Owner. 4.3 CLAIMS AND :DISPUTES (a) Definition; General Notice of Claim Procedure. As used in these General Conditions, a "Claim" means a demand or assertion by one of the parties to the Contract seeking an adjustment of the terms of the Contract Documents, of the Contract Sum, of the Contract Time, or some other relief in respect to the terms of the Contract Documents. The term also includes all other disputes between the Owner and the Contractor arising out of or relating to the Project or the Contract Documents, including but not limited to claims that work was outside the scope of the Contract Documents. The responsibility to substantiate the Claim and the burden of demonstrating compliance with this provision shall rest with the party making the Claim. Except where otherwise provided in the Contract Documents, a Claim by the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, MUST BE MADE BY WRITTEN NOTICE TO THE ARCHITECT /ENGINEER AND THE OWNER WITHIN FOURTEEN (14) DAYS AFTER OCCURRENCE OF THE EVENT OR EVENTS GIVING RISE TO THE PARTICULAR CLAIM. Every Claim of the Contractor, whether for additional compensation, additional time, or other relief, including but not limited to claims arising from concealed conditions, shall be signed and sworn to by an authorized corporate officer (if not a corporation, then an official of the company authorized to bind the Contractor by his signature) of the Contractor, verifying the truth and accuracy of the Claim. THE CONTRACTOR SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM NOT MADE STRICTLY IN ACCORDANCE WITH THE PROCEDURE AND TIME LIMITS SET OUT IN THIS PARAGRAPH. (b) Referral to the Architect/Engineer. Claims, disputes, and other matters in question between the Contractor and the Owner relating to the progress or execution of the Work or the interpretation of the Contract Documents shall be referred to the Architect/Engineer for recommendation to the Owner, which recommendation the Architect/Engineer will furnish in writing within a reasonable time, provided proper and adequate substantiation has been received. Failure of the Contractor to submit the Claim to the Architect/Engineer for rendering of a recommendation to the Owner shall constitute a waiver of the Claim. (c) Continuing Contract Performance. Pending final resolution of a claim the Contractor shall proceed diligently with performance of the Work and the Owner shall continue to make payments in accordance with the Contract Documents. File 5761 EXHIBIT 4 (d) Claims for Concealed or Unknown Conditions. No adjustment in the Contract Sum or Time associated with concealed or unknown conditions will normally be considered or allowed; provided, however, that the Contract Sum or Time may be adjusted by the Owner in such circumstances only if: (1) a concealed subsurface condition is encountered in the course of performance of the Work; (2) a concealed or unknown condition in an existing structure is at variance with conditions indicated by the Contract Documents; or (3) an unknown physical condition is encountered below the surface of the ground or in an existing structure which is of an unusual nature and materially different from those ordinarily encountered and generally recognized as inherent in the character of the Work; and (4) a notice of claim with proper and adequate substantiation is presented pursuant to Subparagraph 4.3(a) of these General Conditions; and (5) the Owner and the Architect /Engineer determine that: (i) prior to submitting its bid for the Work, the Contractor used reasonable diligence to fully inspect the portion of the Project site where the condition was discovered; and (ii) the work caused or required by the concealed or unknown condition at issue can be considered extra work to the extent that additional new Drawings must be prepared and issued and new construction beyond the scope of the Contract Documents is required. (e) Disclaimer of Warranties as to Reports, Drawings, and Specifications. PROJECT SITE INFORMATION AND REPORTS (INCLUDING BUT NOT LIMITED TO SOILS TESTING REPORTS, GEOTECHNICAL REPORTS, OR ENVIRONMENTAL SITE ASSESSMENTS) PROVIDED BY THE OWNER AND THE ARCHITECT /ENGINEER IN THE PROJECT MANUAL OR BY OTHER MEANS SHALL BE UTILIZED BY THE CONTRACTOR AT THE CONTRACTOR'S OWN RISK. THE OWNER AND THE ARCHITECT /ENGINEER DO NOT GUARANTEE OR WARRANT ANY INFORMATION SHOWN IN THE PROJECT SITE INFORMATION AND REPORTS. (f) Claims for Additional Cost. If the Contractor wishes to make a claim for an increase in the Contract Sum, written notice as provided in this Paragraph 4.3 shall be given before proceeding to execute the Work. Prior notice is not required for claims relating to an emergency endangering life or property arising under Paragraph 10.3. In addition, the Contractor's request for an increase in the Contract Sum for any reason (other than work performed under emergency conditions) shall be made far enough in advance of required work to allow the Owner and the Architect/Engineer a sufficient amount of time, without adversely affecting the construction schedule, to review the request, prepare and distribute such additional documents as may be necessary to obtain suitable estimates or proposals and to negotiate, execute and distribute a Change Order for the required work if the Contractor believes that additional cost is involved for reasons including but not limited to: File 5761 EXHIBIT 4 (1) a written interpretation from the Architect/Engineer; (2) a written order for a minor change in the Work issued by the Architect/Engineer; (3) failure of payment by the Owner; (4) termination of the Contract by the Owner; (5) the Owner's temporary suspension of all or any portion of the Work where the Contractor was not at fault; or (6) other reasonable grounds. (g) Injury or Damage to Person or Property. If the Contractor suffers injury or damages to person or property because of an act or omission of the Owner, or of any of the Owner's officers, employees or agents, written, sworn-to notice of any claim for damages or injury shall be given as provided in Subparagraph 4.3(a). The notice shall provide sufficient detail to enable the Architect/Engineer and the Owner to investigate the matter. (h) Subcontractor Pass - Through Claims. In the event that any Subcontractor of the Contractor asserts a claim to the Contractor that the Contractor seeks to pass through to the Owner under the Contract Documents, any entitlement of the Contractor to submit and assert the claim against the Owner shall be subject to: (1) the requirements of Paragraph 4.3 of these General Conditions; and (2) the following additional three requirements listed below, all three of which additional requirements shall be conditions precedent to the entitlement of the Contractor to seek and assert such claim against the Owner: (ii) The Contractor shall either (A) have direct legal liability as a matter of contract, common law, or statutory law to the Subcontractor for the claim that the Subcontractor is asserting or (B) the Contractor shall have entered into a written liquidating agreement with the Subcontractor, under which agreement the Contractor has agreed to be legally responsible to the Subcontractor for pursing the assertion of such claim against the Owner under the Contract and for paying to the Subcontractor any amount that may be recovered, less Contractor's included markup (subject to the limits in the Contract Documents for any markup). The liability or responsibilities shall be identified in writing by the Contractor to the Owner at the time such claim is submitted to Owner, and a copy of any liquidating agreement shall be included by the Contractor in the claim submittal materials. (ii) The Contractor shall have reviewed the claim of the Subcontractor prior to its submittal to Owner and shall have independently evaluated such claim in good faith to determine the extent to which the claim is believed in good faith to be valid. The Contractor shall also certify, in writing and under oath to the Owner, at the time of the File 5761 EXHIBIT 4 submittal of such claim, that the Contractor has made a review, evaluation, and determination that the claim is made in good faith and is believed to be valid. (iii) The Subcontractor making the claim to the Contractor shall certify in writing and under oath that it has compiled, reviewed and evaluated the merits of such claim and that the claim is believed in good faith by the Subcontractor to be valid. A copy of the certification by the Subcontractor shall be included by Contractor in the claim submittal materials. (3) Any failure of the Contractor to comply with any of the foregoing requirements and conditions precedent with regard to any such claim shall constitute a waiver of any entitlement to submit or pursue such claim. (4) Receipt and review of a claim by the Owner under this Subparagraph shall not be construed as a waiver of any defenses to the claim available to the Owner under the Contract Documents or law. (i) Owner's Right to Order Acceleration and to Deny Claimed and Appropriate Time Extensions, in Whole or in Part. The Contractor acknowledges and agrees that Substantial Completion of the Work by or before the Scheduled Completion Date is of substantial importance to Owner. The following provisions, therefore, will apply; (1) If the Contractor falls behind the approved construction schedule for whatever reason, the Owner shall have the right, in the Owner's sole discretion, to order the Contractor to develop a recovery schedule as described in Paragraph 3.10 or to accelerate its progress in such a manner as to achieve Substantial Completion on or before the Contract Time completion date or such other date as the Owner may reasonably direct and, upon receipt, the Contractor shall take all action necessary to comply with the order. In such event, any possible right, if any, of the Contractor to additional compensation for any acceleration shall be subject to the terms of this Subparagraph (i). (2) In the event that the Contractor is otherwise entitled to an extension of Contract Time and has properly initiated a Claim for a time extension in accordance with Subparagraph 4.3(a) above, the Owner shall have the right, in the Owner's sole discretion, to deny all, or any part, of the Claim for extension of Contract Time by giving written notice to the Contractor provided within fourteen (14) days after receipt of the Contractor's Claim. If the Owner denies the Contractor's claim for an extension of Contract Time under this Clause (i)(2), either in whole or in part, the Contractor shall proceed to prosecute the Work in such a manner as to achieve Substantial Completion on or before the then existing Scheduled Completion Date. (3) If the Contractor would have been entitled to a time extension for a reason specifically allowed under the Contract Documents, for an amount of time that would have justified approval by the Owner if not for the need and right to accelerate, the Contractor may initiate a Claim for acceleration costs pursuant to File 5761 EXHIBIT 4 Subparagraph 43(a). Any resulting Claim for acceleration costs properly initiated by the Contractor under Subparagraph 4.3(a) above shall be limited to those reasonable and documented direct costs of labor, materials, equipment, and supervision solely and directly attributable to the actual acceleration activity necessary to bring the Work back within the then existing approved construction schedule. These direct costs include the premium portion of overtime pay, additional crew, shift, or equipment costs if requested in advance by the Contractor and approved in writing by the Owner. A percentage markup for the prorated cost of premium on the existing performance and payment bonds and required insurance, not to exceed 5 %, will be allowed on the claimed acceleration costs. NO OTHER MARKUP FOR PROFIT, OVERHEAD (INCLUDING BUT NOT LIMITED TO HOME OFFICE OVERHEAD) OR ANY OTHER COSTS WILL BE ALLOWED ON ANY ACCELERATION CLAIM. The Owner shall not be liable for any costs related to an acceleration claim other than those described in this Clause (i)(3). (i) Waiver of Claims; Final Payment. The making of final payment shall constitute a waiver of claims by the Owner except those arising from: (1) claims, security interests, purported liens, or other attempted encumbrances arising out of the Contract and remaining unsettled; (2) defective or nonconforming Work appearing after Substantial Completion; (3) latent defects, as defined in Subparagraph 12.2(d), appearing after Final Completion; or (4) the terms of general and special warranties required by the Contract Documents or allowed or implied by law. (k) THE CONTRACTOR SHALL NOT BE ENTITLED TO RECOVER ATTORNEY'S FEES AS A PART OF ANY CLAIM MADE UNDER THE CONTRACT DOCUMENTS OR IN ANY SUBSEQUENT LAWSUIT OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING. (1) No Waiver of Governmental Immunity. NOTHING IN THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO WAIVE THE OWNER'S GOVERNMENTAL IMMUNITY FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO THE EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE LAW. ARTICLE 5 SUBCONTRACTORS 5.1 DEFINITIONS OF SUBCONTRACTOR File 5761 EXHIBIT 4 (a) A Subcontractor is person or entity who has a direct contract with the Contractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Contractor by purchase or lease for use in performance of or incorporation into the Work. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. (b) A Sub - subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the Project site or to supply materials or equipment to the Subcontractor or another Sub - subcontractor by purchase or lease for use in performance of or incorporation into the Work. The term "Sub- subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub - subcontractor or an authorized representative of the Sub- subcontractor. 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK (a) Immediately after the award of the Contract by the Owner, and before the Building Construction Services Agreement is signed by the Contractor and the Owner, the Contractor shall furnish to the Architect /Engineer in writing, for acceptance by the Owner and the Architect/Engineer, a list of the names, addresses, telephone numbers, M/WBE certification numbers (where applicable), and type of work of the Subcontractors (including those who are to furnish materials or equipment fabricated to a special design), proposed for the principal portions of the Work, including furnishings when made a part of the Contract. The Contractor shall immediately notify the Owner in writing of any changes in the list as they occur. The Architect/Engineer will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect/Engineer, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect/Engineer to reply promptly shall constitute notice of no reasonable objection. (b) The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect/Engineer has made reasonable and timely objection. (c) Architect /Engineer's and Owner's approval of or objection to any Subcontractor or of a particular process or material will not relieve the Contractor of his responsibility for performance of Work as called for under the Contract Documents, and shall not provide a basis for any claim for additional time or money on the part of the Contractor. Approval shall not be construed to create any contractual relationship between the Subcontractor and either the Owner or Architect/Engineer. In no event shall the Contract Sum be increased as a result of the rejection of any Subcontractor. (d) The Contractor shall not change a Subcontractor previously selected if the Owner or Architect /Engineer makes reasonable objection to such change. 5.3 SUBCONTRACTUAL RELATIONS File 5761 EXHIBIT 4 (a) By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by the terms of the Contract Documents (including but not limited to these General Conditions), and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by the Contract Documents, assumes toward the Owner and the Architect/Engineer, Each subcontract agreement shall preserve and protect the rights of the Owner and the Architect/Engineer under the Contract Documents (including but not limited to these General Conditions) with respect to the Work to be performed by the Subcontractor so that subcontracting will not prejudice the rights of the Owner and the Architect/Engineer. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub - subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor is to be bound. Subcontractors shall similarly make copies of applicable portions of such Documents available to their respective proposed Sub - subcontractors. (b) The Contractor is solely responsible for making payments properly to the Contractor's Subcontractors on the Project. During performance of the Work, the Contractor shall comply with the following additional rules regarding Subcontractor payments: (1) The Contractor shall submit, beginning with the Second Application and Certificate for Payment, a Subcontractor Payment Report (the "Report") with each Application and Certificate for Payment. The Report shall show all payments made to date by the Contractor (plus existing retainage) to each Subcontractor involved in the Project. The Report shall be made on a form approved and supplied by the Owner. As an alternative to the Report, the Contractor may furnish Affidavits of Payment Received with the Application and Certificate for Payment, which affidavits shall be executed by each Subcontractor owed money and paid during the previous progress payment period for work or materials furnished on the Project. RECEIPT BY THE OWNER OF THE REPORT OR AFFIDAVITS OF PAYMENT RECEIVED SHALL BE A CONDITION PRECEDENT TO PAYMENT ON ANY APPLICATION. (2) If, for any reason, the Contractor is withholding payment to a Subcontractor due to a dispute or other problem with performance, the Contractor shall note the amount withheld and that payment is in dispute. The Owner may require the Contractor to document and verify the dispute or other problem in question. (3) The Owner reserves the right in its sole discretion, to withhold payment to the Contractor pursuant to Paragraph 9.5(a) of the General Conditions, should it appear from the Report, statements of payment received or other information furnished to the Owner that: (i) the Report has not been properly completed; (ii) the Contractor has knowingly provided false information regarding payment of any Subcontractor; or File 5761 EXHIBIT 4 (iii) the Contractor has otherwise failed to make payments properly to any Subcontractor. (4) THE CONTRACTOR SHALL NOT HAVE ANY RIGHT TO MAKE A CLAIM FOR ADDITIONAL TIME OR ADDITIONAL COMPENSATION AS A RESULT OF THE OWNER'S OR ARCHITECT /ENGINEER'S ENFORCEMENT OF THIS SUBPARAGRAPH 5.3(b). NO PROVISION OF THIS SUBPARAGRAPH OR ANY OF THE CONTRACT DOCUMENTS SHALL BE CONSTRUED TO CREATE A CONTRACTUAL RELATIONSHIP, EXPRESS OR IMPLIED, BETWEEN ANY SUBCONTRACTOR AND EITHER THE OWNER OR THE ARCHITECT/ENGINEER AND SHALL NOT BE CONSTRUED TO MAKE ANY SUBCONTRACTOR OR ANY OTHER PERSON OR ENTITY A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN THE OWNER AND THE CONTRACTOR. 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS In the event of a termination of this Contract by the Owner under Article 14, the Contractor shall, if requested in writing by the Owner, within fifteen (15) days after the date notice of termination is sent, deliver and assign to Owner, or any person or entity acting on the Owner's behalf, any or all subcontracts made by Contractor in the performance of the Work, and deliver to the Owner true and correct originals and copies of the subcontract documents. In the event assignment is not requested by the Owner, Contractor shall terminate all subcontracts to the extent that Owner has not directed assignment of same and to the extent that they relate to the performance of Work terminated by the notice of termination. ARTICLE 6 CONSTRUCTION BY THE OWNER/ SEPARATE CONTRACTORS 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS (a) The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the Project site under Conditions of the Contract identical or substantially similar to these General Conditions, including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make a claim as provided elsewhere in and in accordance with the Contract Documents. (b) When separate contracts are awarded for different portions of the Project or other construction or operations on the Project site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Building Construction Services Agreement with the Owner. (c) The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with File 5761 EXHIBIT 4 them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall, with the approval of the Owner, make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors, and the Owner until subsequently revised by mutual agreement or by written Change Order. If the Contractor believes it is entitled to an adjustment of the Contract Sum under the circumstances, the Contractor shall submit a written proposal for a Change Order pursuant to Article 7 of the General Conditions. In the event the Contractor's Change Order proposal is denied by the Owner, the Contractor must submit any Claim pursuant to Paragraph 4.3 of the General Conditions. (d) Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under these General Conditions, including, without excluding others, those stated in Article 3, this Article 6, and Articles 10, 11 and 12. 6.2 MUTUAL RESPONSIBILITY (a) The Contractor shall afford the Owner and separate contractors' reasonable opportunity for access to and storage of their materials and equipment and the performance of their activities and shall coordinate the Contractor's construction and operations with the separate contractors as required by the Contract Documents. (b) If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect/Engineer apparent discrepancies or defects in the other construction that would render it unsuitable for proper execution and results. Failure of the Contractor to so report shall constitute an acknowledgment that the Owner's or separate contractors completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. (c) The Owner shall not be liable to the Contractor for damages suffered by the Contractor due to the fault or negligence of a separate contractor or through failure of a separate contractor to carry out the directions of the Owner or the Architect /Engineer. Should any interference occur between the Contractor and a separate contractor, the Architect/Engineer or the Owner may furnish the Contractor with written instructions designating priority of effort or change in methods, whereupon the Contractor shall immediately comply with such direction. In such event, the Contractor shall be entitled to an extension of the Contract Time only for unavoidable delays verified by the Architect/Engineer; no increase in the Contract Sum, however, shall be due to the Contractor. File 5761 EXHIBIT 4 (d) The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2(e). (e) Should the Contractor cause damage to the work or property of any separate contractor on the Project, the Contractor shall, upon due notice, settle with the separate contractor by agreement, if the separate contractor will so settle. If the separate contractor sues the Owner or submits a claim on account of any damage alleged to have been so sustained, the Owner shall notify the Contractor who shall defend such proceedings, at the Contractor's expense, and if any judgment or award against the Owner arises from the separate contractor's claim, the Contractor shall pay or satisfy it and shall reimburse the Owner for all attorney's fees and costs which the Owner has incurred. (f) The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 3.14. 6.3 OWNER'S RIGHT TO CLEAN UP If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the Project site and surrounding area free from waste materials and rubbish as described in Paragraph 3.15, the Owner may clean up and allocate the cost among those responsible as the Architect /Engineer recommends to be just. ARTICLE 7 AMENDMENTS 7.1 CHANGE ORDERS (a) A Change Order is a written order to the Contractor, signed by the Owner and the Architect/Engineer, issued after execution of the Contract, authorizing a change in the Work, an adjustment in the Contract Sum, or an adjustment to the Contract Time, consistent with other applicable provisions of this Contract. The Owner, without invalidating the Contract and without requiring notice of any kind to the sureties, may order changes to the scope of Work under the Contract by additions, deletions, or other revisions, the Contract Sum and Contract Time to be adjusted consistent with other applicable provisions of this Contract. All Change Orders shall be executed on a Change Order form approved by the Owner and the Owner's City Attorney. (b) In addition to the Owner and the Architect/Engineer, the Contractor shall sign all Change Orders to verify and confirm the terms and conditions established by Change Order; however, should the Contractor refuse to sign a Change Order, this shall not relieve him of his obligation to perform the change directed by the Owner and the Architect/Engineer to the best of his ability in accordance with the provisions of this Article 7. A Change Order signed by the Contractor indicates his agreement with all of the changes approved, including the adjustment in the Contract Sum or the Contract Time. EACH CHANGE ORDER SHALL BE SPECIFIC AND FINAL AS TO PRICES AND EXTENSIONS OF TIME, WITH NO RESERVATIONS OR OTHER PROVISIONS ALLOWING FOR FUTURE ADDITIONAL MONEY OR TIME AS A RESULT OF THE PARTICULAR File 5761 EXHIBIT 4 CHANGES IDENTIFIED AND FULLY COMPENSATED IN THE CHANGE ORDER. The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the Work. The Contractor forever releases any claim against the Owner for additional time or compensation for matters relating to or arising out of or resulting from the Work included within or affected by the executed Change Order. This release applies to claims related to the cumulative impact of all Change Orders and to any claim related to the effect of a change on other Work. (c) No extra work (except under emergency conditions) or changes shall be made nor shall any substitutions, changes or additions to or omissions or deviations from the requirements of the Drawings and Specifications be made unless pursuant to a written Change Order signed by the Owner and the Architect/Engineer, it being expressly understood that the Owner shall not be liable for the cost of extra work or any substitution, change, addition, omission or deviation from the requirements of the Drawings or Specifications unless the same shall have been authorized in writing by the Owner and the Architect /Engineer in a written change order or other Amendment. The provisions of this Paragraph 7.1 shall control in the event of any inconsistency between such provisions and the other provisions of this Article 7. See Subparagraph 10.3(a) of the General Conditions for Change Orders under emergency conditions. (d) The method of determining the cost or credit to the Owner for any change in the Work shall be one of the following: (1) mutual acceptance of a not -to- exceed lump sum amount properly itemized and supported by sufficient substantiating data to permit evaluation; (2) unit prices stated in the Contract Documents or subsequently agreed upon; (3) cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or (4) the force account method provided in Subparagraph 7.1(e) (e) If the parties cannot agree to one of the methods of calculating cost provided in Clauses (d) (1), (d) (2), or (d) (3), or if the parties agree to a method but cannot agree to a final dollar figure, or if the Contractor for whatever reason refuses to sign the Change Order in question, the Contractor, provided he receives a written order signed by the Owner, shall promptly proceed with the Work involved. The cost of the Work involved shall then be calculated on the basis of the reasonable jobsite expenditures and savings of those performing the Work attributable to the changes, including a reasonable allowance for overhead and profit, such allowance in any case never to exceed 15 %. In such case, the Contractor shall keep an itemized accounting of the Work involved, on a daily basis, in such form and with the appropriate supporting data as the Architect/Engineer and Owner may prescribe. Sworn copies of the itemized accounting shall be delivered to the Architect /Engineer each day during the performance of force account work, with copies to the Owner. File 5761 EXHIBIT 4 FAILURE OF THE CONTRACTOR TO SUBMIT THE SWORN -TO ITEMIZED ACCOUNTING DAILY AS REQUIRED HEREIN SHALL CONSTITUTE A WAIVER BY THE CONTRACTOR OF ANY RIGHT TO DISPUTE THE OWNER'S DETERMINATION OF THE AMOUNT DUE THE CONTRACTOR FOR FORCE ACCOUNT WORK. Costs to be charged under this Subparagraph for force account work are limited to the following: (1) costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers compensation insurance; (2) costs of materials, supplies and equipment (but not to include off -site storage unless approved in writing by the Owner), whether incorporated or consumed; (3) rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; (4) costs of premiums for all bonds and insurance related to the Work; and (5) additional costs of supervision and field office personnel directly attributable to the changed Work. Pending final determination of cost to the Owner, payment of undisputed amounts on force account shall be included on the Architect/Engineer's Certificate of Payment as work is completed. (f) The amount of credit to be allowed to the Owner for any deletion of Work or any other change which results in a net decrease of the Contract Sum shall be the amount of actual net cost confirmed by the Architect/Engineer plus the stated percentage for overhead and profit. When both additions and deletions or credits covering related Work or substitutions are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase or decrease with respect to that change. 7.2 SUPPLEMENTAL AGREEMENTS A written Supplemental Agreement can also be used to implement changes in the Work instead of a Change Order form, including but not limited to situations involving partial occupancy of the Work under Paragraph 9.8, a change made to the Drawings or the Specifications without an increase in the Contract Sum, or special circumstances where it is necessary or more appropriate for the Owner to use a Supplemental Agreement. Written Supplemental Agreements shall have a status equal to that of Change Orders for purposes of priority of Contract Documents interpretation, except that to the extent of a conflict, later Supplemental Agreements in time control over earlier Supplemental Agreements, and the latest Change Order or Supplemental Agreement in time controls over earlier dated Change Orders and Supplemental Agreements. The rules of Subparagraphs 7.1(b) through (f) shall also apply to the negotiation and execution of Supplemental Agreements. 7.3 MINOR CHANGES IN THE WORK The Architect /Engineer, after notifying the Owner, shall be authorized to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the File 5761 EXHIBIT 4 Contract Time and not inconsistent with the intent of the Contract Documents. Minor changes shall be effected by written order, and shall be binding on the Owner and the Contractor. The Contractor shall carry out such written orders promptly. These written orders shall not be deemed to change or impact the Contract Sum or the Contract Time. Contractor shall have no Claim for any minor change ordered to the Work under this Paragraph 7.3 unless the Contractor submits its change proposal, prior to complying with the minor change ordered and in no event later than ten (10) working days from the date the minor change was ordered, to the Owner for approval. 7.4 TIME REQUIRED TO PROCESS AMENDMENTS (a) All of the Contractor's responses to proposal requests shall be accompanied by a complete, itemized breakdown of costs. Responses to proposal requests shall be submitted sufficiently in advance of the required work to allow the Owner and the Architect /Engineer a minimum of thirty (30) calendar days after receipt by the Architect /Engineer to review the itemized breakdown and to prepare or distribute additional documents as may be necessary. All of the Contractor's responses to proposal requests shall include a statement that the cost described in the response represents the complete, total and final cost and additional Contract Time associated with the extra work, change, addition to, omission, deviation, substitution, or other grounds for seeking extra compensation under the Contract Documents, without reservation or further recourse. (b) All Amendments require approval by either the City Council or, where authorized by the state law and City ordinance, by the City Manager pursuant to Administrative Action. The approval process requires a minimum of forty -five (45) calendar days after submission to the Owner in final form with all supporting data. Receipt of a submission by Owner does not constitute acceptance or approval of a proposal, nor does it constitute a warranty that the proposal will be authorized by City Council Resolution or Administrative Action. THE TIME REQUIRED FOR THE APPROVAL PROCESS SHALL NOT BE CONSIDERED A DELAY AND NO EXTENSIONS TO THE CONTRACT TIME OR INCREASE IN THE CONTRACT SUM WILL BE CONSIDERED OR GRANTED AS A RESULT OF THIS PROCESS. Pending the approval described above, the Contractor will proceed with the work under a pending Amendment only if directed in writing by the Owner. ARTICLE 8 CONTRACT TIME 8.1 DEFINITIONS (a) Unless otherwise provided, the Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. (b) The date of commencement of the Work is the date established in the notice to proceed from the Owner. The date of commencement shall not be postponed by the failure of the Contractor, or of persons or entities for whom the Contractor is responsible to act promptly to commence the Work. If the Owner unreasonably delays the issuance of the notice to proceed through no fault of the Contractor, the Contractor shall be entitled only File 5761 EXHIBIT 4 to an equitable extension of the Contract Time; the Contract Sum shall remain unchanged. (c) The date of Substantial Completion is the date certified by the Architect/Engineer in accordance with Paragraph 9.7. (d) The term "day" as used in the Contract Documents shall mean a calendar day, beginning and ending at 12:00 midnight, unless otherwise specifically defined by special provision. 8.2 PROGRESS AND COMPLETION (a) Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Building Construction Services Agreement, the Contractor confirms that the Contract Time is a reasonable period for performing the Work. (b) The Contractor shall not knowingly, except by agreement with or instruction of the Owner in writing, prematurely commence operations on the Project site or elsewhere prior to the effective date of insurance to be furnished by the Contractor as required by Article 11. The date of commencement of the Work shall not be changed by the effective date of insurance required by Article 11. (c) Liquidated Damages. The Contractor shall proceed expeditiously with adequate forces, materials, and equipment, and shall achieve Substantial Completion within the Contract Time. If the Contractor fails or refuses to complete the Work within the Contract Time as specified in the Bid Proposal form, the Building Construction Services Agreement, or in any proper extension of the Contract Time granted by the Owner, then the Contractor agrees, as a part of the consideration for the awarding of the Contract, to pay to the Owner the amount of liquidated damages (hereinafter called the "Stipulated Amount ") as stipulated in the Bid Proposal form and the Building Construction Services Agreement for each calendar day that the Contractor has not Substantially Completed the Work after the expiration of the Contract "Time provided. The Stipulated Amount is not to be considered as a penalty, but shall be deemed, taken, or treated as reasonable liquidated damages, fixed and agreed upon by and between the Contractor and the Owner because of the impracticality and extreme difficulty of fixing and ascertaining the actual damages the Owner would sustain in the event of the Contractor's late completion of the Project, and the stipulated amount is agreed to be the daily amount of damages that the Owner would sustain, The Stipulated Amount, as it accrues, will be retained from any portion of the Contract Sum due or that may become due to the Contractor. In the event the portion of the Contract Sum retained by the Owner is insufficient to recover the Stipulated Amount, then the Contractor or the Contractor's Surety shall pay to the Owner any additional liquidated damages due that are in excess of the funds remaining unpaid in the Contract Sum. The Owner shall be the sole judge as to whether or not the Work has been Substantially Completed within the calendar days allotted, which shall include the original Contract Time and any proper extension of the Contract Time granted in writing by the Owner. Should the Contractor dispute the Owner's determination of liquidated damages due, however, or should the Contractor, or the Contractor's agents or assigns, institute any legal action against the Owner to enforce rights under the Contract File 5761 EXHIBIT 4 Documents, then this Subparagraph 8.2(c) shall not be construed to prevent the Owner from seeking full recovery for any and all actual damages suffered by the Owner and attributable to the Contractor, as an alternative to all liquidated damages due. 8.3 DELAYS AND EXTENSIONS OF TIME (a) If the Contractor is delayed at any time in the progress of the Work by an act or neglect of the Owner or Architect/Engineer, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending a claim, or by other causes which the Architect/Engineer determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect/Engineer and Owner may determine. (b) Claims relating to Contract Time and time extensions shall be made in accordance with the applicable provisions of Paragraph 4.3. (c) No Damages for Delay. NOTWITHSTANDING ANY OTHER PROVISIONS OF THE CONTRACT DOCUMENTS, INCLUDING THE GENERAL CONDITIONS, NO ADJUSTMENT SHALL BE MADE TO THE CONTRACT SUM AND THE CONTRACTOR SHALL NOT BE ENTITLED TO CLAIM OR RECEIVE ANY ADDITIONAL COMPENSATION AS A RESULT OF OR ARISING OUT OF ANY DELAY, HINDRANCE, DISRUPTION, FORCE MAJEURE, IMPACT, OR INTERFERENCE, INTENTIONAL OR UNINTENTIONAL, FORESEEN OR UNFORESEEN, WHICH INCREASES THE TIME TO COMPLETE THE WORK, INCLUDING BUT NOT LIMITED TO ANY DELAYS CAUSED IN WHOLE OR IN PART BY THE ACTS, OMISSIONS, FAILURES, NEGLIGENCE, OR FAULT OF THE OWNER, THE ARCHITECT /ENGINEER, OR THE OWNER'S REPRESENTATIVE, AN EXTENSION OF THE CONTRACT TI.ME UNDER SUBPARAGRAPH 8.3(a) BEING THE CONTRACTOR'S SOLE REMEDY. (d) The Owner shall have the right to occupy, without prejudice to the right of either party, any completed or largely completed portions of the structure or Work, notwithstanding the fact that the Contract Time for completing all or a portion of the Work may not have expired. Partial occupancy and use shall not be deemed as an acceptance of the Work taken or used. (e) The Contractor shall promptly suspend the Work when either the Contractor or the Owner is ordered to do so by a court order from a court having lawful jurisdiction, and the Contractor will not be entitled to additional compensation by virtue of any delays resulting from the court order. The Contractor will also not be liable to the Owner for a delay caused in fact by the Work being suspended by a court order. (f) The Architect/Engineer, with the consent of the Owner, shall have the authority to suspend the Work, in whole or in part, for such period or periods as the Architect/Engineer deems necessary due to unusual or severe weather conditions as are considered unfavorable for the suitable prosecution of the Work, or due to failure on the File 5761 EXHIBIT 4 part of the Contractor to correct conditions considered unsafe for workmen or the general public. If it should become necessary to stop the Work for an indefinite period, the Contractor shall store all materials in such a manner that they will not obstruct or impede the public unnecessarily or become damaged in any way, and shall take every precaution to prevent damage or deterioration of the Work performed. In cases of suspension of the Work under this Subparagraph, the Contractor shall also provide suitable drainage about the Work and erect temporary structures where necessary. The Contractor shall not suspend the Work in whole or in part without written authority from the Architect/Engineer or the Owner, and shall resume the Work promptly when notified by the Architect /Engineer or the Owner to resume operations. (g) In the event of a delay that is the responsibility of the Contractor or any of the Subcontractors, for which the Contractor is not entitled to a time extension under the provisions of this Contract, the Owner may direct that the Work be accelerated by means of overtime, additional crews or additional shifts, or resequencing. This acceleration shall be at no cost to the Owner and will continue until the Contract Time is restored. In the event of a delay for which the Contractor is entitled to a time extension, as determined by the Architect/Engineer, Owner may similarly direct acceleration and the Contractor agrees to perform same on the basis that the Contractor will be reimbursed only to the extent described in Subparagraph 4.3(i), THE CONTRACTOR EXPRESSLY WAIVES ANY OTHER COMPENSATION RESULTING FROM ACCELERATION, SUCH AS LOSS OF LABOR PRODUCTIVITY OR EFFICIENCY. ARTICLE 9 PAYMENTS AND COMPLETION 9.1 CONTRACT SUM The Contract Sum is stated in the Building Construction Services Agreement and, including authorized adjustments, is the total amount of compensation payable by the Owner to the Contractor for the performance of the Work under the Contract Documents. 9.2 SCHEDULE OF VALUES Before the first Application for Payment, the Contractor shall submit to the Architect/Engineer a schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Architect/Engineer may require. This schedule, when approved by the Architect/Engineer and the Owner, shall be used as a basis for the Contractor's Application for Payment. The schedule of values shall follow the trade division of the Specifications. Contractor's Application for Payment shall be filed on the current version of AIA Form G702 (Application and Certificate for Payment), as approved by the Owner. 9.3 APPLICATIONS FOR PAYMENT (a) At least ten (10) days before the date established for each progress payment, the Contractor shall submit to the Architect /Engineer an itemized Application for Payment File 5761 EXHIBIT 4 for Work completed in accordance with the schedule of values. The Application shall be notarized, if required, and supported by data substantiating the Contractor's right to payment as the Owner or Architect /Engineer may require, including but not limited to copies of requisitions from Subcontractors and material suppliers, and reflecting the applicable retainage as required in the Contract Documents. Contractor's Application for Payment shall also provide other supporting documentation as the Owner or the other applicable provisions of the Contract Documents may require. (b) Applications for Payment may not include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor because of a good faith dispute, unless the Contractor complies with Clause 5.3(b) (2) of these General Conditions and the Contractor's Payment Bond Surety consents in writing to payment to the Contractor of the funds deemed to be in dispute. (c) Unless otherwise provided in the Contract Documents, progress payments shall include payment for materials and equipment delivered and suitably stored at the Project site for subsequent incorporation into the Work within thirty (30) days after delivery to the Project site. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored away from the Project site at a location agreed upon in writing. Payment for costs incurred in storage of materials or equipment away from the Project site will NOT be made by Owner unless: (1) the Owner has given prior approval of such off -site storage in writing; (2) the materials or equipment are stored in a bonded warehouse located in Denton County and identified with the Project for which they are stored, as evidenced by warehouse receipts and appropriate documents of title; and (3) the materials or equipment stored off -site will be incorporated into the Work within thirty (30) days after delivery. STORAGE IN FACILITIES OF THE MANUFACTURER OR THE CONTRACTOR WILL NOT BE PERMITTED OR PAID FOR, UNLESS THE OWNER HAS EXPRESSLY GIVEN PRIOR APPROVAL OF SUCH STORAGE IN WRITING. (d) The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials, and equipment relating to the Work. (e) All materials or equipment delivered to the Project site earlier than thirty (30) days prior to an approved schedule for delivery to the Project site shall be classified as an "early delivery." All early delivery materials or equipment must have the express written permission of the Owner to be stored on the Project site. If any unauthorized early delivery occurs, Contractor shall, at Contractor's expense or at the expense of the responsible Subcontractor or Supplier, cause such early delivery to be removed from the Project site and stored off -site until required at the Project site. All costs of labor, File 5761 EXHIBIT 4 transportation and storage will be included as part of the expense. If the Contractor fails or refuses to remove unauthorized early delivery materials, the Owner may cause such materials to be removed at the Contractor's sole expense, and amounts may be withheld from the Contractor's Application for Payment to reimburse the Owner for any costs incurred in removing unauthorized early delivery materials. OWNER WILL NOT BE RESPONSIBLE FOR THE PROTECTION OF OR RISK OF LOSS ON ANY EARLY DELIVERY MATERIALS OR EQUIPMENT, NOR WILL OWNER BE LIABLE FOR ANY PAYMENT FOR THE EARLY DELIVERY MATERIALS OR EQUIPMENT. Any materials or equipment classified as early delivery will not be approved for payment as stored materials prior to thirty (30) days before the incorporation of the materials or equipment into the Work, unless storage and payment at an earlier date is expressly approved in writing by the Owner. (f) If the Contract Sum is equal to or less than $25,000.00 and performance and payment bonds are not furnished by the Contractor, no payment applied for will be payable under the Contract until the Work has been Finally Completed and accepted. 9.4 CERTIFICATES FOR PAYMENT (a) The Architect/Engineer will, within ten (10) days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect/Engineer determines is properly due, or notify the Contractor and Owner in writing of the Architect/Engineer's reasons for withholding certification in whole or in part as provided in (a) City of Denton General Conditions for Building Construction. (b) Subparagraph 9.5(a). The Certificate for Payment shall be issued on the current version of AIA Form G702 (Application and Certificate for Payment) as approved by the Owner. (c) The issuance of a Certificate for Payment will constitute a representation by the Architect /Engineer to the Owner, based on the Architect/Engineer's observations at the site and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect/Engineer's knowledge, information and belief, quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial and Final Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to Final Completion and to specific qualifications expressed by the Architect/Engineer. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified, subject to the Owner's approval. The issuance of a Certificate for Payment is not a representation that the Architect/Engineer has: (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, sequences or procedures; File 5761 EXHIBIT 4 (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment; or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. (d) Whenever the Application for Payment for Work done since the last previous Application for Payment exceeds one hundred dollars ($100.00) in amount, Owner will pay a percentage of the Application, less applicable retainage, to the Contractor within thirty (30) days following Owner's receipt and approval of the Certificate for Payment certified by the Architect/Engineer. The Application may include acceptable nonperishable materials delivered to the Work or stored as provided for in Paragraph 9.3(c) and the payment will be allowed on the net invoice value, less taxes and applicable retainage. (e) The City is required to withhold retainage for public works contracts in which the total contract price estimate at the time of execution is more than $400,000; however, this requirement is applied by the City for all public works contracts in excess of $50,000. The City may require varying percentage withholding amounts; however, the City requires five percent. The retainage will be withheld by the Owner from each progress payment until final completion of the Work by the Contractor, approval of final completion by the Architect/Engineer, and final acceptance of the Work by the Owner. Unless otherwise required by state law, the retainage percentage as specified above is based upon the original Contract Sum, and will not be affected in the event the original Contract Sum is subsequently increased or decreased by Change Order. (f) No progress payments shall be made on contracts where performance and payment bonds are not required or furnished. In such instances, payment for the Work performed will be made upon final completion and acceptance by the Owner of all Work. 9.5 DECISIONS TO WITHHOLD CERTIFICATION (a) The Architect /Engineer or the Owner may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner's interest, if in the Architect/Engineer's or Owner's opinion the representations to the Owner required by Subparagraph 9.4(b) cannot be made. If the Architect/Engineer or the Owner is unable to certify payment in the amount of the Application, the Architect/Engineer or the Owner will notify the Contractor as provided in Subparagraph 9.4(a). If the Contractor and Architect/Engineer or the Owner cannot agree on a revised amount, the Architect/Engineer will promptly issue a Certificate for Payment for the amount for which the Architect/Engineer is able to make the required representations to the Owner. The Architect/Engineer or the Owner may also decide not to certify payment or, because of subsequently discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued to such extent as may be necessary, in the Architect/Engineer's or Owner's opinion, to protect the Owner from loss because o£ File 5761 EXHIBIT 4 (1) defective or nonconforming Work not remedied; (2) third party claims filed or reasonable evidence indicating probable filing of such claims; (3) failure of the Contractor to make payments properly to Subcontractors or for labor, materials, or equipment; (4) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (5) damage to the Owner or another contractor; (6) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; (7) persistent failure to carry out the Work in accordance with the Contract Documents; or (8) mathematical or other errors that are discovered in the Application for Payment. (b) When each of the above reasons that existed for withholding certification are removed or remedied, certification will be made for amounts previously withheld. (c) The Owner may, at its option, offset any progress payment or final payment under the Contract Documents against any debt (including taxes) lawfully due to the Owner from the Contractor, regardless of whether the amount due arises pursuant to the terms of the Contract Documents or otherwise and regardless of whether or not the debt due to the Owner has been reduced to judgment by a court. 9.6 PROGRESS PAYMENTS (a) After the Architect/Engineer has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect/Engineer. The Owner shall not be liable for interest on any late or delayed progress payment or final payment caused by any claim or dispute, any discrepancy in quantities, any failure to provide supporting documentation or other information required with the Application for Payment or as a precondition to payment under the Contract Documents, or due to any payment the Owner or the Architect/Engineer has a right to withhold or not certify under the Contract Documents. Notwithstanding the foregoing, the Owner may refuse to make payment on any Certificate for Payment (including, without limitation, the final Certificate for Payment) for any default under the Contract Documents, including but not limited to those defaults set forth in Subparagraph 9.5(a), Clauses (1) through (7). The Owner shall not be deemed in default by reason of withholding payment while any Contractor default remains uncured. File 5761 EXHIBIT 4 (b) The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of each Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractors portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - subcontractors in similar manner. (c) The Architect /Engineer will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect/Engineer and the Owner on account of portions of the Work done by such Subcontractor. (d) Neither the Owner nor the Architect/Engineer shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. That obligation belongs to the Contractor or, in the event of the Contractor's failure to pay a Subcontractor, to the Surety on the Payment Bond as required under Paragraph 11.3. (e) Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6(b), (c), and (d). (f) A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not performed in accordance with the Contract Documents. 9.7 SUBSTANTIAL COMPLETION (a) The Date of Substantial Completion of the Work, or designated portion of the Work, is the date certified by the Architect/Engineer when construction is sufficiently completed in accordance with the City Of Denton General Conditions For Building Construction. (a) the Contract Documents such that the Owner may beneficially occupy and use the Work, or designated portions of the Work, for the purposes for which it is intended and only trivial and insignificant items remain which do not affect the Work as a whole. (b) When the Contractor considers that the Work, or the portion of the Work which the Owner agrees to accept separately, is Substantially Complete, the Contractor shall prepare and submit to the Architect/Engineer a comprehensive list of remaining items to be completed or corrected. The Contractor shall proceed promptly to complete and correct items on the list (hereinafter called the "punch list "). Failure to include an item on the punch list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. Upon receipt of the punch list, the Architect/Engineer will make an inspection to determine whether the Work, or designated portion of the Work, is Substantially Complete. If the Architect/Engineer's inspection discloses any item, whether or not included on the punch list, which is not in accordance with the requirements of the Contract Documents and which renders the Work inspected File 5761 EXHIBIT 4 not Substantially Complete the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct the item upon notification by the Architect /Engineer. The Contractor shall then submit a request for another inspection by the Architect/Engineer to determine Substantial Completion. When the Work or designated portion of the Work is Substantially Complete, the Architect/Engineer will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the punch list accompanying the Certificate. (c) The Certificate of Substantial Completion shall be submitted to the Owner and the Contractor for their written acceptance of responsibilities assigned to them in the Certificate. (d) Upon Substantial Completion of the Work or designated portion thereof and upon application by the Contractor and certification by the Architect /Engineer, the Owner shall make payment, reflecting adjustment in retainage, if any, for the Work, or portion of the Work, as provided in the Contract Documents. 9.8 PARTIAL OCCUPANCY OR USE (a) The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate Supplemental Agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Subparagraph 11.2(e) and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is Substantially Complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the Architect/Engineer as provided under Subparagraph 9.7(b). Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the (a) progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect/Engineer. (b) Immediately prior to such partial occupancy or use, the Owner, Contractor, and Architect/Engineer shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. (c) Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. File 5761 EXHIBIT 4 9.9 FINAL COMPLETION AND FINAL PAYMENT (a) Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect/Engineer, accompanied by the Owner's representative, will promptly make final inspection and, when the Architect/Engineer finds the Work acceptable under the Contract Documents and the Contract Documents fully performed, the Architect/Engineer will promptly issue a final Certificate for Payment stating that to the best of the Architect /Engineer's knowledge, information and belief, and on the basis of the Architect/Engineer's observations and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in said final Certificate is due and payable. The Architect/Engineer's final Certificate for Payment will constitute a further representation that conditions listed in Subparagraph 9.9(b) as a condition precedent to the Contractor's being entitled to final payment have been fulfilled. Owner will normally make final payment within thirty (30) days after Owner's receipt and approval of the final Certificate for Payment. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work, unless otherwise provided by separate agreement between the Owner and the Contractor. (b) Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect/Engineer: (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been given to the Owner; (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; (4) a consent of surety to final payment; and (5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. (c) As a precondition to final payment by the Owner under this Contract, the Contractor's affidavit under Clause (b)(1) shall state that the Contractor has paid each of his subcontractors, laborers or materialmen in full for all labor and materials provided to him for the Work under this Contract. In the event the Contractor has not paid each of his subcontractors, laborers or materialmen in full, the Contractor shall state in the affidavit the amount owed and the name of each subcontractor, laborer or materialmen to whom File 5761 EXHIBIT 4 such payment is owed. IN ANY EVENT, THE CONTRACTOR SHALL BE REQUIRED TO EXECUTE THE OWNER'S STANDARD AFFIDAVIT OF FINAL PAYMENT AND RELEASE AS A PRECONDITION TO RECEIPT OF FINAL PAYMENT. (d) If, after Substantial Completion of the Work, final completion of the Work is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion and the Architect/Engineer confirms the delay, the Owner shall, upon application by the Contractor and certification by the Architect/Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect/Engineer prior to certification of payment. Payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. (e) The acceptance by the Contractor of the final payment shall operate as and shall be a complete release of the Owner from all claims or liabilities under the Contract, for anything done or furnished or relating to the Work or the Project, or for any act or neglect of the Owner relating to or connected with the Work or the Project. ARTICLE 10 SAFETY, SECURITY AND UTILITY PROVISIONS; ENVIRONMENTAL COMPLIANCE 10.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract, and will comply with all applicable City, County, State and Federal health and safety regulations. 10.2 SAFETY OF PERSONS AND PROPERTY (a) The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (1) employees on the Work and other persons who may be affected thereby; (2) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub - subcontractors; and (3) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. File 5761 EXHIBIT 4 (b) The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. (c) The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. (d) When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. (e) USE OF EXPLOSIVES - CLAIMS AND TOTAL INDEMNIFICATION. The Owner shall have the right to pre- approve the use of any explosives on the Project; the Contractor shall not assume in its bid that permission to use explosives will be granted. The Owner shall NOT be liable for any claim for additional time or compensation as a result of the Owner's denial of permission to use explosives. Where use of explosives is permitted by the Owner, the Contractor EXPRESSLY AGREES TO BE SOLELY RESPONSIBLE for the determination as to whether explosives shall actually be used, and for any result from the use, handling or storage of explosives, and shall INDEMNIFY, DEFEND AND HOLD COMPLETELY HARMLESS the Owner, its officers, agents and employees, and the Architect/Engineer against any and all claims, lawsuits, judgments, costs or expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, as the result of the use, handling or storage of the explosives by the Contractor or any Subcontractor, REGARDLESS OF WHETHER SAID USE, HANDLING OR STORAGE WAS NEGLIGENT OR NOT, AND REGARDLESS OF WHETHER THE DAMAGE OR INJURY WAS CONTRIBUTED TO IN ANY WAY BY THE NEGLIGENCE OR FAULT OF THE OWNER, ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES, OR THE ARCHITECT/ENGINEER AND ITS OFFICERS, AGENTS, EMPLOYEES, OR REPRESENTATIVES. In the event of conflict with any other indemnity paragraph in this Contract, this paragraph controls. This indemnity paragraph is intended solely for the benefit of the parties to this Contract and is not intended to create or grant any rights, contractual or otherwise, to or for any other person or entity. The Contractor shall furnish the Owner and the Architect /Engineer with evidence of insurance sufficient to cover possible damage or injury, which insurance shall either include the Owner and the Architect /Engineer as additional insureds or be sufficiently broad in coverage as to fully protect the Owner and the Architect/Engineer. All explosives shall be stored in a safe and secure manner, under the care of a competent watchman at all times, and all storage places shall be marked clearly "DANGEROUS - EXPLOSIVES." The method of storing and handling explosives and highly flammable materials shall conform to Federal and State laws, City of Denton ordinances, and the City of Denton Fire Department regulations. The Contractor shall notify any telecommunications and public utility company and any private property owners having structures in the proximity of the Project Site of the Contractor's intention to use explosives, and such notice shall be given sufficiently in advance to enable the File 5761 EXHIBIT 4 telecommunications and public utility companies and private property owners to take such steps as they may deem necessary to protect their property from injury. The notice shall not relieve the Contractor of any responsibility for damage resulting from any blasting operations. (f) The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Clauses 10.2(a)(2) and 10.2(a)(3) caused in whole or in part by the Contractor, a Subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Clauses 10.2(a)(2) and 10.2(a)(3), except damage or loss attributable to acts or omissions of the Owner or Architect /Engineer or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor or any of its Subcontractors. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 3.19. To the extent that any such damage or loss may be covered by property insurance or other insurance required by the Contract Documents, the Owner and the Contractor shall exercise their best efforts to make a claim and obtain recovery from the insurers to provide for the cost, in whole or in part, of the repair work or to provide for reimbursement for such damage or loss. (g) The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect/Engineer. (h) The Contractor shall not load or permit any part of the Work or the Project site to be loaded so as to endanger its safety. 10.3 EMERGENCIES In an emergency affecting safety, health, or security of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury, or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7. 10.4 PUBLIC CONVENIENCE AND SAFETY (a) The Contractor shall place materials stored about the Work and shall conduct the Work at all times in a manner that causes no greater obstruction to the public than is considered necessary by the Owner. Sidewalks or streets shall not be obstructed, except by special permission of the Owner. The materials excavated and the construction materials or plant used in the performance of the Work shall be placed in a manner that does not endanger the Work or prevent free access to all fire hydrants, water mains and appurtenances, water valves, gas valves, manholes for the telephone, telegraph signal or electric conduits, wastewater mains and appurtenances, and fire alarm or police call boxes in the vicinity. File 5761 EXHIBIT 4 (b) The Owner reserves the right to remedy any neglect on the part of the Contractor in regard to public convenience and safety which may come to the Owner's attention, after twenty -four (24) hours notice in writing to the Contractor. In case of an emergency, the Owner shall have the right to immediately remedy any neglect without notice. In either case, the cost of any work done by the Owner to remedy the Contractor's neglect shall be deducted from the Contract Sum. The Contractor shall notify the City Traffic Control Department when any street is to be closed or obstructed. The notice shall, in the case of major thoroughfares or street upon which transit lines operate, be forty -eight (48) hours in advance. The Owner reserves the right to postpone or prohibit any closure or obstruction of any streets or thoroughfares to the extent necessary for the safety and benefit of the traveling public. The Contractor shall, when directed by the Architect /Engineer or the Owner, keep any street or streets in condition for unobstructed use by City departments. When the Contractor is required to construct temporary bridges or make other arrangements for crossing over ditches or around structures, the Contractor's responsibility for accidents shall include the roadway approaches as well as the crossing structures. 10.5 BARRICADES, LIGHTS AND WATCHMEN If the Work is carried on or adjacent to any street, alley or public place, the Contractor shall, at the Contractor's own cost and expense, furnish, erect and maintain sufficient barricades, fences, lights and danger signals, shall provide sufficient watchmen, and shall take such other precautionary measures as are necessary for the protection of persons or property and of the Work. All barricades shall be painted in a color that will be visible at night, shall indicate in bold letters thereon the Contractor's name and shall be illuminated by lights from sunset to sunrise. The term "lights," as used in this Paragraph, shall mean flares, flashers, or other illuminated devices. A sufficient number of barricades with adequate markings and directional devices shall also be erected to keep vehicles from being driven on or into any Work under construction. The Contractor will be held responsible for all damage to the Work due to failure of barricades, signs, lights and watchmen to protect the Work. Whenever evidence is found of such damage, the Architect/Engineer may order the damaged portion immediately removed and replaced by the Contractor at Contractor's cost and expense. The Contractor's responsibility for maintenance of barricades, signs, and lights, and for providing watchmen, shall not cease until the Project has been finally accepted by the Owner. 10.6 PUBLIC UTILITIES AND OTHER PROPERTIES TO BE CHANGED In case it is necessary to change or move the property of the Owner or of any telecommunications or public utility, such property shall not be removed or interfered with until ordered to do so by the Architect /Engineer. The right is reserved to the owner of any public or private utilities to enter upon the Project site for the purpose of making such changes or repairs of their property that may become necessary during the performance of the Work. The Owner reserves the right of entry upon the Project site for any purpose, including repairing or relaying sewer and water lines and appurtenances, repairing structures, and for making other repairs, changes, or extensions to any of the Owner's File 5761 EXHIBIT 4 property. The Owner's actions shall conform to the Contractor's current and approved schedule for the performance of the Work, provided that proper notification of schedule requirements has been given to the Owner by the Contractor. 10.7 TEMPORARY STORM SEWER AND DRAIN CONNECTIONS When existing storm sewers or drains have to be taken up or removed, the Contractor shall at his own expense provide and maintain temporary outlets and connections for all public and private storm sewers and drains. The Contractor shall also take care of all storm sewage and drainage which will be received from these storm drains and sewers; for this purpose, the Contractor shall provide and maintain, at the Contractor's own expense, adequate pumping facilities and temporary outlets or diversions. The Contractor shall, at the Contractor's own expense, construct such troughs, pipes, or other structures necessary and shall be prepared at all times to dispose of storm drainage and sewage received from these temporary connections until such time as the permanent connections are built and in service. The existing storm sewers and connections shall be kept in service and maintained under the Contract, except where specified or ordered to be abandoned by the Architect/Engineer. All storm water and sewage shall be disposed of in a satisfactory manner so that no nuisance is created and that the Work under construction will be adequately protected. 10.8 ARRANGEMENT AND CHARGE FOR WATER FURNISHED BY THE OWNER; ELECTRICITY FOR THE PROJECT (a) When the Contractor desires to use the Owner's water in connection with the Work, the Contractor shall make complete and satisfactory arrangements with the Denton Water Utilities Department and shall be responsible for the cost of the water the Contractor uses. Where meters are used, the charge will be at the regular established rate; where no meters are used, the charge will be as prescribed by City ordinance, or where no ordinance applies, payment shall be based on estimates made by the Denton Water Utilities Department. (b) The Contractor shall make complete and satisfactory arrangements for electricity and metered electrical connections with the Owner or with Denton Municipal Electric in the event that separately metered electrical connections are required for the Project. The Contractor shall pay for all electricity used in the performance of the Work through separate metered electrical connections obtained by the Contractor through the City of Denton. 10.9 USE OF FIRE HYDRANTS The Contractor, Subcontractors, and any other person working on the Project shall not open, turn off, interfere with, attach any pipe or hose to, or connect anything with any fire hydrant, stop valve, or stop cock, or tap any water main belonging to the Owner, unless duly authorized to do so by the Denton Water Utilities Department in accordance with the Denton City Code. File 5761 EXHIBIT 4 10.10 ENVIRONMENTAL COMPLIANCE (a) The Contractor and its Subcontractors are deemed to have made themselves familiar with and at all times shall comply with all applicable federal, state or local laws, rules, regulations, ordinances, and rules of common law now in effect (including any amendments now in effect), relating to the environment, Hazardous Substances or exposure to Hazardous Substances, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A. §§ 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic Substances Control Act, 15 U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A. §§ 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C.A. §§ 3808, et seq., and any current judicial or administrative interpretation of these laws, rules, regulations, ordinances, or rules of common law, including but not limited to any judicial or administrative order, consent decree, or judgment affecting the Project. (b) In the event the Contractor encounters on the site materials reasonably believed to be a Hazardous Substance that have not been rendered harmless, and removal of such materials is not a part of the scope of Work required under the Contract Documents, the Contractor shall immediately stop Work in the affected area and report in writing the facts of such encounter to the Architect/Engineer and the Owner. Work in the affected area shall not thereafter be resumed except by written order of the Owner unless and until the material is determined not to be a Hazardous Substance or the Hazardous Substance is remediated. The Owner may choose to remediate the Hazardous Substance with a separate contractor or through a Change Order with the Contractor. If the Owner determines that the Hazardous Substance exists in the affected area due to the fault or negligence of the Contractor or any of its Subcontractors, the Contractor shall be responsible for remediating the condition at the sole expense of the Contractor in accordance with the Contractor's APPROVED Spill Remediation Plan. An extension of the Contract Time for any delay in the progress schedule caused as a result of the discovery and remediation of a Hazardous Substance may be granted by the Owner only if all remaining Work on the Project must be suspended and the delay cannot be made up elsewhere in the progress schedule. Any request for an extension of the Contract Time related to the discovery and remediation of a Hazardous Substance is subject to the provisions of Paragraph 4.3 and Article 8. (c) The Contractor shall be responsible for identification, abatement, cleanup, control, removal, remediation, and disposal of any Hazardous Substance brought into or upon the site by the Contractor or any Subcontractor or Supplier. The Contractor shall obtain any and all permits necessary for the legal and proper handling, transportation, and disposal of the Hazardous Substance and shall, prior to undertaking any abatement, cleanup, control, removal, remediation, and disposal, notify the Owner and the Architect/Engineer so that they may observe the activities; provided, however, that it shall be the Contractor's sole responsibility to comply with all applicable laws, rules, regulations, or ordinances governing the activities. File 5761 EXHIBIT 4 (d) Spill Prevention Plan. At least seventy -two (72) hours prior to commencing performance of any of the Work at the Project site, the Contractor shall submit to the Owner for review and approval a Spill Prevention and Response Plan (SPRP) meeting the requirements of federal and state law, rules, and regulations. The SPRP shall be specially designed for the Contractor's planned work methods and procedures. The SPRP shall be designed to complement all applicable safety standards, fire prevention regulations, and pollution prevention policies and procedures. The SPRP shall include estimates of the quantity and rate of flow should equipment fail, and detail containment or diversionary structures to prevent spills from leaving the site or migrating into adjacent properties or navigable waters. The SPRP shall include methods of recovery of spilled materials and all applicable twenty -four (24) hour emergency phone numbers, including without limitation that of the Owner's Project Manager or other designated representative. The Contractor shall not commence any field work prior to approval of such plan by the Owner. The following additional rules shall apply with respect to spills caused by the Contractor or a Subcontractor: (1) The Contractor shall immediately report any spill or release at the Project site, whether or not it is associated with this Contract, to the Owner's Project Manager or other designated representative. Thereafter, within two (2) working days after the occurrence of such event, the Contractor shall submit a written report describing such event in a degree of detail reasonably acceptable to the Owner. (2) The Contractor shall immediately respond in accordance with the SPRP in the event of a spill. (3) The Contractor shall dispose of spilled materials in accordance with EPA and Texas Commission on Environmental Quality (TCEQ) regulations and any other applicable federal, state, or local laws, rules, or regulations. In connection with such disposals, the Contractor shall use only those transporters and disposal facilities that are approved in advance in writing by the Owner. A copy of all transport manifests for the spilled materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request of the Architect/Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. ALL COSTS OF COLLECTION, CONTAINMENT, AND DISPOSAL OF SPILLED MATERIALS SHALL BE THE SOLE RESPONSIBILITY OF THE CONTRACTOR. (4) For purposes of this Subparagraph (e), the term "spill" includes any kind of environmental discharge or release. (e) Clean Air Management Plan. The Contractor shall comply with the Clean Air Management Plan submitted to and approved by the Owner during the contractor selection process. The Owner reserves the right, at the Contractor's sole expense, to require the removal or retrofitting of any equipment used in the course of construction that does not comply with the Plan submitted to and approved by the Owner. File 5761 EXHIBIT 4 (f) The Contractor shall deposit surplus or waste excavation or other materials removed as part of the Work at a legal disposal site in accordance with all applicable state, federal, and local laws, rules, regulations, and ordinances. The Contractor shall submit to the Owner for review and approval all planned disposal sites or proposed uses for the surplus or waste excavation or other materials prior to removal of any excavation or other material from the Project site. A copy of all transport manifests for surplus or waste excavation or other materials shall be obtained and retained in the Contractor's records for reference purposes, to be provided upon request to the Architect /Engineer, the Owner, or any governmental regulatory agency with jurisdiction over the matter. (g) The Contractor is responsible for obtaining all TXPDES Storm Water Permits from TCEQ for construction of the Project under regulations contained in 40 CFR Part 122, as amended, pursuant to the Clean Water Act, 33 U.S.C.A. § §1251 et seq. These regulations require the filing of a notice of intent to obtain and abide by the general storm water permit for construction activities promulgated by EPA, including but not limited to cleaning, grading, and excavation that disturb the applicable amount of total land area. In addition, the Contractor shall comply with all regulations of the Owner relating to storm water and storm water runoff management at the Project site pursuant to Chapter 19, Article IX, Denton City Code, as amended. (h) The Contractor shall not install any materials in the performance of the Work that contain asbestos or asbestos - related material such as hydrated mineral silicate, including chrysolite, amosite, crocidolite, tremolite, anthophylite or actinolite, whether friable or non - friable. (i) The Owner reserves the right in its sole option to exercise the following remedies (without waiving the right to pursue the imposition of any civil or criminal fines or penalties that may be imposed under state, federal, or local laws or ordinances), at no additional cost to the Owner and without an extension of the Contract Time, in the event the Contractor fails or refuses after seven (7) days advance written notice from the Owner to comply with the provisions of this Paragraph 10.10, the terms of the SPRP, the terms of the Clean Air Management Plan, any storm water permit or other environmental permit issued in connection with the Work, or any applicable environmental law, rule, regulation, or ordinance: (1) suspend all or any portion of the Work until the noncompliance is corrected, or until a detailed plan to achieve compliance within a reasonably prompt period of time is prepared by the Contractor and approved by the Owner; (2) if the Contractor fails to properly address the noncompliance within the time stipulated by the Owner, perform the necessary remediation or correction work and backcharge the Contractor for the cost of the remediation or correction; or (3) terminate the Contract for cause as provided in Article 13. File 5761 EXHIBIT 4 ARTICLE 11 INSURANCE AND BONDS 11.1 CONTRACTOR'S INSURANCE Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.2 PROPERTY INSURANCE Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.3 `UMBRELLA' LIABILITY INSURANCE Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail, 11.4 POLICY ENDORSEMENTS AND SPECIAL CONDITIONS Contractors shall refer to the requirements listed within the solicitation document and resulting contract for all City of Denton insurance requirements. Should a conflict arise between the solicitation document and the resulting contract, the requirements set forth in the actual contract shall prevail. 11.6 PERFORMANCE AND PAYMENT BONDS (a) Subject to the provisions of Subparagraph 11.3(b), the Contractor shall, with the execution and delivery of the Construction Services Agreement, furnish and file with the Owner in the amounts required in this Paragraph, the surety bonds described in Clauses (a)(1) and (a)(2) below, which surety bonds shall be in accordance with the Charter of the City of Denton and the provisions of Chapter 2253, Texas Government Code, as amended; each bond shall be signed by the Contractor, as Principal, and by an established bonding company, as surety, meeting the requirements of Subparagraph 11.3(c) and approved by the Owner. The surety bonds shall be accompanied by an appropriate Power -of- Attorney clearly establishing the extent and limitations of the authority of each signer to so sign: (1) Performance Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and faithful execution of the Work and performance of the Contract in accordance with Plans, Specifications and all other Contract Documents, including any Amendments thereof, for the protection of the File 5761 EXHIBIT 4 Owner. This bond shall also provide for the repair and maintenance of all defects due to faulty materials and workmanship that appear within a period of two (2) year from the date of final completion and acceptance of the improvements by the Owner or lesser or longer periods as may be otherwise designated in the Contract Documents. (2) Payment Bond. A good and sufficient bond in an amount equal to 100% of the total Contract Sum, guaranteeing the full and prompt payment of all claimants supplying labor or materials in the prosecution of the Work provided for in the Contract Documents and any Amendments thereto, and for the use and protection of each claimant. (b) If the Contract Sum, including Owner- accepted alternates and allowances, if any, is greater than $100,000, Performance in 100% of the Contract Sum are mandatory and shall be provided by the Contractor. If the Contract Sum is greater than $50,000 but less than or equal to $100,000, only a Payment Bond in 100% of the Contract amount is mandatory; provided, however, that the Contractor may elect to furnish a Performance Bond in the same amount if the Contractor so chooses. If the Contract Sum is less than or equal to $25,000, the Contractor may elect not to provide Performance and Payment Bonds; provided that in such event, no money will be paid to the Contractor until final completion and acceptance of all work by Owner. If the Contractor elects to provide Performance and Payment Bonds 100% of the total Contract Sum, progress payments in accordance with these General Conditions shall be disbursed. (c) No surety will be accepted by the Owner who is now in default or delinquent on any bonds or who is a party to any litigation against the Owner. All bonds shall be made and executed on the Owner's standard forms, shall be approved by the Owner, and shall be executed by not less than one corporate surety that is authorized and admitted to do business in the State of Texas, is licensed by the State of Texas to issue surety bonds, is listed in the most current United States Department of the Treasury List of Acceptable Sureties, and is otherwise acceptable to the Owner. Each bond shall be executed by the Contractor and the surety, and shall specify that legal venue for enforcement of each bond shall lie exclusively in Denton County, Texas. Each surety shall designate an agent resident in Denton County, Texas to whom any requisite statutory notices may be delivered and on whom service of process may be had in matters arising out of the suretyship. (d) The person or persons, partnership, company, firm, Limited Liability Company, association, corporation, or other business entity to whom the Contract is awarded shall, within ten (10) days after such award, sign the required Contract with the Owner and provide the necessary surety bonds and evidence of insurance as required under the Contract Documents. No Contract shall be binding on the Owner until it has been approved as to form by the City Attorney, executed for the Owner by the City Manager, the performance and payment bonds and evidence of insurance have been furnished as required by the Contract Documents, and the fully executed contract has been delivered to the Contractor. File 5761 EXHIBIT 4 (e) The failure of the Contractor to execute the Contract or deliver the required statutory bonds and evidence of insurance within ten (10) days after the Contract is awarded or as soon thereafter as the Owner can assemble and deliver the Contract shall constitute a material breach of the Contractor's bid proposal and the Owner may rescind the Contract award and collect or retain the proceeds of the bid security. By reason of the uncertainty of the market prices or materials and labor, and it being impracticable and difficult to determine accurately the amount of damages occurring to the Owner by reason of the Contractor's failure to execute and furnish the statutory bonds and to sign the Contract within ten (10) days, the filing of a bid proposal with the accompanying bid security will be considered as an acceptance of this Subparagraph 11.3(e). In the event the Owner should re- advertise for bids, the defaulting Contractor shall not be eligible to bid, and the lowest responsible bid obtained in the re- advertisement shall be the bid referred to in this Paragraph. ARTICLE 12 DEFECTIVE AND NONCONFORMING WORK 12.1 UNCOVERING OF WORK (a) If a portion of the Work is covered contrary to the Architect /Engineer's request or to requirements specifically expressed in the Contract Documents, the Work must, if required in writing by the Architect /Engineer, be uncovered for the Architect/Engineer's observation and be replaced at the Contractor's expense without change in the Contract Time. (b) If a portion of the Work has been covered which the Architect/Engineer has not specifically requested to observe prior to it being covered, the Architect/Engineer may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be charged to the Owner. If any Work is not in accordance with the Contract Documents, the Contractor shall pay the costs of uncovering, repair, replacement unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. 12.2 CORRECTION OF WORK (a) The Contractor shall promptly correct Work rejected by the Architect/Engineer as failing to conform to the requirements of the Contract Documents, whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Contractor shall bear costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect/Engineer's services and expenses made necessary thereby. (b) If any of the Work is found to be defective or nonconforming with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Architect/Engineer or the Owner to do so unless the Owner has previously given the Contractor a written acceptance or waiver of the defect or File 5761 EXHIBIT 4 nonconformity. The Contractor's obligation to correct defective or nonconforming Work remains in effect for: (1) one year after the date of Substantial Completion of the Work or designated portion of the Work; (2) one year after the date for commencement of warranties established by agreement in connection with partial occupancy under Subparagraph 9.8(a); or (3) the stipulated duration of any applicable special warranty required by the Contract Documents. (c) The one -year period described in Clauses (b)(1) and (b)(2) shall be extended with respect to portions of the Work performed, repaired, or corrected after Substantial Completion by the period of time between Substantial Completion and the actual completion of the Work. (d) The obligations of the Contractor under this Paragraph 12.2 shall survive final acceptance of the Work and termination of this Contract. The Owner shall give notice to the Contractor promptly after discovery of a defective or nonconforming condition in the Work. The one -year period stated in Clauses (b)(1) and (b)(2) does not limit the ability of the Owner to require the Contractor to correct latent defects or nonconformities in the Work, which defects or nonconformities could not have been discovered through reasonable diligence by the Owner or the Architect/Engineer at the time the Work was performed or at the time of inspection for certification of Substantial Completion or Final Completion. The one year period also does not relieve the Contractor from liability for any defects or deficiencies in the Work that may be discovered after the expiration of the one year correction period. (e) The Contractor shall remove from the Project site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. (f) If the Contractor fails to correct defective or nonconforming Work within a reasonable time after notice from the Owner or the Architect /Engineer, the Owner may correct it in accordance with Paragraph 2.4. If the Contractor does not proceed with correction of defective or nonconforming Work within a reasonable time fixed by written notice from the Architect/Engineer, the Owner may remove or replace the defective or nonconforming Work and store the salvageable materials or equipment at the Contractor's expense. If the Contractor does not pay costs of removal and storage within ten days after written notice, the Owner may, upon ten (10) additional days written notice, sell the materials and equipment at auction or at private sale and shall account for the proceeds after deducting costs and damages that should have been borne by the Contractor, including compensation for the Architect/Engineer's services and expenses made necessary as a result of the sale. If the proceeds of sale do not cover costs which the Contractor should have borne, the Contract Sum shall be reduced by the File 5761 EXHIBIT 4 deficiency. If payments due to the Contractor then or thereafter are not sufficient to cover the deficiency, the Contractor shall pay the difference to the Owner. (g) The Contractor shall bear the cost of correcting destroyed or damaged construction of the Owner or separate contractors, whether the construction is completed or partially completed, that is caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. (h) Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one -year time period as described in Subparagraph 12.2(b) relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. (i) Any Work repaired or replaced pursuant to this Article 12 shall be subject to the provisions of Article 12 to the same extent as Work originally performed or installed. 12.3 ACCEPTANCE OF NONCONFORMING WORK The Owner may, in the Owner's sole discretion, accept Work which is not in accordance with the requirements of the Contract Documents instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. The adjustment will be accomplished whether or not final payment has been made. ARTICLE 13 COMPLETION OF THE CONTRACT; TERMINATION; TEMPORARY SUSPENSION 13.1 FINAL COMPLETION OF CONTRACT The Contract will be considered completed, except as provided in any warranty or maintenance stipulations, bond, or by law, when all the Work has been finally completed, the final inspection is made by the Architect/Engineer, and final acceptance and final payment is made by the Owner. 13.2 WARRANTY FULFILLMENT Prior to the expiration of the specified warranty period provided for in the Contract Documents, the Architect /Engineer will make a detailed inspection of the Work and will advise the Contractor and the Contractor's Surety of the items that require correction. The Architect/Engineer will make a subsequent inspection and if the corrections have been properly performed, the Architect/Engineer will issue a letter of release on the maintenance stipulations to the Contractor and the Surety. If for any reason the Contractor has not made the required corrections before the expiration of the warranty period, the warranty provisions as provided for in the Contract Documents shall remain in effect until the corrections have been properly performed and a letter of release issued. File 5761 EXHIBIT 4 13.3 TERMINATION BY THE OWNER FOR CAUSE (a) Notwithstanding any other provision of these General Conditions, the Work or any portion of the Work may be terminated immediately by the Owner for any good cause after giving seven (7) days advance written notice and opportunity to cure to the Contractor, including but not limited to the following causes: (1) Failure or refusal of the Contractor to start the Work within ten (10) days after the date of written notice by the Owner to commence the Work. (2) A reasonable belief that the progress of the Work being made by the Contractor is insufficient to complete the Work within the specified time. (3) Failure or refusal of the Contractor to provide sufficient and proper equipment or construction forces to properly execute the Work in a timely manner. (4) A reasonable belief that the Contractor has abandoned the Work. (5) A reasonable belief that the Contractor has become insolvent, bankrupt, or otherwise financially unable to carry on the Work. (6) Failure or refusal on the part of the Contractor to observe any requirements of the Contract Documents or to comply with any written orders given by the Architect /Engineer or the Owner as provided for in the Contract Documents. (7) Failure or refusal of the Contractor to promptly make good any defects in materials or workmanship, or any defects of any nature, the correction of which has been directed in writing by the Architect/Engineer. (8) A reasonable belief by the Owner that collusion exists or has occurred for the purpose of illegally procuring the Contract or a Subcontractor, or that a fraud is being perpetrated on the Owner in connection with the construction of Work under the Contract. (9) Repeated and flagrant violation of safe working procedures. (10) The filing by the Contractor of litigation against the Owner prior to completion of the Work. (b) When the Work or any portion of the Work is terminated for any of the causes itemized above or for any other cause except termination for convenience pursuant to Subparagraph 13.3(e), the Contractor shall, as of the date specified by the Owner, discontinue the Work or portion of the Work as the Owner shall designate, whereupon the surety shall, within fifteen (15) days after the written notice of termination for cause has been served upon the Contractor and the surety or its authorized agents, File 5761 EXHIBIT 4 assume the obligations of the Contractor for the Work or that portion of the Work which the Owner has ordered the Contractor to discontinue and may: (1) perform the Work with forces employed by the surety; (2) with the written consent of the Owner, tender a replacement contractor to take over and perform the Work, in which event the surety shall be responsible for and pay the amount of any costs required to be incurred for the completion of the Work that are in excess of the amount of funds remaining under the Contract as of the time of the termination; or (3) with the written consent of the Owner, tender and pay to the Owner in settlement the amount of money necessary to finish the balance of uncompleted Work under the Contract, correct existing defective or nonconforming Work, and compensate the Owner for any other loss sustained as a result of Contractor's default. In the event of termination for cause involving Clause (b)(1) or (b)(2), the Surety shall assume the Contractor's place in all respects, and the amount of funds remaining unpaid under the Contract shall be paid by the Owner for all Work performed by the surety or the replacement contractor in accordance with the terms of the Contract Documents, subject to any rights of the Owner to deduct any costs, damages, or liquidated or actual damages that the Owner may have incurred, including but not limited to additional fees and expenses of the Architect/Engineer and attorneys fees, as a result of such termination. (c) The balance of the Contract Sum remaining at the time of the Contractor's default and of the termination shall become due and payable to the surety as the Work progresses, subject to all of the terms, covenants, and conditions of the Contract Documents. If the surety does not, within the time specified in Subparagraph 13.3(b), exercise its obligation to assume the obligations of the Contract, or that portion of the Contract which the Owner has ordered the Contractor to discontinue, then the Owner shall have the power to complete the Work by contract or otherwise, as it may deem necessary. The Contractor agrees that the Owner shall have the right to take possession of or use any or all of the materials, plant, tools, equipment, supplies, and property of every kind provided by the Contractor for the purpose of the Work, and to procure other tools, equipment, labor, and materials for the completion of the Work, and to charge to the account of the Contractor the expenses of completion and labor, materials, tools, equipment, and incidental expenses. The expenses incurred by the Owner to complete the Work shall be deducted by the Owner out of the balance of the Contract Sum remaining unpaid to or unearned by the Contractor. The Contractor and the surety shall be liable to the Owner for any costs incurred in excess of the balance of the Contract Sum for the completion and correction of the Work, and for any other costs, damages, expenses (including but not limited to additional fees of the Architect/Engineer and attorney's fees), and liquidated or actual damages incurred as a result of the termination. File 5761 EXHIBIT 4 (d) The Owner shall not be required to obtain the lowest bid for the Work of completing the Contract as described in Subparagraph 13.3(c), but the expenses to be deducted from the Contract Sum shall be the actual cost of such Work. In case the Owner's expense is less than the sum which would have been payable under the Contract, if the same had been completed by the Contractor, then the Owner may pay to the Contractor (or the Surety, in the event of a complete termination for cause) the difference in the cost, provided that the Contractor (or the Surety) shall not be entitled to any claim for damages or for loss of anticipated profits. In case such expenses for completion shall exceed the amount which would have been payable under the Contract if the same had been completed by the Contractor, then the Contractor and his Sureties shall pay the amount of the excess to the Owner on notice from the Owner for excess due. When only a particular part of the Work is being carried on by the Owner by contract or otherwise under the provisions of this Subparagraph, the Contractor shall continue the remainder of the Work in conformity with the terms of the Contract, and in such manner as not to hinder or interfere with the performance of workmen employed and provided by the Owner. (e) The right to terminate this Contract for the convenience of the Owner (including but not limited to nonappropriation of funding) is expressly retained by the Owner. In the event of termination for convenience, the Owner shall deliver at least ten (10) days advance written notice of termination for convenience to the Contractor. Upon the Contractor's receipt of such written notice, the Contractor shall cease the performance of the Work and shall take reasonable and appropriate action to secure and protect the Work in place. The Contractor shall then be reimbursed by the Owner in accordance with the terms and provisions of the Contract Documents, not to exceed actual labor costs incurred, materials stored at the Project site or away from the Project site as approved by the Owner but not yet paid for, plus actual, reasonable, and documented termination charges, if any, paid by the Contractor in connection with the Work in place which is completed and in conformance with the Contract Documents to the date of termination for convenience. No amount shall ever be due to the Contractor for lost or anticipated profits. 13.4 TEMPORARY SUSPENSION OF THE WORK (a) The Work or any portion of the Work may be temporarily suspended by the Owner immediately upon written notice to the Contractor for any reason, including but not limited to: (1) the causes described in Clauses 13.1(a)(1) through (a)(10) above; (2) where other provisions in the Contract Documents require or permit temporary suspension of the Work; (3) situations where the Work is threatened by, contributes to, or causes an immediate threat to public health, safety, or security; or (4) other unforeseen conditions or circumstances. File 5761 EXHIBIT 4 (b) The Contractor shall immediately resume the temporarily suspended Work when ordered in writing by the Owner to do so. The Owner shall not under any circumstances be liable for any claim of the Contractor arising from a temporary suspension due to a cause described in Clause (a)(1) above; provided, however, that in the case of a temporary suspension for any of the reasons described under Clauses (a)(2) through (a)(4), where the Contractor is not a contributing cause of the suspension under one of those Clauses or where the provision of the Contract Documents in question specifically provides that the suspension is at no cost to the Owner, the Owner will make an equitable adjustment for the following items, provided that a claim is properly made by the Contractor under Subparagraph 4.3 of these General Conditions: (1) an equitable extension of the Contract Time, not to exceed the actual delay caused by the temporary suspension as determined by the Architect/Engineer and the Owner; (2) an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable costs of properly protecting any Work that is finished or partially finished during the period of the temporary suspension (no profit and overhead shall be allowed on top of these costs); and (3) if it becomes necessary to move equipment from the Project site and then return it to the Project site when the Work is ordered to be resumed, an equitable adjustment to the Contract Sum for the actual, necessary, and reasonable cost of these moves; provided, however, that no adjustment shall be due if the equipment is moved to another Project site of the Owner. ARTICLE 14 MISCELLANEOUS PROVISIONS 14.1 GOVERNING LAW; COMPLIANCE WITH LAWS AND REGULATIONS (a) This Contract shall be governed by the laws and case decisions of the State of Texas, without regard to conflict of law or choice of law principles of Texas or of any other state. (b) This Contract is entered into subject to and controlled by the Charter and ordinances of the City of Denton and all applicable laws, rules, and regulations of the State of Texas and the Government of the United States of America. The Contractor shall, during the performance of the Work, comply with all applicable City codes and ordinances, as amended, and all applicable State and Federal laws, rules and regulations, as amended. 14.2 SUCCESSORS AND ASSIGNS The Owner and the Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the promises, covenants, terms, conditions, and obligations contained in the Contract Documents. The Contractor shall not assign, transfer, File 5761 EXHIBIT 4 or convey its interest or rights in the Contract, in part or as a whole, without written consent of the Owner. If the Contractor attempts to make an assignment, transfer, or conveyance without the Owner's written consent, the Contractor shall nevertheless remain legally responsible for all obligations under the Contract Documents. The Owner shall not assign any portion of the Contract Sum due or to become due under this Contract without the written consent of the Contractor, except where assignment is compelled or allowed by court order, the terms of the Contract Documents, or other operation of law. 14.3 WRITTEN NOTICE Except as otherwise provided in Article 16, any notice, payment, statement, or demand required or permitted to be given under this Contract by either party to the other may be effected by personal delivery in writing or by mail, postage prepaid to the Project Manager or Superintendent of either party, or to an officer, partner, or other designated representative of either party. Mailed notices shall be addressed to the parties at an address designated by each party, but each party may change its address by written notice in accordance with this section. Mailed notices shall be deemed communicated as of three (3) days after mailing. 14.4 RIGHTS AND REMEDIES; NO WAIVER OF RIGHTS BY OWNER (a) The duties and obligations imposed on the Contractor by the Contract Documents and the rights and remedies available to the Owner under the Contract Documents shall be in addition to, and not a limitation of, any duties, obligations, rights, and remedies otherwise imposed or made available by law. (b) No action or failure to act by the Owner shall constitute a waiver of a right afforded the Owner under the Contract Documents, nor shall any action or failure to act by the Owner constitute approval of or acquiescence in a breach of the Contract by Contractor, except as may be specifically agreed in writing by Change Order or Supplemental Agreement. 14.5 INTEREST The Owner shall not be liable for interest on any progress or final payment to be made under the Contract Documents, except as may be provided by the applicable provisions of the Prompt Payment Act, Chapter 2251, Texas Government Code, as amended, subject to Paragraph 9.6(a) of these General Conditions. 14.6 OFFICERS OR EMPLOYEES OF THE OWNER NOT TO HAVE FINANCIAL INTEREST IN ANY CONTRACT OF THE OWNER No officer or employee of the Owner shall have a financial interest, direct or indirect, in any Contract with the Owner, or be financially interested, directly or indirectly, in the sale to the Owner of any land, materials, supplies or services, except on behalf of the Owner as an officer or employee. Any violation of this article shall constitute malfeasance in office, and any officer or employee of Owner guilty thereof shall thereby forfeit his office or position. Any violation of this section, with the knowledge, express or implied, of the person, persons, partnership, company, firm, association or corporation contracting with the Owner File 5761 EXHIBIT 4 shall render the Contract involved voidable by the Owner's City Manager or City Council, . 14.7 VENUE This Contract is deemed to be performed in Denton County, Texas, and if legal action is necessary to enforce this Contract, exclusive venue shall lie in Denton County, Texas. 14.8 INDEPENDENT CONTRACTOR In performing the Work under this Contract, the relationship between the Owner and the Contractor is that of an independent contractor. The Contractor shall exercise independent judgment in performing the Work and is solely responsible for setting working hours, scheduling or prioritizing the Work flow and determining the means and methods of performing the Work, subject only to the requirements of the Contract Documents. No term or provision of this Contract shall be construed as making the Contractor an agent, servant, or employee of the Owner, or making the Contractor or any of the Contractor's employees, agents, or servants eligible for the fringe benefits, such as retirement, insurance and worker's compensation, which the Owner provides to its employees. 14.9 NONDISCRIMINATION As a condition of this Contract, the Contractor covenants that he will take all necessary actions to insure that, in connection with any work under this Contract, the Contractor and its Subcontractors will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or handicap unrelated to job performance, either directly, indirectly or through contractual or other arrangements. The Contractor shall also comply with all applicable requirements of the Americans with Disabilities Act, 42 U.S.C.A. § §12101- 12213, as amended. In this regard, the Contractor shall keep, retain and safeguard all records relating to his Contract or Work performed thereunder for a minimum period of three (3) years from final Contract completion, with full access allowed to authorized representatives of the Owner, upon request, for purposes of evaluating compliance with this and other provisions of the Contract. 14.10 GIFTS TO PUBLIC SERVANTS (a) The Owner may terminate this Contract immediately if the Contractor has offered, conferred, or agreed to confer any benefit on a City of Denton employee or official that the City of Denton employee or official is prohibited by law from accepting. (b) For purposes of this Article, "benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct or substantial interest, but does not include a contribution or expenditure made and reported in accordance with law. (c) Notwithstanding any other legal remedies, the Owner may require the Contractor to remove any employee of the Contractor from the Project who has violated the restrictions of this Article or any similar State or Federal law, and obtain File 5761 EXHIBIT 4 reimbursement for any expenditures made to the Contractor as a result of the improper offer, agreement to confer, or conferring of a benefit to a City of Denton employee or official. ARTICLE 15 RIGHT TO AUDIT CONTRACTOR'S RECORDS By execution of the Building Construction Services Agreement, the Contractor grants the Owner the right to audit, at the Owner's election, all of the Contractor's records and billings relating to the performance of the Work under the Contract Documents. The Contractor agrees to retain its Project records for a tnirdinum of five (5) years following cmipletion of the Work. The Owner agrees that it will exercise the right to audit only at reasonable lours. City inay review any and all of the services performed by Contractor under this Contract. ArIy payrnerrt, settlement, satisfaction, or release made or provided during the course of performance of this Contract shall be subject to City's rights as may be disclosed by an audit under this section. ARTICLE 16 NOTICE OF CONTRACT CLAIM This Contract is subject to the provisions of the Denton City Code, as amended, relating to requirements for filing a notice of a breach of contract claim against City. Contractor shall comply with the requirements of this ordinance as a precondition of any litigation relating to this Contract, in addition to all other requirements in this Contract related to claims and notice of claims. Should a conflict arise between the Pt) Rlpp (locrrrcrent Sul)t)Jj_trtteirttn.s1 drawitws. sr ecificatiorrs cotrstrttction document or contract, the terms yard conditions set forth, in the City of t)enton General Conditions acrd the ne otiated contract shall prevail. File 5761 EXHIBIT 4 EXHIBIT E INSURANCE REQUIREMENTS AND WORKERS' COMPENSENTATION REQUIREMENTS Upon contract execution, all insurance requirements shall become contractual obligations, which the successful contractor shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. Contractor shall file with the Purchasing Department satisfactory certificates of insurance including any applicable addendum or endorsements, containing the contract number and title of the project Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A,M. Best Company rating of at least A- VII or better. Any deductibles or self - insured retentions shall be declared in the proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self - insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: ■ Name as Additional Insured the City of Denton, its Officials, Agents, Employees and volunteers. That such insurance is primary to any other insurance available to the Additional Insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. File # 5761 EXHIBIT 4 • Should any of the required insurance be provided under a claims made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. • Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property File # 5761 EXHIBIT 4 damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than 50$ 0,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: • any auto, or • all owned hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Workers' Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Workers' Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance, Policy limits will be at least $500,000.00 combined bodily injury and property damage per occurrence with a $1,000,000.00 aggregate. [ ] Fire Damage Legal Liability Insurance Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than m__ ._ ............. _ each occurrence are required. File # 5761 EXHIBIT 4 [ ] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [ ] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than $ each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. File # 5761 EXHIBIT 4 ATTACHMENT 1 [X] Workers' Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate ")-A copy of a certificate of insurance, a certificate of authority to self - insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and File # 5761 EXHIBIT 4 2. no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3. provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4. obtain from each other person with whom it contracts, and provide to the contractor: a. a certificate of coverage, prior to the other person beginning work on the project; and b, a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5, retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6. notify the governmental entity in writing by certified mail or personal delivery, File # 5761 EXHIBIT 4 within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self - insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. File # 5761 EXHIBIT 4 If"RITRZI Harnem/Pro-Source Insurance Agency THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD PHONE FAX 2121 W. Springcreek Parkway #210 SUBA RID LI 11 C I Y - EFF POUCYEX115 LTR TYP'EOFINSURA'NC-E INATI WVD NUMBER (MRIDD/YYYYI (Mwoolyyyy) LIMITS E MAIL ABDRESS: ilnfo@pr qld�r�qe ency.com- Plano, TX II Y Y AEFORB ING-COVERAGE 03/2812015 0312812016 EACH OCCURRENCE INISLIRERIA: SC, ttSd a 0 [0sti-rance Company .. ..... ..... CLAIMS-MADE OCCUR INSURER 8: Praet-o rian 1111sur oce-Comp ✓ Mann Robinson and Son Inc DMM-AGE TO RENTED PREPMSESi,(Ea-occunrervp), INSURER C: Gr t American Ins ra c C 7066 Rhoades Rd INSURER D: Aubrey, TX 76227 MELD EXP (Any one person) ,INSURER E: COVERAGES CERTIFICATE NUMBER: 00000000-207335 REVISION NUMBER: 7 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'rO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. SUBA RID LI 11 C I Y - EFF POUCYEX115 LTR TYP'EOFINSURA'NC-E INATI WVD NUMBER (MRIDD/YYYYI (Mwoolyyyy) LIMITS A COMMERCIAL GENERAL LIABILITY Y Y _POLICY CPS2185210 03/2812015 0312812016 EACH OCCURRENCE 1"Q001000 CLAIMS-MADE OCCUR DMM-AGE TO RENTED PREPMSESi,(Ea-occunrervp), $ 100,000 MELD EXP (Any one person) 51000 . .. ......... RS NA -P OL& AD INJURY V UR -E ........... .. . — — --- .. $ 000 . ..... ... GEN'L AGGREGATE LIMIT APPLIES PER GENERAL. AGGR E GATE 00 0 $ 2 1 0 POLICY PRO JECT L-] LOG PRODUCTS - COMP/OP AGG - - - 11 [$ 1,000000 OTHER, $ B AUTOMOBILE LIABILITY Y Y PICTX0003286 03/24/2015 03/2412016 -TOMBINED —SINGLE LIMIT (F-a accideM, $ 11000,00f9 ANY AUTO BODILY INJURY (Per person) ALLOWNED SCHEDULED AUTOS AUTOS BODILY INJURY P a r a c a de nt , I $ N 0 N-OWNED HIREDAUTOS A urros PROPER TY DRCv9AGE --(Peracadent). .. . .... ........ ..... . . . $ .. ..... UMBRELLA LIAR OCCUR EACH OCCURRENCE $ EXCESS LJAB CLAWS -MADE A GG RE G A TE $ DED RETEN-TION$ $ WORKERS COMPENSATION PER OTH- AND EMPLOYERS' LIABILITY Y/N ER ANY PROPRIETORIPARTNER/EXECUTIVE E: L... EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E L DISEASE - EA EMPLOYEI If desrsibe Under LL D 'S(' RIPTION OF OPERATIONS below POLICY LIMIT $ B Physical Damage PICTX0003286 03124/2015 0312412016 _fL.21SEASE Comp/Collision $1,000 Ded C Equipment Floater IMP4269316-00 04115/2016 04/1512016 $109,390.00 $1,000 Ded. DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is required) Certificate Holder is Additional Insured and includes a Waiver of Subrogation in regards to the Auto Liability and General Liability policies. ---A CITY OF DENTON Denton, TX 76201 071988 -2014 ACCORD CORPORATION. All rights reserved. ACCORD 25 (2014101) The ACCORD name and logo are registered marks of ACCORD Printed by PAR on July 22, 2015 at 01:19PM � r f \ #y W U 5761 \2&5\7\#2& Transmission /2f Easement \ : ©± Preparation Services §§ ¥ :. F.Uc>NISR>l=T 4 RFP 5761 Pricing Sheet for Substation & Transmission Line Easement Site Preparation Services Proposer's Name: Mann Robinson Principal Place of Business: Aubrey, TX SECTION I - Construction Costs: Furnish all supervision, labor, material, supplies, tools, equipment and transportation to completely prepare project sites for construction, based on unit costs. Proposer may add units they believe are necessary to fully account for all costs. Type Estimated Unit of Unit ID T e of Service Unit Price t' Measure Quan qty 1 Mobilization 112 LS $1,000.00 2 Silt Fence 58,300 LF $3.00 3 Silt Fence Removal and Disposal 58,300 LF $1.00 4 Construction Entrance (20'x50') 32 EA $2,750.00 5 Inlet Protection 6 EA $40.00 6 Tree Protection 2,200 LF $1.00 7 Erosion Blanket 10,000 SY $2.50 8 18" Rock Berm 1,130 LF $70.00 9 Tree Removal and Disposal(Y - 6" dbh) 852 EA $65.00 10 Tree Removal and Disposal (6" - 12" dbh) 1,272 EA $90.00 11 Tree Removal and Disposal (12" - 18" dbh) 865 EA $180.00 12 Tree Removal and Disposal (> than 18" dbh) 498 EA $300.00 13 Stripping, Clearing, Grubbing (See Note 1) 193 ACRE $2,500.00 14 Unclassified Excavation (10,000 CY and Less) 39,500 CY $6.00 15 Unclassified Excavation (Greater than 10000 and less than 30000 CY) 29,000 CY $5.00 16 Unclassified Excavation (30000 CY and Greater) 235,500 CY $4.00 17 Rock Excavation 1,000 CY $20.00 18 Grading & Compaction 198 ACRE $3,500.00 19 Spoil Removal to City Site (See Note 2) 341,083 Ton $9.00 20 Provide and Haul Borrow to the Site 317,350 CY $14.25 21 REMOVED 22 REMOVED 23 Load and Haul Suitable Export Soil to City Site 152.878 Ton $9.00 i NMBFT 4 RFP 5761 Pricing Sheet for Substation & Transmission Line Easement Site Preparation Services Proposer's Name: Mann Robinson Principal Place of Business: Aubrey, TX 24 FHydromulch 360,300 SY $1.25 25 Temporary CMP Culvert (18" - 24 ") Installed 2,100 LF $38.00 26 Signs, Barricades and Traffic Handling 10 LS $100.00 27 Residential House Demolition 7,852 Ton $47.50 28 Out Building Demolition 200 Ton $47.50 29 Apartment Demolition 2,600 Ton $47.50 30 Commercial Demolition 2,315 Ton $47.50 31 Parking Demolition (Concrete) 985 Ton $47.50 32 Parking Demolition (Asphalt Concrete) 5,760 Ton $47.50 33 Street Demolition (Concrete) 500 Ton $47.50 34 Street Demolition (Asphalt Concrete) 4,125 Ton $47.50 35 Remove Concrete Flatwork 2,300 Ton $47.50 36 Miscellaneous Structures Demolition 920 Ton $47.50 37 REMOVED 38 Remove Onsite Underground Utilities (6" and less) 9,000 LF $10.00 39 Remove Onsite Underground Utilities (Greater than 6" and less than 18 ") 1,590 LF $12.00 40 Remove Onsite Underground Utilities (18" to 36 ") 500 LF $14.00 41 Remove Onsite Underground Utilities (Greater than 36 ") 200 LF $16.00 42 Remove Propane Tank and Dispose 2 EA $400.00 43 Remove Septic Tank and Dispose 20 EA $400.00 44 Remove Leach Lines and Dispose 4 LF $25.00 45 Remove Light/Electric Poles 4 EA $400.00 46 Site Recompaction 692,200 SY $1.25 47 Provide and Place Temporary Stablization Rock 10,200 Ton $30.00 48 Place Open- Graded Rock around structures 494,000 SY $3.00 48a Place Open - Graded Rock in open area 48,400 SY $1.50 EIN> IRIT 4 RFP 5761 Pricing Sheet for Substation & Transmission Line Easement Site Preparation Services Unit ID Proposer's Name: Mann Robinson Unit of Principal Place of Business: Aubrey, TX 49 Place Geogrid (provided by Owner) Measure 155,925 SY $1.50 50 Provide Open- Graded Rock for Surface $130.00 120,800 Ton $30.00 51 Place Flex Base 56 1,000 Ton $4.00 52 Haul Flex Base from COD Landfill Trackloader 1,000 Ton $10.00 53 Provide and Place Flex Base 1 28,071 Ton $26.00 54 Spoil Removal at Transmission Pole Sites Hour 250 HR $325.00 55 Refresh Construction Entrances $80.00 10 EA $425.00 SECTION II - Hourly Rates for Additional Services Unit ID Construction Unit Estimated Unit of Unit Price Quantity Measure 54 Motorgrader 1 Hour $130.00 55 Dozer 80hp or less 1 Hour $100.00 56 Dozer over 80hp 1 Hour $130.00 57 Trackloader 1 Hour $130.00 58 Rubber Tire Loader 1 Hour $100.00 59 Compactor 1 Hour $90.00 60 Bobcat Skid Steer l Hour $80.00 61 12 yd Tandem Dump 1 Hour $75.00 62 25 Ton End Dump 1 Hour $100.00 63 Broom 1 Hour $85.00 SECTION III - Delivery Timeframe Estimated time between notice to proceed for a project until work begins (Calendar Days) 7 Normal Time to Deliver and compact 10,000 cubic yards of fill to Denton area site (Calendar Days) 20 Expected number of substation projects that could be undertaken simultaneously or that could have overlapping times (Enter Number of Projects) 3 EFNHSB]rT 4 City of Denton I ,�SAAMFA Task to be Completed by Respondent Review l6 hibjt 2 - General Provisions and'rerms . ..... . . . ..... . ...... . Review E xhibit 3.- Scop � kevie�whxhibit' '4" '-"' T-e'ichnical Drawi p li §,'� . . . ........ n,s.41dPLeps Sum of Exhibit 5 -'F"'T'P Site Form f appji, I _ Review Exhibit 6 - Federal Granl'j�, !�irqments (i -6over'sheet . ....... . ................ ... . ........ ... Sol I IN Submit response, with tabs marking each section, in the following orderee RFP 5761 - Main Document Page 11 of 23 EMHFBFr 4 City of Denton RFP For Substation & Transmission Line Easement Site Preparation Services WXX%VffArK"USINESS OVERVIEW QUESTIONNAIRE AND FORMS 1. Contractor legal name and address (for contracting purposes): ..... . . . . . . . ... . . . .. .. . . 2. Subsidiary of . . . . .... 3. Organization Class (circle): Partnership (i` ol-j".)oration Individual Association 4. Tax Payer ID#: (5 5, Date Established: 6. Historically Underutilized Business: Yes oiNl o) 7. Does your company have an established physical presence in the State of Texas, or the City of Denton? (Yes. No in which'? Q,.,. , � Q111k- 4,0 S. Please provide a detailed listing of all products and/or services that your company provides. . .... . "oe 9. Has your company flied or been named in any litigation involving your company and the Owner on a contract within the last five years under your current company name or any other company name? If so provide details of the issues and resolution if available. Include lawsuits where Owner was involved. I O.Have you ever defaulted on or failed to complete a contract under your current company name or any other company name? If so, where and why? Give name and telephone number of Owner. VI) 11111""""11 I I.Have you ever had a contract terminated by the Owner? If so, where and why? Give name and telephone number (s) of Owner (s). . . ... .... . )" RFP 5761 - Main Document Page 12 of 23 EXHIRFIr 4 City of Denton ........... a, Responding firms principle place of business: 014 b. Company's majority owner principle place of business: c. Ultimate Parent Company's principle place of business: (13 RFP 5761- Main Document Page 1 3 of 23 Robinson Mann d; Equipment e d EWHIHYr 4 City of Denton RFP For Substation & Transmission Line Easement Site Preparation Services 14 Provide le —lail's R Sup theevablatiolicli QzbL**tsoYx,., a*ta Sons, � c, hao, 6),,ita 6-uA (x- ol" �y I (1 6 ov (A,( a Y u, °...... °. Vk Q, ik) al( It4lv _,b� nt- YtA, (A- oA 40 -,"o" 11�� C-414""k, ( 110 0 V, l co, , V k, Cd Ct VUO-11 (�Z*t("A k, VV,, +"I t 1, (")VOO() 15. Provide details on how firm meets the minimum qualifications stated in this Main document Section 3. ....... . ....... — - — the . ..... a. The details must be completed on this form, and shall not point to another document in the respondent's proposal. b. Sign below and return form with final submission. \0A), . . . .... . Y. V4 a A((- I-A (X ojt V,( 4?, tv A10 r i- (0 ALIkI'iJ(-I'4 t VI-C, O"t AM VIA, VKJ�,, I certify that our firm meets the minimum qualifications as stated in this Main document, Section 3, . .... . . .......... Signature Company Date RFP 5761 - Main Document Page 14 of 23 EM41BRIFTT 4 City of Denton RFP For Substation & Transmission Line Easement Site Preparation Services IXSUBMISSION EXCEPTIONS. Any exceptions takgn to this solicitation (including terms and conditions in Exhibit 2, the General Provisions and Terms and Conditions) must be itemized on the lines below. Additional pages may be added as needed. If there are no exceptions, please sign where indicated at the bottom of the page. Item # Description Mann ?.obiy)sbn 'Is nbt a I e_"seQ( ksbzs+c% �sl i ►��, plus I d °lo . The above exceptions (and any additional pages identified) are the ONLY exceptions to the specifications, General Provisions and Terms and Conditions in Exhibit 2, and sample contract to this solicitation. I understand that the City may not accept additional exceptions produced after final submission of (Iris iy oposal. F�v"N Company i . ee l� tats No Exceptions are taken to this solicitation or the General Provisions and Terms and Conditions iip Exhibit 2. Signature Company Date RFP 5761 - Main Document Page 15 of 23 ENMUM 4 City of Denton OUNDIL, 02 A (ONTOU-PIRTINT N. EIRM, 11041 TM V= fa loft g-000011 I VON - - W., I I. a, Complaints to, or final orders entered by, the Occupational Safety and Health Review Commission (OSHRQ, against the respondent for violations of OSHA regulations within the past three (3) years. C. Convictions of a criminal offense within the past ten (10) years, which resulted in bodily harm or death. d. Any other safety related matter deemed by the City Council to be material in determining the responsibility of the respondent and his or her ability to perform the services or goods required by the solicitation documents in a safe environment, both for the workers and other employees of respondent and the citizens of the City of Denton. # 1 fI a a RFP 1- Main Document Page 1 6 of 23 Ei MIB11=T 4 City of Denton RFP For Substation & Transmission Line Easement Site Preparation Services QUESTION ONE Has the respondent, or the fine, corporation, partnership, or institution represented by the respondnet, or anyone acting for such firm, corporation, partnership or institution, received citations for violations of OSHA within the past three (3) years? YES ...... .. NO If the respondent has indicated YES for question number one above, the respondent must provide to City of Denton, with its submission, the following information with respect to each such citation: Date of offense, location of establishment inspected, category of offense, final disposition of offense, if any, and penalty assessed. QUESTION TWO Has the respondent, or the fine, corporation, partnership, or institution represented by the respondent, or anyone acting for such firm, corporation, partnership or institution, received citations for violations of environmental protection laws or regulations, of any kind or type, within the past five years? Citations include notice of violation, notice of enforcement, suspension/revocations of state or federal licenses, or registrations, fines assessed, pending criminal complaints, indictments, or convictions, administrative orders, draft orders, final orders, and judicial final judgments. If the respondent has indicated YES for question number two above, the respondent must provide to City of Denton, with its submission, the following information with respect to each such conviction: Date of offense or occurrence, location where offense occurred, type of offense, final disposition of offense, if any, and penalty assessed. QUESTION THREE Has the respondent, or the firm, corporation, partnership, or institution represented by respondent, or anyone acting for such firm, corporation, partnership, or institution, ever been convicted, within the past ten (10) years, of a criminal offense which resulted in serious bodily injury or death? YES NO If the respondent has indicated YES for question number three above, the respondent must provide to City of Denton, with its submission, the following information with respect to each such conviction: Date of offense, location where offense occurred, type of offense, final disposition of offense, if any, and penalty assessed, RFP 5761- Main Document Page 17 of 23 ENHWIT 4 City of Denton your company provides. T�e City prefers customers of similar size and scope of work to this solicitation. . . .. ............................... . ............. --, . .... . . . ...... . .. . REFERENCE ONE ...... . . GOVERNMENT/COMPANY NAME: LOCATION: TELEPH N ONE UM1,11,1 t, 4 ............ SCOPE OF WORK: ... . ........ . . . CONTRACT PERIOD: GOVERNMENT/COMPANYNAME:-r)CbOT owks Isir LO CAI ON: K— REFERENCE THREE GOVERNMENTICOMPANY NAME: (551, � js , PYCLi y- So i i c,-4., wa*r-v U " , t i- LOCATION: (MI) mN 'Ty, 1,5162-1 CONTACT PERSON ANDTIT1,F', TELEPHONE NUMBER: SCOPE OF WORK: "Re-cy."t CONTRACT PERIOD: RFP 5761 ® Main Document Page 19 of 23 EWHSBEi' 4 City of Denton .air 1, Project Project er Name, Address and e Number: l i r �° l l Original Contract Amount: Final Contract Amount: t Please it the project, including size, length, and materials used° Also describe any known contractual issues, successes, or potential problems and solutions encountered, RFP 5761 ® Main Document Page 20 of 23 1 xl-,11�4; i J; City of Denton RFP For Substation & Transmission Line Easement Site Preparation Services I W ztell J X01 Project #2 Name 9rProjectq5rxx-VII Please detail the project, including size, length, and materials used. Also describe any known contractual issues, successes, or potential problems and solutions encoumtered, RFP 5761- in Document Page 21 of 23 City ofDenton Project « Name \\Project: Coo »2 Cra � . ` d di ~:» Project »a Owner Name, d « d Phone Number: b"tor f. � © Original twife »© 4 A 1 #U :/ 4 Final < *» < Amount4 4Q o id,d Contract Time Allotted (Calendar Days): : 3«1 Start Date 4<S t«: S d a 1° : Final » »6»>#+2 for Project: J &n .# 103 m »v«r<?m ¥vim d: * rr ® mm�: � %« project, §w length, � , m-w.w . « <�. w describe any known :+ ww ?£ + ®« . successes, or potential problems and solutions eam« RFP 5761 - ° et Page 2 of 23 EWIM 4 City of Denton RFP For Substation & Transmission Line Easement Site Preparation Services CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other erson doin business witb local overnmental entity,,.. _. This questionnaire reflects changes made to the low by H.B. 1491, 80th Leg., Regular Session. This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a person 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 ofpprer�won who has a businem relationship with local governmental .. .._ . .. ....... ,w �. . . � ..... � ., .,_. � ..... 1 enllty. m...... ... ) _�,.. _ .,...,. .... „....... W.n .....w ............... ..—........- 2 Check this boa If you are tiling an update to a previously tiled questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate tiling authority not later than the Th business day after the Jr�t� mNgr br�y�sr��i9i.1I� N Iu�+ � 4firMas����M�r 1 � a�nawr aid anq� l�la IG rar inuccurete a. .d -,. Name of local government officer with whom tiler has an employment or business relationship. .d �....... ..... _._..__..._........... 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? F1 Yes 0 No 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 ftom the local governmental entity? 0 Yes EI No 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? 0 Yes M No D. Describe each affiliation or business relationship, 4 I have oo Conflict of Interest to disclose, m. .. ..... ....... w ... . . Signature of person doing business with the governmental entity Date RFP 5761 - Main Document Page 23 of 23 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -622, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM /ACM: George Campbell DATE: August 4, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton authorizing an Agreement between the City of Denton, Texas and Fred Moore Day Nursery School; authorizing the expenditure of funds; and providing for an effective date. (1,575) BACKGROUND This Agreement allows for the total expenditure of $1,575 from Council Contingency Funds. (Mayor Pro Tem Gregory $550, Council Member Hawkins $450 and Council Member Roden $575) Key provisions for the Agreement include: • Funds shall be used by Fred Moore Day Nursery for the purpose of their Capital Campaign to finish building the gym and playground. • In addition to other reporting requirements, documentation in the form of canceled checks and /or corresponding receipts specifically detailing expenditure of funds for the purpose provided is required for reimbursement from these designated funds. FISCAL INFORMATION Funding for the Agreement will come from Council Contingency Fund accounts. EXHIBITS 1. Ordinance 2. Agreement Respectfully submitted: George C. Campbell City Manager City of Denton Page 1 of 2 Printed on 7/30/2015 File M ID 15 -622, Version: 1 Prepared by: Robin Fox Senior Executive Assistant City of Denton Page 2 of 2 Printed on 7/30/2015 h rwm d by I cx:ls i''I sAegal\our documents\ordinances\15\sery agr-fred moore day nursery school.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND FRED MOORE DAY NURSERY SCHOOL; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the Agreement between the City and Fred Moore Day Nursery School, attached hereto and made a part hereof by reference (the "Agreement"), serve a municipal and public purpose and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set -forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to exercise all rights and duties of the City under the Agreement, including authorizing and ratifying the expenditure of funds. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 05�e- \ \CODAD \Departments \City Manager's OfficeAcrnoACouncil Assistant \Contingency Funds \Contingency 2014- 15\Fred Moore Nursery\Sery Agr - Fred Moore Day Nursery School .doc SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND FRED MOORE DAY NURSERY SCHOOL This Agreement is hereby entered into by and between the City of Denton, Texas, a home rule municipal corporation, hereinafter referred to as "City ", and Fred Moore Day Nursery School, a not for profit corporation, hereinafter referred to as "School ". WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the School's Capital Campaign to build a gym and extra classrooms; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest; NOW, THEREFORE, the parties hereto mutually agree as follows: L SCOPE OF SERVICES School shall, in a satisfactory and proper manner, perform the following tasks, for which the monies provided by City may be used: the funds being provided will be used for their Capital Campaign to finish building the gym and playground. H. OBLIGATIONS OF SCHOOL In consideration of the receipt of funds from City, School agrees to the following terms and conditions: A. One Thousand, Five Hundred Seventy -five Dollars /100 ($1,575.00) shall be paid to School by City to be utilized for the purposes set forth in Article I. B. School will maintain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. School will permit authorized officials of City to review its books at any time. D. Upon request, School will provide to City its By Laws and any of its rules and regulations that may be relevant to this Agreement. E. School will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. School will appoint a representative who will be available to meet with City officials when requested. Page 1 \ \CODAD\Departrnents\City Manager's Offrce\emo \Council Assistant \Contingency Funds \Contingency 2014- 15\Fred Moore Nurscry\Sery Agr - Fred Moore Day Nursery School .doc III. TIME OF PERFORMANCE The services funded by City shall 'be undertaken and completed by School within the following time frame: The term of this Agreement shall commence on the effective date and terminate September 30, 2014, unless the contract is sooner terminated under Section V1I "Suspension or Termination ". IV. PAYMENTS A. PAYMENTS TO SCHOOL. City shall pay to School the sum specified in Article Il after the effective date of this Agreement. B. EXCESS PAYMENT. School shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to School; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION School agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. School agrees to make available its bank statements for review by City at City's discretion. In addition, School agrees to provide City the following data and reports, or copies thereof: A. An explanation of any major changes in program services.. B. To comply with this section, School agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. School's record system shall contain suf icient documentation to provide in detail full support and justification for each expenditure. School agrees to retain all books, records, documents, reports, and written accounting; procedures pertaining to the services provided and expenditure of Rinds under this Agreement for five years. C. 3,4othing in the above subsections shall be construed to relieve School of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. Page 2 \\CODAD \Departments\Cily Manager's Office\emo \Council AssistanAContingency Funds \Contingency 2014- 15\Tred Moore Nursery \Sery Agr - Fred Moore Day Nursery School ,doc VI. MEETINGS Minutes of all meetings of School's governing body shall be available to City within ten (1 p) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if School violates any covenants, agreements, or guarantees of this Agreement, the School's insolvency or filing of bankruptcy, dissolution, or receivership, or the School's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. School shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. School will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of School's noncompliance with the nondiscrimination, requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and School may be barred from further contracts with City. IX. WARRANTIES School represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City, B. Any supporting bank statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of School on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, . there has been no material change, adverse or otherwise, in the financial condition of School. C. No litigation or legal proceedings are presently pending or threatened against School. D. None of the provisions herein contravenes or is in conflict with the authority under which School is doing business or with the provisions of any existing indenture or agreement of School. Page 3 1\CODAD\Department9\City Manager's Office \cmo \Council AssistantTontingency FundslCotttingency 2074- 151Fred Moore Nursery\Sery Agr - Fred Moore Day Nursery School .doc E. School has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of School are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the bank statements furnished by School to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. C. School shall notify City of any changes in personnel or governing board composition. XI. INDI:, NIN IF1CATION To the extent authorized by law, the School 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 School or those services contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of School, its officers, employees, agents, subcontractors, licensees and invitees. XII. CQI`1 =,C3t�_IN -TEI EST A. School covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. School further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. School further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his/her position for a purpose that is Page 4 \ \CODAD\Departments\CUy Managees Oftce \cmo\Council AssistantlContingeney FundAContingency 2014- 15\Fred Moore Nursery\Sery Agr- Cred Mom Day Nursery school .doc or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he /she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or School in which he has direct or indirect interest. XIII. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand - delivery or facsimile, addressed to School or City, as the case may be, at the following addresses: CITY City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 SCHOOL Wendy McGee Executive Director 821 Cross Timber Denton, TX 76205 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XIV. MISCELLANEOUS A. School shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to School hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by School. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. Page 5 SALegalQur 1)ocurnmats\Contracts1151Scm Agr • bred Moore Day Nursery Schoal .doa D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreeincrlt, assertion, statement, understanding, or other commitment: occurring during the term of this Agreement or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, -recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws ofthe State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent.jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of _ _ _ 20 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY; . CITY OF DENTON C CAMPBELL' CY]°Y MANAGER FRED 1'✓J.00RE .DAY NURSERY SCI s y�. ,1 �... y." . a BY, u.� �, _ ..w...... . o " WEND Y A C(, 1, E,XECIJTIVE 15fk.i "t I`OR im City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -631, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM /ACM: George C. Campbell DATE: August 4, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton authorizing an Agreement between the City of Denton, Texas, and Giving Hope, Inc. for funds that will be used for Homeless Prevention Assistance; providing for the expenditure of funds; and providing for an effective date. ($600) BACKGROUND This Agreement allows for the total expenditure of $600 from Council Contingency Funds. (Mayor Chris Watts $600). Key provisions of the Agreement include: Funds shall be used by Giving Hope, Inc. for homeless prevention assistance. • In addition to other reporting requirements, documentation in the form of canceled checks and /or corresponding receipts specifically detailing expenditure of funds for the purpose provided is required for reimbursement from these designated funds. FISCAL INFORMATION Funding for the Agreement will come from Council Contingency Fund accounts. EXHIBITS 1. Ordinance 2. Agreement Respectfully submitted: George C. Campbell City Manager Prepared by: City of Denton Page 1 of 2 Printed on 7/30/2015 File M ID 15 -631, Version: 1 Robin Fox Senior Executive Assistant City of Denton Page 2 of 2 Printed on 7/30/2015 h rwm d by I cx:ls i''I SALegaMur Documcnts\0rdinanccs\I 5\sm agr-Giving I 10PE", Inc. Ord-doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND GIVING HOPE, INC. FOR FUNDS TFIAT'WILL BE USED FOR HOMELESS PREVENTION ASSISTANCE; PROVIDING FOR THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the agreement between the City and Giving HOPE, Inc. for funds to be used for homeless prevention assistance, which is attached hereto and made a part hereof by reference (the "Agreement"), serves a municipal and public purpose and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set .forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to carry out the duties and responsibilities of the City under the Public Service Agreement, including the expenditure of funds as provided in the Agreement. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the - day of 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: /10", sAlegakour docurrien ts\con tracts\ I 5\scry agr giving hope, inc-doe SERVICE AGREEMENT GIVING HOPE, INC. This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City", and Giving HOPE, Inc., a Texas Non-Profit Corporation, hereinafter referred to as "Organization." WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided -funds in its budget for the purpose of paying for contractual services; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest; Organization shall, in a satisfactory and proper manner, perform the following tasks, for which the monies provided by City may be used: lyff 11 lk I AMATJ 0 o:\Ioml\oo 5\senmgr giving hone,iiic-dom F. Organization will appoint o representative who will be available to meet with City officials when requested. O. Organization will submit b`City copies nf audited fiuoouialstatements. D[. TIME OF PFRI"'ORMANCE The services funded by City shall be undertaken and completed by Organization within the following time frarrie: The term ofthis Agreement shall commence nothe eftectiYudate and terminate September 30, 2015 unless tile contract is sooner terminated under Section VII "Suspension or Termination." D/. PAYMENTS A. PAYkiEMTST0OK0AN|%6Tl0N. City shall pay 10 Organization thcouon specified in Article D after the effective date ofthis Agreement. B. EXCESS PAYMENT. Organization shall refund to City within ten (1N working days of City's request, any sum ofmoney which has been paid hvCity and which City at any time thereafter 1) has resulted in overpayment to Organization; or 2) has not been spent strictly in accordance with the terms of this Agreement, or 3) io not supported hv adequate documentation \ofo)lv'ua6Fvthe expenditure. V. EVALUATION Or�i�ioo��m�o�niI���i�lc�c�on�m�o(��o������ services -can bc continuously monitored. Organization agrees k) make available its financial records for review tm City at City's discretion. Ln addition, Organization ugrceu(opruvkicCitythcDulioniuA data and reports, or copies \berrob A. All external or internal audits. Organization shall submit u copy of the annual audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. An explanation o[ any major changes in program services, D. Tocornp|ywith this section, Organization agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement, The record system of Organization shall contain sufficient Page 2 of 7 ,Al*wkom,00commmkommua|nservwp giving hope. in»doc documentation to provide io detail FuU support and justification for each expenditure. Organization agrees to retain all books, records, documents, reports, andwritten accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. E. Nothing in the above subsections ohd| be construed to relieve Organization of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. \O. During the term o[this Agreement, Organization shall deliver to City copies of all notices of mociogsofitsBourdofDiruo1ocm,sottingfbdhdbotimouodp)accU)ereufvvburc{nthisprngroouisa part uf the subject matter o/ the meeting. Such notice shall bo delivered 0n City ioo timely manner <o give adequate notice, and abu!) include an ogoudu and u brief description of the rnottco 10 be discussed. Organization understands and agrees that City's representatives shall be afforded access 0o all meetings of its Board ofDirectors. Minutes of all meetings ofOrganization' body shall he available tu City within ten (10) working days of approval. VII. TERMINATION The City ozuy terminate this &groonucut for ouuao if Organization vk�utcm any covenants, � ' ruuiocno[��n/\ tbuDr�aniza�ioo'aiumo\vonoyorfiUu�o[bunknmtuy, agreements, �/o;u/�u�` bankruptcy, dissolution, n,receivership, or the Organization' violation of any law or regulation hu vvbiob it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated iuthis paragraph. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS /\. (),'»n|zo1ou shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. Organization will furnish u|| information and reports requested hv City, and will permit access to its books, records, and accounts for purposes o[ investigation tooaoortaiucoozpUaocowitb local, State and Federal rides and regulations. C. lu the event of noncompliance hv Organization with the nondiscrimination requirements, the Agreement may hpcanceled, terminated, or suspended in whole miupart, and Organization may be barred from further contracts with City. Organization represents and warrants that: oa^gamm/ doe umenm\coonctm|Mscmmgr giving hope, mc-doc A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate aso[the date shown on the information, data, mreport, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting financial statements heretofore requested 6v City and furnished &n City, are complete, ocou/oto and fairly reflect the financial conditions o[ Organization no the date shown an said report, and the results of the operation for the period covered by the report, and that since said data, there has been uo material change, adverse nr otherwise, iu the fivauciu)condition of C. No litigation or icgn\ proceedings are Prc»cot)y pending or tbccukeood oguium [). None of the provisions herein contravenes ovisio conflict with the authority under which Organization is doing business or with the provisions of any existing indenture or agreement of Organization. D. Organization has the power to enter into this Agreement and accept puyoucut hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. Y4000 of the uuoeto ofOrganization are subject to any lien or eu000ubcuucc of any character, except for current taxes not delinquent, except as obovvn in the Ououcia| oCutomon1 furnished by Organization to City. Each of these representations and warranties shall be continuing and shall be deerned to have been repeated by the submission ny each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, mdeletions to the terms ofthis Agreement shall be by written amendment executed hv both parties, except when the terms of this Agrccnncrd expressly provide that another method shall be used. B. Itix understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and obai\ bcoo/nco part ofthe Agreement ou the effective date specified bythe law or C. Organization shall notify City of any changes in personnel or governing board XI. Page 4 of 7 A. Organization covenmntathatneither itnmr any member ofits governing body presently has any direct or indirect, which would conflict in any manner nr degree with the performance of services required {obu performed under this Agreement. Organization further covenants that iuthe performance of this Agreement, no person having such interest shall be employed or appointed as a member o[ its governing body. B. o further covenants that no member of its go its o« � u�dT coubr�tooreoop)oyeeuxbullpouaoosooyinhrcotiuurnmchio/hurpouitiooforupuryoscdhu is or gives the appearance of being motivated by desire for private gain [brbicuao)C/borae|f or others; particularly those with which he/she has ibcui)y, business, or other ties. C. No officer, member, or employee of City and no nuenubsr of its governing body who exercises any function nr responsibilities in the review nrapproval of the undertaking m carrying out of this Agreement obu)l participate in any decision relating to the Agreement vbiob affects his personal interest octhe interest ivany corporation, partnership, or association iu which hc has direct or indirect iutcroxt. Anvootic�oro1bcrvvd�ouivabun�eotrcguircdmr tobedc�crcdundor the k�usuf this ' shall bodeemed to have been delivered, whether actually received m not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand-delivery or facsimile, nddm:yood to Organization or City, as the come nnuy be, at the following addresses: CITY ORGANIZATION City oy Denton, Texas Giving HOPE, Inc. Attn: City Manager Alonzo Peterson Zl5E.McKinney Executive Director Denton, T&7020| 117 West Sycamore Fax No. 94O.349.8j9l Denton, TX762Ol &e-ather at the above address by certified mail, return receipt requested. s \legakour dowmcn(s\cowraos\1 5\sery agr giving hope, inc -doe XIV. MISCELLANEOUS -- . . .. . ..... ATTEST: JENNIFER WALTERS, CITY SECRETARY m wu_q� s: \legal\our documents \contracts115\sery agr giving hope, inc..doc APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ATTEST: BOARD SECRETARY ORGANIZATION pf�Y e Al EXECUTIVE DIRECTOR Page 7 of 7 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -634, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM /ACM: George Campbell DATE: August 4, 2015 SUBJECT Consider adoption of an ordinance authorizing an Agreement between the City of Denton, Texas and the Denton Black Chamber of Commerce; authorizing the expenditure of funds; and providing for an effective date. ($900) BACKGROUND This Agreement allows for the total expenditure of $900 from Council Contingency Funds. (Mayor Watts $500 and Council Member Hawkins $400) Key provisions of the agreement include: • Funds shall be used by the Denton Black Chamber of Commerce for expenditures for the Denton Blues Festival. • In addition to other reporting requirements, documentation in the form of canceled checks and /or corresponding receipts specifically detailing expenditure of funds for the purpose provided is required for reimbursement from these designated funds. FISCAL INFORMATION Funding for the Agreement will come from Council Contingency Fund Accounts. EXHIBITS 1. Ordinance 2. Agreement Respectfully submitted: George C. Campbell City Manager City of Denton Page 1 of 2 Printed on 7/30/2015 File M ID 15 -634, Version: 1 Prepared by: Robin Fox Senior Executive Assistant City of Denton Page 2 of 2 Printed on 7/30/2015 h rwm d by I cx:ls i''I sAlegal\our doe uments\ordi nances\1 5\sery agr-denton black chamber -blues 1est.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS, AND THE DENTON BLACK CHAMBER OF COMMERCE; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton hereby finds that the Agreement between the City and the Black Chamber of Commerce, attached hereto and made a part hereof by reference (the "Agreement"), serve a municipal and public purpose and is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by reference into the body of this Ordinance as if fully set forth herein. SECTION 2. The City Manager, or his designee, is hereby authorized to execute the Agreement and to exercise all rights and duties of the City under the Agreement, including authorizing and ratifying the expenditure of funds. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2015. CHRIS WATTS, MAYOR ATTEST: . I IENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: . ......... \ \CODAD \Departments \City Manager's OfficeAcmoACouncil Assistant \Contingency Funds \Contingency 2014- 15\Blues Fest \Sery Agr - Blues Fest - Denton Black Charnber.doc SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND DENTON BLACK CHAMBER OF COMMERCE This Agreement is hereby entered into by and between the City of Denton, Texas, a home rule municipal corporation, hereinafter referred to as "City ", and the Denton Black Chamber of Commerce, a not for profit organization, hereinafter referred to as 'Black Chamber ". WHEREAS, City has determined that the proposal for services merits assistance and can provide needed services to citizens of City and has provided funds in its budget for the purpose of a donation to Black Chamber which provides a benefit to the citizens by sponsoring the Denton Blues Festival; and WHEREAS, this Agreement serves a valid municipal and public purpose and is in the public interest; NOW, THEREFORE, the parties hereto mutually agree as follows: L SCOPE OF SERVICES Black Chamber shall, in a satisfactory and proper manner, perform the following tasks, for which the monies provided by City may be used: the funds being provided shall be used for expenditures for the Denton Blues Festival. H. OBLIGATIONS OF BLACK CHAMBER In consideration of the receipt of funds from City, Black Chamber agrees to the following terms and conditions: A. Nine Hundred Fifty Dollars /100 ($900.00) shall be paid to Black Chamber by City to be utilized for the purposes set forth in Article I. B. Black Chamber will maintain adequate records to establish that the City funds are used for the purposes authorized by this Agreement. C. Black Chamber will permit authorized officials of City to review its books at any time. D. Upon request, Black Chamber will provide to City its By Laws and any of its rules and regulations that may be relevant to this Agreement. E. Black Chamber will not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. Page 1 CAUsers \I 12459\AppData\ Local \Microsoft \Windows \Temporary Internet Files \Content.Outlook \SH6JLCDE \Sery Agr - Blues Fest - Denton Black Chamber (2).doc F. Black Chamber will appoint a representative who will be available to meet with City officials when requested. III. TIME OF PERFORMANCE The services funded by City shall be undertaken and completed by Black Chamber within the following time frame: The term of this Agreement shall commence on the effective date and terminate September 30, 2014, unless the contract is sooner terminated under Section VII "Suspension or Termination ". IV. PAYMENTS A. PAYMENTS To BLACK CHAMBER. City shall pay to Black Chamber the sum specified in Article II after the effective date of this Agreement. B. EXCESS PAYMENT. Black Chamber shall refund to City within ten (10) working days of City's request, any sum of money which has been paid by City and which City at any time thereafter determines: 1) has resulted in overpayment to Black Chamber; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. V. EVALUATION Black Chamber agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. Black Chamber agrees to make available its bank statements for review by City at City's discretion. In addition, Black Chamber agrees to provide City the following data and reports, or copies thereof: A. An explanation of any major changes in program services. B. To comply with this section, Black Chamber agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of funds received and the services performed under this Agreement. Black Chamber's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Black Chamber agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the services provided and expenditure of funds under this Agreement for five years. C. Nothing in the above subsections shall be construed to relieve Black Chamber of responsibility for retaining accurate and current records that clearly reflect the level and benefit of services provided under this Agreement. Page 2 C:\ Users \112459\AppData \Local \Microsoft \Windows \Temporary Internet Files \Content.Outlook \SH6JLCDE \Sery Agr - Blues Fest - Denton Black Chamber (2).doc VI. MEETINGS Minutes of all meetings of Black Chamber's governing body shall be available to City within ten (10) working days of approval. VII. TERMINATION The City may terminate this Agreement for cause if Black Chamber violates any covenants, agreements, or guarantees of this Agreement, the Black Chamber's insolvency or filing of bankruptcy, dissolution, or receivership, or the Black Chamber's violation of any law or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. VIII. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. Black Chamber shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. Black Chamber will furnish all information and reports requested by City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal rules and regulations. C. In the event of Black Chamber's noncompliance with the nondiscrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Black Chamber may be barred from further contracts with City. IX. WARRANTIES Black Chamber represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. B. Any supporting bank statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Black Chamber on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of Black Chamber. C. No litigation or legal proceedings are presently pending or threatened against Black Chamber. Page 3 C:\ Users \l 12459\AppData\Local\Microsoft \Windows \Temporary Internet Files \Content.Outlook \SH6JLCDE \Sery Agr - Blues Fest - Denton Black Chamber (2).doc D. None of the provisions herein contravenes or is in conflict with the authority under which Black Chamber is doing business or with the provisions of any existing indenture or agreement of Black Chamber. E. Black Chamber has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of Black Chamber are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the bank statements furnished by Black Chamber to City. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. X. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. C. Black Chamber shall notify City of any changes in personnel or governing board composition. XI. INDEMNIFICATION To the extent authorized by law, the Black Chamber 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 Black Chamber or those services contemplated by this Agreement, including all such claims or causes of action based upon common, constitutional or statutory law, or based, in whole or in part, upon allegations of negligent or intentional acts of Black Chamber, its officers, employees, agents, subcontractors, licensees and invitees. XII. CONFLICT OF INTEREST A. Black Chamber covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Black Chamber further Page 4 C:\ Users \112459\AppData \Local\Microsoft \Windows \Temporary Internet Files \Content.Outlook \SH6JLCDE \Sery Agr - Blues Fest - Denton Black Chamber (2).doc covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. Black Chamber further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his /her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself /herself, or others; particularly those with which he /she has family, business, or other ties. C. No officer, member, or employee of City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or Black Chamber in which he has direct or indirect interest. XIII. NOTICE Any notice or other written instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, or via hand - delivery or facsimile, addressed to Black Chamber or City, as the case may be, at the following addresses: CITY City of Denton, Texas Attn: City Manager 215 E. McKinney Denton, TX 76201 BLACK CHAMBER OF COMMERCE Denton Black Chamber of Commerce Kerry Goree P.O. Box 51026 Denton, TX 76206 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. XIV. MISCELLANEOUS A. Black Chamber shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall any payment to Black Chamber hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by City of any breach of covenant or default Page 5 S: \I,egal \Our Documents \Contracts \la \Sery Agr - Blues Fest - Denton Black Chamber.doc which may then or subsequently be committed by Black Chamber. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHEREOF, the parties do hereby affix their signatures and enter into this Agreement as of the day of > 20 ATTEST": JENNIFER WAL,rERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: CITY OF DENTON GEORGE C. CAMPBELL, CITY MANAGER DENTON BLACK CHAMBER OF COMMERCE BY: Page 6 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENTO File #: ID 15 -670, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consider approval of the minutes of June 23 and June 30, 2015. City of Denton Page 1 of 1 Printed on 7/30/2015 CITY OF DENTON CITY COUNCIL MINUTES June 23, 2015 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, June 23, 2015 at 2:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Watts, Council Member Hawkins, Council Member Briggs, and Mayor Pro Tern Gregory. ABSENT: Council Member Roden, Council Member Johnson, and Council Member Wazny. 1. Work Session Reports A. ID 15 -494 Receive a report, hold a discussion, and give staff direction regarding the outcome of the 84th Texas Legislative Session and future legislative issues and strategies. Brandon Aghamalian, Focused Advocacy, presented a legislative update for Council. He reviewed the volume of bills that were filed and the total bills passed. About 1900 of the bills that were introduced were city- related bills and about 220 of those were passed. He presented information on the beginning of the session which involved new statewide officials, GOP majorities in both Chambers, lots of turnover in the Legislature, a reduction of standing committees in the Senate, and the replacement of the 2/3 rule with a 3/5 rule. The Comptroller announced $113 billion in revenue for 2016 -17. Council discussed the budget information presented in terms of spending amounts and funds that received or did not receive funding. Transportation funding — the November 2015 election may produce a new revenue stream from sales tax and motor vehicle sales tax vote. There was no solution for new road construction but the funding should help TxDOT with maintenance. Tax relief - the various bills that affected tax relief were reviewed. Those included a school homestead exemption and a cut in the franchise tax rate. SB 1760 required a majority vote to adopt a property tax rate exceeding the effective rate. The big bills that did not pass were reviewed. Snapper Carr, Focus Advocacy, reviewed the municipal issues. He presented the municipal bills that did not pass and those that did pass. Of particular note was HB 40 which dealt with oil and gas regulation. Curt Seidlits, Focus Advocacy, reviewed SB 776 in terms of TMPA. Carr reviewed information on elections, city contracting, vendor relationships, financial reporting, open meetings, open records, politics and campaigning. He noted that currently there was no special session expected. He reviewed the topics that might be considered in the next session. B. ID 15 -508 Receive a report, hold a discussion, and give staff direction about possible ways that the City can support or assist in a potential residential development near Ryan Road and Teasley Lane. City of Denton City Council Minutes June 23, 2015 Page 2 Aimee Bissett, Director of Economic Development, stated that this was a proposed development on Ryan Road which currently was outside the city limits. The developer was interested in bringing it into Denton and would involve the development of higher end homes. There were a variety of constraints on the property including an existing gas well on the site. The flood plain and ESA area divided the property into two pieces, significant road improvements would be required and there was no wastewater service to the property. As the property was currently located in the ETJ there was no requirement to preserve the trees. If located in the city limits, half of the ESA and all of the trees would be preserved. A piece of the property through the middle of the tract was very heavily treed and was the kind of property the City would like to preserve. Because the property was not in the city limits, there was the potential that a property owner would cut the trees down. A future park area could provide connectivity from Ryan Road to Lake Forest Park with provided benefits to the parks. Council Member Gregory asked if the park dedication came into play if the property were in the city limits. Bissett stated that the developer would be required to develop .6 acres of the 26 acres. The ESA had 11 acres. City Attorney Burgess stated that the property had a non - annexation agreement and if development occurred, the property was subject to annexation. Bissett stated that at some point, the developer would need to make a decision on whether to keep the property in contract. Options for Council to consider included providing infrastructure assistance, whether the property had value to the parks, the value for tree presentation and a determination of an economic value. Staff was looking for direction from Council on whether there was any interest in the property for park land and the use of the tree fund for acquiring the treed portion of the property. Staff was also looking for direction if there was interest in assisting the developer with options for public infrastructure. Council Member Hawkins questioned how the City assisting would help the developer. Bissett replied by buying the entire tract with trees as that portion of the property made it too costly for homes. Council Member Gregory stated that he would like to have a Closed Session on the cost of the land in the flood plain, etc. and was not comfortable giving direction to staff at this time. City Attorney Burgess suggested specifically posting this item at a next meeting. Council Member Briggs stated that she was not in favor of staff direction at this meeting. Mayor Watts felt that he could give direction from his perspective. The price on the flood plain land was $40 per acre and purchasing that property would deplete the tree fund. However, the land was so expensive there was no way to land bank based on purchase price. The developer needed the City to subsidize the park property to make the project work and he could not agree to that. Much of the property was in the flood plain which was an issue. The City would be City of Denton City Council Minutes June 23, 2015 Page 3 spending $2 million to achieve a goal for only 60 homes and that was not viable. The property would not be used as park land except for a trail. The City was being asked to subsidize a project that was not economically viable for the developer and was not usable for anyone else. Council Member Briggs agreed with the Mayor. Mayor Watts stated that half of the Council was absent. He was clear on his direction but it could be brought before the entire Council to consider. Consensus of the Council was to postpone the item to another meeting. Council Member Briggs asked about the gas well on the property Bob Shelton stated that there was a vertical well on the property. There was no more drilling anticipated and he was trying to buy the well to get it removed from the property. Council Member Hawkins asked if putting in the infrastructure would benefit any neighboring development. Shelton stated that the drainage affected the north side directly and that all of the drainage would have to be accommodated. C. 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 Briggs requested an update on the tree ordinance and amendments. Mayor Watts asked about exploring the possibility of a festival that incorporated the diversity in Denton and to include two universities in the discussion. Following the completion of the Special Called Work Session, the City Council convened in a Closed Meeting at 3:54 p.m. to consider the specific items listed below under the Closed Meeting section of this agenda. 1. Closed Meeting: City of Denton City Council Minutes June 23, 2015 Page 4 A. ID 15 -498 Consultation with Attorneys - Under Texas Government Code, Section 551.071; Deliberations Regarding Real Property - Under Texas Government Code, Section 551.072. Receive information from staff pertaining to the acquisition of real property interests related to the proposed expansion and reconstruction of Locust Substation generally located southeast of Fort Worth Drive & West Collins Street, in the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and /or condemnation of parcels of real property near the aforementioned location and more particularly described as: Lot 1, Block A of Garcia Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in document No. 2009 -168 of the plat records of Denton, County, Texas. [Locust Substation] B. ID 15 -499 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction relating to the site selected for the DME Hickory Substation and the acquisition of real property interests. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests in the 100 block of N. Bonnie Brae St., Denton, TX 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. [Hickory Substation] The Council returned to Open Session at 4:45 p.m. and with no further business, the meeting was adjourned. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL MINUTES JUNE 30, 2015 After determining that a quorum was present, the City Council convened in a Special Called Closed Meeting on Tuesday, June 30, 2015 at 3:00 p.m. in the Main Conference Room at City Hall West. PRESENT: Council Member Briggs, Mayor Pro Tern Gregory, Council Member Johnson, Council Member Wazny and Mayor Watts. ABSENT: Council Member Roden, Council Member Hawkins A. ID 15 -497 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Receive information from staff, discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests in the E. Puchalski Survey, Abstract No. 996, City of Denton, Denton County, Texas, and being generally located in the 900 block of W. Collins Street (Block 4, Hillside Addition, City and County of Denton, Texas). Consultation with the City's attorneys regarding legal issues associated with the acquisition 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. [Eagle Substation] B. ID 15 -485 Consultation with Attorneys - Under Texas Government Code, Section 551.071; Deliberations regarding Economic Development Negotiations - Under Texas Government Code, Section 551.087. Receive a report and hold a discussion regarding legal and economic development issues regarding economic development incentives for a business prospective in the Cole Ranch Development. This discussion shall include commercial and financial information the City Council may receive from the business owners which the City 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. Also hold a discussion with the City's attorneys on the referenced topic where 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. This item was discussed in the second Closed Meeting. C. ID 15 -524 Consultation with Attorneys - Under Texas Government Code, Section 551.071 Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, regulation of gas well drilling and production within the City City of Denton City Council Minutes June 30, 2015 Page 2 Limits and the extraterritorial jurisdiction, including: Constitutional limitations, statutory limitations upon municipal regulatory authority; statutory preemption and vested rights; impacts of federal and state law and regulations; impacts of gas well drilling upon protected uses and vice - versa; current and proposed extension to moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current and proposed; settlement matters concerning gas well drilling in the City; surface development issues involving surface and mineral estates; and legal matters associated with a citizen's initiative ordinance and pending litigation styled George P. Bush, Commissioner, Texas General Land Office v. City of Denton Texas, Cause No. 15- 02058 -362 currently pending in the 362nd District Court of Denton County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 08933 -431 currently pending in the 431st District Court of Denton County regarding hydraulic fracturing where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. D. ID 15 -525 Consultation with Attorneys - Under Texas Government Code Section 551.071 and Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087. Discuss, deliberate, receive information from staff and provide staff with direction pertaining to legal and economic development issues related to a potential economic development project generally located in the 2000 to 3000 blocks of South Interstate 35 East. This discussion shall include commercial and financial information the City Council has received from a prospect 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 incentive where 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. E. ID 15 -528 Consultation with Attorneys - Under Texas Government Code Section 551.071, Deliberations regarding Economic Development Negotiations - Under Texas Government Code Section 551.087, and Deliberations regarding Real Property - Under Texas Government Code Section 551.072. Discuss, deliberate, receive information from staff and provide staff with direction pertaining to legal and economic development issues related to a potential residential economic development project and the acquisition of real property interests generally located in the 900 to 1000 blocks of Ryan Road. This discussion shall include commercial and financial information the City Council has received from a Bob Shelton Enterprises 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 incentive where 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. City of Denton City Council Minutes June 30, 2015 Page 3 F. ID 15 -531 Consultation with Attorneys - Under Texas Government Code, Section 551.071. Consult with and provide direction to City's attorneys regarding legal issues and strategies concerning surface development issues involving surface and mineral estates in connection with Consent Agenda Item No. 1.C., where a public discussion of these legal matters would conflict with the duty of the City's attorneys under Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. G. ID 15 -532 Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Discuss, deliberate, receive information from staff and provide staff with direction pertaining to the acquisition of real property interests in the in the Alexander Hill Survey, Abstract No. 623, located in the City of Denton, Denton County, Texas, and located generally in the 200 block of Collins St. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests 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. (DME- Locust SS) [File ID 15 -533] Following the completion of the Special Called Closed Meeting, the City Council convened in a Special Called Meeting of the City of Denton City Council to consider the following items: 1. Consent Agenda Mayor Pro Tem Gregory motioned, Council Member Johnson seconded to approve the Consent Agenda and accompanying ordinances with the exception of Item C which would be considered separately. On roll call vote, Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye" Council Member Johnson "aye ", Council Member Wazny "aye ", and Mayor Watts "aye ". Motion carried unanimously. Ordinance No. 2015 -193 A. ID 15 -520 Consider adoption of an ordinance of the City Council of Denton, Texas, authorizing the City Manager to execute the "Utility Adjustment Agreement Amendment No. 001 to Agreement No. 35E -U- 0503" to the original "Project Utility Adjustment Agreement" in the amount of $2,916,668.95, of which $447,853.65 is payable by the City of Denton for City requested betterments; facilitating and authorizing the Lake Lewisville water line relocations for the Interstate Highway 35 Project, in substantial conformity with the previously executed Texas Department of Transportation agreements with the Developer, AGL Constructors, which is a consortium composed of Archer Western Contractors, LLC, Granite Construction Co. and the Lane Construction Company; and the Texas Department of Transportation; authorizing the expenditure of funds therefor; and providing an effective date. The PUB recommends approval (5 -0). City of Denton City Council Minutes June 30, 2015 Page 4 Ordinance No. 2015 -194 B. ID 15 -521 Consider adoption of an ordinance of the City Council of Denton, Texas, authorizing the City Manager to execute the "Early Release for Construction - Utility Adjustment Agreement Amendment 35E -U- 003 -002 to Agreement No. 35E -U- 0503" to the original "Project Utility Adjustment Agreement" in the amount of $1,020,815.00; facilitating and authorizing the adjustment of City of Denton water and wastewater facilities for the Interstate Highway 35 project, in substantial conformity with the previously executed Texas Department of Transportation agreements with the Developer, AGL Constructors, which is a consortium composed of Archer Western Contractors, LLC, Granite Construction Co. and the Lane Construction Company; and the Texas Department of Transportation; authorizing the expenditure of funds therefor; and providing an effective date. The PUB recommends approval (4 -0). Ordinance No. 2015 -196 D. ID 15 -533 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager, or his designee, to execute a contract of sale between the City of Denton, Texas ( "City "), as Buyer, and Tomasa Garcia and Spouse ( "Owner "), as Seller, to acquire fee title to a 2.484 acre tract situated in the Alexander Hill Survey, Abstract No. 623, located in the City of Denton, Denton County, Texas, and more particularly described in Exhibit "1 ", and located generally in the 200 block of Collins St., ( "Property Interests "), for the purchase price of Six Hundred Seventy Six Thousand Two Hundred and Seventy Six Dollars and no cents ($676,276.00), and other consideration, as prescribed in the contract of sale ( "Agreement "); authorizing the expenditure of funds; and providing an effective date. [File ID 15 -532] Item C was considered. Ordinance No. 2015 -195 C. ID SI15 -0017 Consider adoption of an ordinance of the City of Denton approving a Surface Waiver and Lease Ratification Agreement amongst the Pitner Family Limited Partnership, Kelsoe & Riley, LLC, EagleRidge Energy, LLC, Corbin Exploration Limited Partnership, ARP Barnett, LLC and the City of Denton, Texas to allow for the development of the Ryan Meadows Addition residential subdivision; authorizing the City Manager or his designee to execute the Surface Waiver and Lease Ratification Agreement; and providing an effective date. Darren Groth, Gas Well Administrator, stated that the purpose of the agreement was to avoid a surface plat and residential development. He reviewed the history of the property, showed the location of the property and the gas well plat, reviewed the zoning map, and the preliminary plat. The agreement would reduce the number of gas well sites at three locations. There was a change to the language in the agreement to renumber the sections Mayor Watts requested that the new section 2.0 language be read with the new sentence added and other language. Groth read the revised language for consideration. City of Denton City Council Minutes June 30, 2015 Page 5 Mayor Pro Tem Gregory motioned, Council Member Johnson seconded to adopt the ordinance with the amendments. On roll call vote, Council Member Briggs "aye ", Mayor Pro Tem Gregory "aye ", Council Member Johnson "aye ", Council Member Wazny "aye ", and Mayor Watts it Motion carried unanimously. 2. 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 did not have any items. Following the completion of the Special Called Meeting, the City Council convened in a Special Called Work Session. 1. Work Session Reports Item B. was considered. B. ID 15 -517 Receive a report, hold a concerning potential application for Regional projects within the City of Denton. discussion, and provide staff with direction Toll Revenue (RTR) funds for transportation John Davis, Director of Engineering Services, stated that the proposed application would allow for a regional toll revenue funding method from regional transportation funding. He reviewed projects which had received RTR funding in the past. It was expected that there would be significant competition from other cities for the remaining funds. He outlined five projects for Council direction and noted that the deadline for submission was the end of July. He also noted that for any non -I35 project a 20% local match would be required. The project outlined included (1) Project 1 - I35 Overpass of Brinker Road; (2) Project 2 - I35 overpass of Loop 288 upgrade and Mayhill Rd. U -Turn; (3) Project 3 — FM 1515 (Airport Road) — Airport to I35, would require a local match unlike Projects 1 and 2; (4) Project 4 — McKinney Street — Woodrow to east of Ryan High School, staff was working with TxDOT to accomplish this project. City of Denton City Council Minutes June 30, 2015 Page 6 Council discussed the potential of this project in terms of RTC funding and whether to do the project in phases in order to get the project done at least to Ryan High School. The project could be taken off the RTR funding list if done through RTC funding. Consensus was to take this project out of the RTR funding and pursue it through the RTC funding. Mayor Pro Tem Gregory asked how the City could compete effectively for the funding. Davis stated that any support from other entities would be helpful. Jon Fortune, Assistant City Manager, stated that it would be important to have the County on board before pursuing any RTR funding. Davis continued with Project 5 which was Bonnie Brae segments north of I35. This was a potential future project. Consensus of Council was to apply for the Loop 288 project and work with the County to determine if they would be in agreement with that project. Fortune stated that staff would continue looking for other funding for the other projects. Item C was not considered. Council considered Work Session Item A. A. ID 15 -449 Take a tour of City Hall West and receive a report, hold a discussion, and give staff direction regarding projects, priorities, and organizational structure of the Planning and Development Department. Council participated in a tour of City Hall West. Council returned to the Conference Room and continued with the discussion of projects, priorities, and organizational structure of the Planning and Development Department. Bissett spoke on current initiatives, organizational structure, projects and priorities. Current initiatives included LEAN Government, Customer Service Improvement, Analysis of the DRC process, Technology Assessment & Upgrades, and Financial Assessment. The prior organizational structure and the current organizational structure were reviewed. This discussion would center on the Planning Division and the Building Inspections Department. The Planning Division Priorities were presented. Some were these were Council - directed and some were additional priorities. The number of new planning cases processed annually was reviewed. The current structure had all of the planners working on cases and the demands of the case reviews meant that other priorities would not get done. A new organizational structure was shown in terms of development review and long -range planning. City of Denton City Council Minutes June 30, 2015 Page 7 Long range priorities included (1) Clarion Scope of Work — update DDC, (2) immediate DDC amendments, (3) tree code update, (4) sign code update, (5) wayfinding signage, (6) I35 corridor redevelopment plan, (7) implementation of the Denton 2030 plan, (8) neighborhood planning and (9) Historic Landmark Commission. The objectives of the Clarion Scope of Work were to address specific structural issues, create a basis /foundation before the Comprehensive Plan adoption. Immediate DDC amendments included such areas as crafting alcohol production, microbreweries, wineries, and distilleries. New uses would be defined such as data centers, food parks, and municipal utilities. "Low hanging fruit" such as NRS lot coverage and DC -G maximum height would also be considered. Proposed projects to outsource included the I35 corridor redevelopment plan to address non- conforming uses and master plan for redevelopment plus the implementation of the Denton 2030 plan for sector studies for re- zoning to future land use plan. Internal Project Management covered the areas of the implementation of the Denton 2030 plan, prioritization of small area plans and corridor plans, wayfinding signage program, and the Historic Landmark Commission. Development Review priorities included DRC process improvements; DRC website, forms and communication; Development Review Team concept; Rayzor Ranch vision and overlay; Cole Ranch development standards; Development Review goals, reporting, auditing and monitoring; and permit center concept and annexations. Development review involved three primary departments - Planning for land use, Engineering for infrastructure and Building Inspections for permitting. A new concept was being considered for a development review team concept that would include a development review administrator with 4 teams. Each team would have a planner, engineer and plans examiner. The Building Inspections Department consisted of Plan Review and Inspections. Plan Review involved commercial plan review, residential plan review and fire safety review. Fire Safety reported to Fire. Inspections involved building inspections, health inspections and fire safety inspections. The Building Inspections priorities and workload was presented in terms of permits issued and the number of inspections per inspector per day for the last 12 months. Future Trends involved (1) Ranger One with an anticipated $300,000 in inspection fees (2) Rayzor Ranch South — Phase 1 with clearing and grading underway, and mid -year staffing additions and new FTEs in a budget request. Next steps were to report on findings of the Development Review Process and make recommendations for improvement; kick start the Clarion work; and standardize monthly reports to show progress. Council Member Johnson asked if the vacant positions were included in the budget. City Manager Campbell replied correct. City of Denton City Council Minutes June 30, 2015 Page 8 Council Member Johnson asked if the money carried over to the next year. City Manger Campbell stated not the money but the budget was there. Council Member Johnson asked about the budget for the next year projections for sales tax and revenue, etc. as Ranger 1 was not contemplated when the budget was put together. There needed to be some thought given about a way to have in the budget a mechanism if additional work load was created by a new project so as to increase staffing level at that time instead of waiting for the next year's budget. City Manger Campbell stated that two Building Inspector positions were included in this next year. Those would carry forward to the next budget but staff was moving forward now due to the demand. Council discussed the managed vacancy program and the need to maintain the budgeted amount of savings. Council Member Wazny stated that she was in favor of moving ahead with the proposed changes and suggesting asking other cities what they had done in their Planning Department. Bissett stated that they had already been doing some benchmarks with other cities. Council Member Wazny suggesting having a plan ready if staff outgrew the building on where to house all of the employees. Council discussed the team concept for the development process and the value of that concept. Council also discussed the productivity of Planning employees and their poor working environment. There was a need to find a short term solution and then a long term solution for the work environment. It was a challenge for Council to find a decent facility for the Planning staff and needed to find ways to solve the immediate problems for City Hall West. Council Member Wazny felt that Council needed to make this a priority on where Planning could go to maximize efficiency and help with employee retention. Council Member Johnson asked for a report on the amount of money in the CIP that hadn't been spent on the building. Mayor Watts stated they had talked about a municipal complex but needed to start to formulate a short term and long term fix for all city buildings. Consensus of the Council was to proceed with in the direction of Bissett's presentation. Council Member Wazny felt there needed to be a team to look for space and when options were needed. She suggested looking at options in September which would give the team time to canvass the City and look for space. City Manager Campbell stated that Council had looked at Planning tonight but that there were also staff at three different city halls with other people who interacted with the Planning City of Denton City Council Minutes June 30, 2015 Page 9 Department and those relationships with other departments could not be ignored. This was a critical need in an important department but it was related to other areas of the organization as well. Mayor Pro Tem Gregory suggested looking at an interim step for immediate relief. Council Member Wazny suggested an interim plan get out of City Hall West and into a functional area. City Manger Campbell stated that staff would put together game plan on how to formulate the needs. Council Member Johnson suggested determining how much space was needed and what the adjacency requirements were for other employees for a short term solution. Bissett stated that staff would look at the inventory of space in the City, what the immediate needs were for Planning and what were the needs for adjacent employees. Council returned to the Closed Meeting 10:04 p.m. to discuss Item B listed above under the Closed Meeting section of the minutes. Council convened in Open Session at 11:00 p.m. and with no further business, the meeting was adjourned. CHRIS WATTS MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -678, Version: 1 DEPARTMENT: CM/ ACM: Date: Police John Cabrales August 4, 2015 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No. 2014 -423, prescribing the number of positions in each classification of police officer; providing a repealer clause; and declaring an effective date. BACKGROUND Texas Local Government Code Chapter 143 requires the governing bodies of all jurisdictions with Civil Services employees to officially authorize the exact number of Civil Service employees. The Police Department is currently experiencing an extended absence of a Police Sergeant, with an unknown date of return to service. Since January 2015, the Department has been utilizing an "Acting Sergeant" who has assumed the responsibilities of the role and is being compensated at the Sergeant Rank. This employee is currently at the top of the existing Sergeant promotional list. This promotional list expires on August 8, 2015. The next promotional test is not scheduled to be given until September 2015, and certification of that list by the Civil Service Commission will not happen until at least October 2015. The Police Department requested an additional Sergeant position in the FY 15- 1613budget, which is recommended for funding in the City Manager's Proposed Budget. The Department would like to make a promotion off of the current promotional list before it expires. Doing this will allow the Department to promote an employee who has demonstrated exceptional skill in the position for the past seven (7) months. It would also allow the Department to avoid an extended absence in filing the new position while waiting for the next promotional examination to be administered and certified. FISCAL INFORMATION There will be no additional fiscal impact in FYI 4-15. EXHIBITS Exhibit 1 - Sworn Position Ordinance Respectfully submitted: Lee Howell Chief of Police City of Denton Page 1 of 2 Printed on 7/30/2015 File M ID 15 -678, Version: 1 Prepared by: Scott Fletcher Deputy Chief City of Denton Page 2 of 2 Printed on 7/30/2015 h rvvm d by I cx:ls i''I sAlegal \our documents \ordinances \15\2014 -2015 sworn officer ordinance 2.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING ORDINANCE NO. 2014 -423, PRESCRIBING THE NUMBER OF POSITIONS IN EACH CLASSIFICATION OF POLICE OFFICER; PROVIDING A REPEALER CLAUSE; AND DECLARING AN EFFECTIVE DATE. WHEREAS, on December 16, 2014, the City Council passed Ordinance No. 2014 -423, adopting and approving a schedule of Authorized Positions which relates to compensation and classification of police officers and fire fighters; and WHEREAS, since the passage of Ordinance No. 2014 -423, the Police Department has determined that this ordinance needs to be amended to more correctly reflect the total number of Police Department positions; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Ordinance No. 2014 -423 is hereby amended as provided herein. SECTION 2. The City Council hereby adopts and approves a schedule prescribing the number of positions for each classification of police officer in the City of Denton, attached hereto and incorporated by reference herein as Exhibit "A." SECTION 3. This ordinance shall be cumulative of all provisions of ordinances of the City of Denton, Texas, except where the provisions of the ordinance are in direct conflict with the provisions of such ordinances, in which event the conflicting provisions of such ordinances are hereby repealed. SECTION 4. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph, or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph, or section. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12015. CHRIS WATTS, MAYOR sAlegal \our documents \ordinances \15\2014 -2015 sworn officer ordinance 2.docx ATTEST: JENNIFER WALTERS, CITY SECRETARY • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY :�, Page 2 s: \legal \our documents \ordinances \15\2014 -2015 sworn officer ordinance 2.docx EXHIBIT "A" Police Department: CLASSIFICATION 2014 -423 NUMBERS Proposed NUMBERS Chief of Police 1 1 Deputy Chief 3 3 Captain 0 0 Lieutenant 8 8 Sergeant 16 17 Police Officer (and Recruits) 135 j 135 TOTALS 163 1 164 Page 3 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON Legislation Text File #: ID 15 -680, Version: 1 Agenda Information Sheet DEPARTMENT: Legal CM/ ACM: Anita Burgess, City Attorney Date: August 4, 2015 SUBJECT Consider adoption of an ordinance repealing Ordinance No. 2011 -038 and enacting a new Section 2 -29 of the City of Denton Code of Ordinances relating to Rules of Procedure for the City Council of the City of Denton; and declaring an effective date. BACKGROUND: The City Council heard a report from the City staff, at the April 21, 2015 City Council meeting, concerning possible amendments to the City Council Rules of Procedure. At that meeting, City staff explained that staff recommended: some revisions to the order of the Rules to make them more understandable; reorganization of two sections (Types of Meetings and Reports from Members of the Public); deletions of duplicative sections (Time Limits was specified in multiple and duplicative sections); updating of citations and correction of erroneous references; addition of a prohibition on distribution of political materials in the Council Chambers; addition of a video conferencing section; addition of a provision referencing Luncheon Meetings to comport with council practice; addition of procedures for Public Hearings, and; clarification of the 3/4 voting requirement. At the April 21, 2015 City Council meeting, staff sought Council direction as to: time limits for members of the public wishing to address Council; location on the agenda of public reports and public comments for the consent agenda. Having provided direction on these items, the City Council further expressed a desire to: clarify consensus direction at work sessions and luncheon meetings; further clarify the 3/4 majority vote requirements; lower the number of people required to constitute a Group or Organization and amend those attendant procedures; reserve unto the Council the right to limit speakers' time in the interest of meeting efficiency; create an "Open Microphone" procedure, and; add a provision allowing citizens to notify the City Secretary in the event they desire to speak to consent agenda items at the regular City Council meeting. At a Work Session at the City Council meeting of July 28, 2015, Staff presented the referenced amendments to City Council and further proposed an addition to the section of the Rules relating to City Boards and Commissions to require that City Boards and Commissions comply with the policies and procedures of the City Secretary in preparing the minutes of meetings. During this meeting, the City Council, by consensus, accepted the Staff's recommended amendments to the City Council Rules of Procedure with two adjustments: 1) that the number of speakers allowed to make comment to the City Council at the Open Microphone period of Presentations from Members of the Public be increased from two (2) to four (4), and; 2) that the videoconferencing provisions be re- drafted to allow use of videoconferencing by City Council members as a City of Denton Page 1 of 2 Printed on 7/30/2015 File #: ID 15 -680, Version: 1 matter of right in the event of absence due to travel or illness. Staff recommends adoption of the amended Rules of Procedure at the City Council meeting of August 4, 2015. PRIOR ACTION/REVIEW: City Council Meeting of April 21, 2015. City Council Meeting of July 28, 2015 Exhibits: 1. Proposed Ordinance (redlined) 2. Proposed Ordinance (final form) City of Denton Page 2 of 2 Printed on 7/30/2015 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc ORDINANCE NO. AN ORDINANCE REPEALING ORDINANCE NO. 2011 -038 AND ENACTING A NEW SECTION 2 -29 OF THE CITY OF DENTON CODE OF ORDINANCES RELATING TO RULES OF PROCEDURE FOR THE CITY COUNCIL OF THE CITY OF DENTON; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton desires to conduct the City Council meetings of the City of Denton in the most efficient and time effective manner; and WHEREAS, the City Council also desires to allow open dialogue by citizens of the community regarding the business of city government; and WHEREAS the City Council desires to streamline the City Council meetings, and facilitate citizen's access to make comments to their local governing body; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That Section 2 -29 of the City Code, known as the Denton City Council Rules of Procedure, is hereby enacted to read as follows: 1. (2- 29(a)) AUTHORITY 1.1(1) Chart er: Pursuant to the provisions of Section 2.07 of the Charter of the City of Denton, Texas, the City Council hereby enacts these rules of procedure for all meetings of the City Council of the City of Denton, Texas. During any meeting, a reasonable opportunity shall be given for citizens to be heard under these rules. These Rules of Procedure are enacted as guidelines to be followed by all persons in the Council Chamber including the city administrative staff, news media, and visitors. 2. (2- 29(b)) GENERAL RULES 2.1 (1) Meetings to be Public: All official meetings of the Council and Council committees and subcommittees, except closed meetings permitted by the provisions of the Texas Open Meetings Act, Chapter 551, TEx. Gov'T CODE (Vernon 2014), as amended, shall be open to the public. 2.2 (2) Quo rum: Four members of the Council shall constitute a quorum for the transaction of business. (Charter, Section 2.06) 2.3 (3) Compelling Attendance: No member shall be excused from attendance at a Council meeting except for good and valid reasons. It will be the duty of the Council member to notify the City Secretary prior to the meeting at which he or she is going to be absent. The City Secretary will record each Council member as being present or absent as a part of the minutes prepared for each Council meeting. S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc 2.4 (4) Misconduct: The Council may punish its own members for misconduct consistent with any Ethics Policy adopted by the Council. 2.5 (5) Minutes of Meetings: An account of all proceedings of the Council shall be kept by the City Secretary and shall be entered in a book constituting the official record of the Council. A certified agenda shall be prepared and shall be approved by the Mayor for all closed meetings for which a certified agenda is required to be kept in accordance with the Texas Open Meetings Act. 2.6 (6) Questions to Contain One Subject: All questions submitted for a vote shall contain one subject, except the City Council may approve all items which are on the consent agenda in one motion, regardless of how many subjects are contained in the consent agenda, so long as all items have been properly posted in accordance with the Texas Open Meetings Act and have not been removed from the consent agenda by a Council member. If two or more points are involved, any member may require a division, if the question reasonably admits of a division. 2.7 (7) Right to Floor: Any member desiring to speak shall be recognized by the Chairperson, and shall confine his or her remarks to the subject under consideration or to be considered. No member shall be allowed to speak more than once on any one subject until every member wishing to speak shall have spoken. 2.8 (8) City Manager: The City Manager, or Acting City Manager, shall attend all meetings of the Council unless excused. He or she may make recommendations to the Council and shall have the right to take part in all discussions of the Council, but shall have no vote. (Charter, Section 5.03 (d)). 2.9 (9) City Attorney: The City Attorney, or Acting City Attorney, shall be available upon request for all meetings of the Council unless excused and shall, upon request, give an opinion, either written or oral, on questions of law. The City Attorney shall act as the Council's parliamentarian. 2.10 (10) City Secretary: The City Secretary, or Acting City Secretary, shall attend all meetings of the Council unless excused, and shall keep the official minutes and perform such other duties as may be requested by the Council. 2.11 (11) Officers and Employees: Any officer or employee of the City, when requested by the City Manager, shall attend any meeting of the Council. If requested to do so by the City Manager, such employee may present information relating to matters before the Council. 2.12 (12) Rules of Order: These rules govern the proceedings of the Council in all cases, except that where these rules are silent, the most recent Edition of Robert's Rules of Order shall govern. 2.13 (13) Suspension of Rules: Any provision of these rules not governed by the City Charter or other City Code provisions may be temporarily suspended by the affirmative vote of four members of the Council. The vote on any such suspension shall be taken by yeas or nays and PAGE 2 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc entered into the minutes of the Council. 2.14 (14) Amendment of Rules: These rules may be amended, or new rules adopted by the affirmative vote of four members of the Council, provided that the proposed amendments or new rules shall have been introduced before the City Council at a prior Council meeting. 3. (2- 29(c)) CODE OF CONDUCT 3.1 (1) Council members: a. During Council meetings, Council members shall preserve order and decorum and shall neither by conversation or otherwise delay or interrupt the proceedings nor refuse to observe the rules of the Council. b. A Council member, once recognized, shall not be interrupted while speaking unless called to order by the Mayor or presiding officer, unless a point of order is raised by another member or the parliamentarian, or unless the speaker chooses to yield to questions from another member. If a Council member is called to order while he or she is speaking, he or she shall cease speaking immediately until the question of order is determined. If ruled to be in order, he or she shall be permitted to proceed. If ruled not to be in order, he or she shall remain silent or shall alter his or her remarks so as to comply with rules of the Council. 3.2 (2) Administrative Staff: a. Members of the Administrative staff and employees of the City shall observe the same rules of procedure and decorum applicable to members of the Council, and shall have no voice unless and until recognized by the Chair. b. While the presiding officer shall have the authority to preserve decorum in meetings as far as staff members and City employees are concerned, the City Manager also shall be responsible for the orderly conduct and decorum of all City employees under his or her direction and control. c. The City Manager shall take such disciplinary action as may be necessary to insure that such decorum is preserved at all times by City employees in Council meetings. d. All remarks and questions addressed to the Council shall be addressed to the Council as a whole and not to any individual member thereof. e. No staff member, other than a staff member having the floor, shall enter into any discussion either directly or indirectly without permission of the presiding officer. 3.3 (3) Citizens: a. Citizens and other visitors are welcome to attend all public meetings of the City Council, and will be admitted to the City Council Chamber or other room in which the City Council is meeting, up to the fire safety capacity of the room. PAGE 3 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc b. All meeting attendees shall conduct themselves with propriety and decorum. Conversations between or among audience members should be conducted outside the meeting room. Attendees will refrain from excessively loud private conversations while the Council is in session. c. Unauthorized remarks from the audience, stamping of the feet, applauding, whistles, yells, and similar demonstrations shall not be permitted. d. Placards, banners, signs, pamphlets, flyers, or political materials of any type will not be permitted in the City Council Chamber or in any other room in which the City Council is meeting. Exhibits, displays, and visual aids used in connection with presentations to the City Council, however, are permitted. e. Audience members may not place their feet on any chairs in the City Council Chamber or other room in which the City Council is meeting. f. Only City Council members and City staff may step onto the dais. g. All people wishing to address the City Council shall first be recognized by the presiding officer and shall limit their remarks to the matter under discussion. h. All remarks and questions addressed to the City Council shall be addressed to the City Council as a whole and not to any individual members. i. Any person addressing the City Council in the City Council Chamber shall do so from the lectern unless physically unable to do so. People addressing the City Council shall not be permitted to approach the dais. If they wish to hand out papers or other materials to the City Council, they should express that desire to the presiding officer, and the City Manager shall direct a staff member to hand out the materials. j. When the time has expired for a presentation to the City Council, the presiding officer shall direct the person speaking to cease. A second request from the presiding officer to cease speaking shall be cause of the removal of the speaker if that person continues to speak. k. Equipment, apparatus, or paraphernalia such as camera tripods, easels, or wheelchairs shall not obstruct, block, or otherwise be located in the doorway, entranceway, or walkways of the City Council Chambers or of any other room in which the City Council may choose to meet. Representatives of the electronic media may set up cameras and other equipment only in the back of the room. It is permissible for television camera operators to film for short periods of time (several minutes) from the entranceway to the City Council Chambers. Any radio station, which broadcasts the regular City Council meetings live, may hook their equipment up at the front of the room as long as it remains out of sight and out of the way. 1. There will be a uniformed City of Denton police officer present at all regular meetings of the City Council. This police officer shall act in the capacity of a security officer /sergeant -at- PAGE 4 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc arms, and shall enforce the meeting rules and act upon the direction of the presiding officer. m. Any person making personal, impertinent, profane, or slanderous remarks, or who becomes boisterous while addressing the City Council or who otherwise violates any of the above - mentioned rules while attending a City Council meeting shall be removed from the room at the direction of the presiding officer, and the person shall be barred from further audience before the City Council during that session of the City Council. If the presiding officer fails to act, any member of the City Council may move to require the offending person's removal, and the affirmative vote of a majority of the City Council shall require the presiding officer to act. The sergeant -at -arms, if so directed by the presiding officer or an affirmative vote of the majority of the City Council, shall remove the offending person from the meeting. 3.4 (4) Enforcement: The City Manager, in the absence of a designated law enforcement officer, shall act as Sergeant at Arms for the council, and shall furnish whatever assistance is needed to enforce the rules of decorum herein established. 3.5 (5) Seating Arrangement: The City Secretary, City Manager and City Attorney shall occupy the respective seats in the Council Chamber assigned to them by the Mayor, but any two or more members of the Council may exchange seats. 3.6.1 (6) Videoconferencing. City Council members may elect to participate in a City Council meeting by videoconference in the event the member is traveliny or unable to attend a meeting due to illness. a. Procedures for meeting by videoconference if a quorum will be in one physical location: The council meeting notice shall specify where the quorum of the governmental body will be physically present, and the intent to have a quorum present at that location. The video and audio feed of a remote councilmember or employee shall be broadcast live at the meeting. Each portion of the meeting held by videoconference call that is required to be open to the public shall be visible and audible to the public at the location where the quorum is present. The location at which the quorum is present, and each remote location from which a member of the governmental body participates, shall have two - way audio and video communication with each other location during the entire meeting. Each participant's face in the videoconference call, while speaking, shall be clearly visible and audible to each other participant and, during the open portion of the meeting, to the members of the public in attendance at the location where a quorum is present, and at any other location of the meeting that is open to the public. The audio and video signals perceptible by members of the public at each location of the meeting shall meet or exceed minimum standards established by Texas Department of Information Resources (DIR) rules. The audio and video signals perceptible by members of the public at the location where the quorum is present and, any other location open to the public, shall be of sufficient quality so that members of the public at each location can observe the demeanor and hear the voice of each participant in the open portion of the meeting. If a problem occurs that causes a meeting to no longer be visible and audible to the public at the location where a quorum is present, the meeting shall be recessed until the problem is resolved, and if the problem is not resolved in six hours or less, the meeting shall be PAGE 5 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc adjourned. The City shall make at least an audio recording of the meeting, and the recording shall be made available to the public. b. Procedures for meeting by videoconference if a quorum will not be in one physical location: The City shall make available to the public at least one suitable physical space in the City that is equipped with videoconference equipment that provides an audio and video display, as well as a camera and microphone, by which a member of the public can provide testimony or otherwise participate in the meeting. The member of the governmental body presiding over the meeting shall be present at this site, and the location must be open to the public. The meeting notice shall specify the physical space provided, and shall also specify the intent to have the presiding officer present at the location. Any member of the public present at this location shall be provided the opportunity to participate in the meeting by means of a videoconference call in the same manner as a person who is physically present at a meeting of the governmental body that is not conducted by videoconference. Each portion of the meeting held by videoconference call that is required to be open to the public shall be visible and audible to the public. The video and audio feed of a remote councilmember or employee shall be broadcast live at the meeting. The site provided in the City and each remote location from which a member participates, shall have two -way audio and video communication with each member who is participating by videoconference during the entire meeting. Each participant's face in the videoconference, while speaking, must be clearly visible and audible to each other participant and, during the open portion of the meeting, to the members of the public in attendance at the meeting location in the City, and at any other location of the meeting that may be open to the public. The audio and video signals perceptible by members of the public at each location of the meeting shall meet or exceed minimum standards established by DIR rules. The audio and video signals perceptible by members of the public at each location of the meeting that is open to the public, and each remote location, must be of sufficient quality so that members of the public at each location can observe the demeanor and hear the voice of each participant in the open portion of the meeting. If a problem occurs that causes the meeting to no longer be visible and audible to the public at the meeting site in the City, the meeting must be recessed until the problem is resolved, and if the problem is not resolved in six hours or less, the meeting shall be adjourned. The City shall make at least an audio recording of the meeting, and the recording shall be made available to the public. c. Council Members wishing to participate in a meeting by videoconference shall provide notice to the City Manager and the Agenda Committee not less than seven (7) days prior to the meeting_, and the Agenda d„ rn,,,mittee Will r;de,- .- s1s emstde. 4. (2- 29(d)) TYPES OF MEETINGS 4.1 (1) Regular Meetings: The Council shall meet on the first and third Tuesday of each month, at such time as may be set by the City Council, unless the meeting is postponed or cancelled for valid reasons. All regular meetings of the Council will be held in City Hall at 215 East PAGE 6 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc McKinney Street, Denton, Texas or at such other location as the City Council may, from time to time by proper posting under the Open Meetings Act and so long as the location is open to the public, designate. 4.2 (2) Special Meetings: Special meetings may be called by the Mayor, the City Manager, or by any three members of the Council. The City Secretary shall post notice thereof as provided by the Texas Open Meetings Act. The Mayor, City Manager, or three of the council members may designate a location for the special meeting other than City Hall, as long as the location is open to the public. 4.3 (3) Workshop Meetings: Workshop meetings (also referred to as "work sessions ") may be held on the first and third Tuesday of each month at such time as may be set by the City Council, or on such other day as the City Council may designate and at such time as may be set by the City Council, to discuss near to mid or long range issues and to answer City Council questions concerning all agenda items. Workshops or work sessions may be called using the same procedure required for special meetings as provided for in Section 4.2(2) above. The purpose of the workshop meeting is to discuss or explore matters of interest to the City, to meet with City boards, commissions, or committee members, City staff or officers of civic organizations, governing bodies or individuals specifically invited to the session by the Mayor, Council or City Manager. These meetings are informational and normally no final action shall be taken unless the posted agenda indicates otherwise. However, the City Council may, by consensus, provide general direction to staff with regard to matters of interest or concern, understanding such matters ultimately may require a formal vote of the Council for implementation. 4.4(4) Luncheon Meetings: Luncheon workshop or work session meetings may be held on the first Monday of each month at such time as may be set by the City Council, or on such other day as the City Council may designate. Such meetings may be called using the same procedure required for special meetings as provided for in Section 4.2(2) above. The purpose of the luncheon meeting is to discuss or explore matters of interest to the City, to meet with City boards, commissions, or committee members, City staff or officers of civic organizations, governing bodies or individuals specifically invited to the session by the Mayor, Council or City Manager. These meetings are informational and normally no final action shall be taken unless the posted agenda indicates otherwise. However, the City Council may, by consensus, provide general direction to staff with regard to matters of interest or concern, understanding such matters ultimately may require a formal vote of the Council for implementation. 4.5 (5) Emergency Meetings: In case of emergency or urgent public necessity, which shall be expressed in the notice of the meeting, an emergency meeting may be called by the Mayor, the City Manager or by three members of the Council, and it shall be sufficient if the notice is posted two hours before the meeting is convened. 4.6 (6) Closed Meetings: The Council may meet in a closed meeting pursuant to the requirements of the Texas Open Meetings Act. 4.7 (7) Recessed Meetings: Any meeting of the Council may be recessed to a later time, provided that no recess shall be for a longer period than until the next business day. PAGE 7 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc 4.8 (8) Notice of Meetings: The agenda for all meetings, including Council Committee or Subcommittee meetings, shall be posted by the City Secretary on the City's official bulletin board and notice of all meetings shall be given by the City Secretary pursuant to the requirements of the Texas Open Meetings Act. 5. (2- 29(e)) PRESIDING OFFICER AND DUTIES 5.1 (1) Presiding Officer: The Mayor, or in the absence of the Mayor, the Mayor Pro -Tem, shall preside as chairman, or presiding officer at all meetings of the Council. In the absence of the Mayor and the Mayor Pro -Tem, the Council shall elect a temporary presiding officer. (Charter, Section 2.03). 5.2 (2) Call to Order: The meetings of the Council shall be called to order by the Mayor, or in his or her absence, by the Mayor Pro -Tem. In the absence of both the Mayor and the Mayor Pro - Tem, the meeting shall be called to order by the City Secretary, and a temporary presiding officer shall be elected as provided above. 5.3 (3) Preservation of Order: The presiding officer shall preserve order and decorum, and confine members in debate to the question under discussion. The presiding officer shall call upon the Sergeant -at -Arms as necessary to enforce compliance with the rules contained herein. 5.4 (4) Points of Order: The presiding officer shall determine all points of order, subject to the right of any member to appeal to the Council. If any appeal is taken, the question shall be, "Shall the decision of the presiding officer be sustained ?" If a majority of the members present vote "No," the ruling of the chair is overruled; otherwise, it is sustained. 5.5 (5) Questions to be Stated: The presiding officer shall state all questions submitted for a vote and announce the result. A roll call vote shall be taken upon the request of any member, and upon the passage of all ordinances and resolutions. 5.6 (6) Substitution for Presiding Officer: The presiding officer may call any other member to take his or her place in the chair, such substitution not to continue beyond adjournment. 5.7 (7) Call for Recess: The presiding officer may call for a recess of up to fifteen (15) minutes at regular intervals of approximately one hour at appropriate points in the meeting agenda, or if requested by any two members. 6. 2 -29 (f)(4)(5) ORDER OF BUSINESS 6.1 (1) Agenda: The order of business of each meeting shall be as contained in the agenda prepared by the City Manager, which shall be reviewed and approved by an Agenda Committee composed of the Mayor, the Mayor Pro Tem, and the City Manager. When items are removed from the consent agenda and placed on the regular agenda by members of the Council, the removed items shall be taken up in the order of removal right after the consent agenda. Placement of items on the agenda shall be governed by this ordinance; provided that if a Council member has an "emergency" PAGE 8 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc item that the Council member believes should be placed on the next regular or special meeting agenda, the placement must be approved by two members of the Agenda Committee or at the direction of a majority of the Council. Conduct of business at special meetings will likewise be governed by an agenda and these Rules of Procedure. 6.2 (2) Pledge of Allegiance: _ Each agenda shall provide an item for the recital of the "Pledge of Allegiance" at the regularly scheduled city council meetings. This item shall begin with the recital of the pledge of allegiance for the United States flag and shall follow with a recital of the pledge of allegiance for the Texas state flag in accordance with Section 3 100. 101 of the TEx. GOV'T CODE. 6.3 (3) Presentations by Members of Council or City Manager: The agenda shall provide a time when the Mayor or any Council member may bring before the Council any business that he or she feels should be deliberated upon by the Council at a future Council meeting. These matters need not be specifically listed on the agenda, but discussion and formal action on such matters shall be deferred until a subsequent Council meeting. Any member may suggest an item for discussion at a future work session. The City Manager or City staff shall only respond preliminarily on this item at the work session. If the City Council believes the item requires a more detailed review, the Council will give the City Manager or City Staff direction to place the item on a future regular meeting agenda and advise staff as to the background materials to be desired at such meeting. The City Council may receive from the City Manager or City staff or a member of the City Council reports about items of community interest including expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen, except that a discussion regarding a change in the status of a person's public office or public employment is not an honorary or salutary recognition for purposes of this subdivision; 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; and announcements involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda so long as authorized by the Texas Open Meetings Act. 6.4 (4) Presentations from Members of the Public: a. Reports from Members of the Public: Reports from members of the public shall be received through either of two methods: 1) prior registration or 2) open microphone. 1) Prior Registration. Any person who wishes to place a subject on the Council agenda at regular City Council meetings shall advise the City Manager's office of that fact and the specified subject matter which he or she desires to place on the agenda no later than 5:00 p.m. Wednesday prior to the Council meeting at which he or she wishes the designated subject to be considered. Such reports shall be heard either at the beginning of the regular meeting of the City Council, or later on the council's agenda at a place determined by the Agenda Committee in light of the length of the agenda and the anticipation of time needed for the agenda items under consideration. PAGE 9 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc Placement of citizen reports at the beginning of the agenda shall be determined by a rule of rotation as follows: Every member of the public will be given an opportunity for placement of their report at the beginning of the regular city council meeting once every six (6) months; should a citizen desire to present reports more frequently than once every 6 months, such reports will be heard by the council at the time determined by the Agenda Committee. Speakers will be assigned to the first part of the meeting on a first come, first served basis with a limit of three (3) speakers assigned to this early forum. It is the intent of the rule of rotation to better manage the time of the City Council members, the city staff, and to fashion some more available and convenient time for all members of the public to address the City Council on a non - discriminatory and rotating basis. 2) Open Microphone: At the beginning of the regular meeting of the City Council, any person who has not registered to speak as above described may make comments through the open microphone procedure. At the time the City Council calls the Open Microphone comment period, a person may present himself or herself and make public comments regarding public business. This Open Microphone procedure is limited to four 4 speakers per meeting of the City Council. No person may fill out a "request to speak" form in order to speak or comment on another person's report, which is given at the same Council meeting. An announcement may be made, prior to the time for reports from members of the public on the agenda, summarizing the main portions of the Rules and the "Code of Conduct" as they may apply to members of the public speaking to the Council. Any speaker providing a report shall speak for no longer than four (4) minutes on all items that he or she may bring before the Council at each meeting. b. Work Session or Workshop Items: As it concerns the workshop agenda, citizens or other interested persons may not participate in the session unless invited to do so by the Mayor. If the Mayor invites citizens to participate in a work session, their participation will cease at the point the Mayor closes the session to public input to allow the Council to give City staff direction as to needed information for the possible future meeting on the item. Citizens should be advised of the nature of the work session, but that their input on these items is premature until such item is placed upon a City Council agenda for final action. The purpose of this procedure is to allow the citizens attending the regular meeting the opportunity of hearing the views of their fellow citizens in a more formal setting. Any citizen may supply the City Council a written statement or report regarding the citizen's opinion on a matter being discussed in a work session. c. Speaking on Consent and Re Agenda AgAgenda Items: Any person who wishes to address the Council regarding a non -public hearing regular or consent agenda item that is on the Council's agenda, shall complete a "request to speak" form asking to speak regarding the item and shall return it to the City Secretary. On consent items, the request to speak card shall be submitted prior to the citizen comment on consent agenda items at the beginning of the City Council meeting. On regular agenda items, the request to speak card shall be submitted prior to the time the City Council considers the item. The Mayor will call upon the person who desires to speak. 1) Consent Agenda Items: When consent agenda items are posted on an agenda, PAGE 10 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc citizens or other interested persons will be allowed to make citizen comment immediately after the opening of the City Council meeting and prior to workshop or work session items on the agenda by filling out a "request to speak" card (aka a "blue card ") asking to speak on any or all consent agenda items and returning the form to the City Secretary. In the event a person is unable to attend the City Council workshop or work session, he or she may contact the City Secretary prior to the opening of the meeting and request that a consent agenda item be pulled from the consent agenda in order to allow comment as an individual item at the regular meeting of the City Council. The City Secretary shall make any such request known to the City Council. Consent agenda items are generally routine nature, so comment at this time facilitates the regular council meeting where no citizen comment on consent agenda items will be permitted, unless the item is removed from the consent agenda by a member of the Council to be considered as an individual item during the regular meeting. Speakers will be allowed three (3) minutes per speaker and may comment on any or all consent agenda items so long as any speaker's time does not exceed a total of three (3) minutes. 2) Re _ lgu ar Agenda Items: During the regular session of the City Council meeting, any citizen or interested person may comment on an item posted on the agenda for final action. Any person who wishes to address the Council regarding a non -public hearing item that is on the Council's agenda, shall complete a "request to speak" form asking to speak regarding the item and shall return it to the City Secretary before the Council considers the item. This procedure applies to speakers desiring to speak to items for individual consideration on the agenda during the regular meeting of the City Council. The Mayor will call upon the person to speak. Speakers will be allowed three (3) minutes per speaker as to any particular agenda item being considered by the City Council. d. Public Hearings: 1) Any person who wishes to address the Council at a public hearing is encouraged to complete a "request to speak" form and return it to the City Secretary before the applicable hearing. The Mayor will call upon the person to speak. Speakers will be allowed four (4) minutes per speaker as to any public hearing item. However, if numerous speakers desire to comment on an item, Council may limit speakers to three (3) minutes per speaker. Applicants and their agents on public hearing items shall be allowed to speak for no longer than ten (10) minutes per speaker with a total of twenty (20) minutes for all speakers representing the applicant. 2) To facilitate the public hearing process in zoning cases the following procedure will be used: a) The Mayor reads the zoning case caption, and then opens the public hearing. b) The City Manager introduces the City Staff for presentation. c) City Staff presents facts relevant to the matter. PAGE 11 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc d) The applicant presents his or her case, with potential questions of the applicant from the City Council. e) The Council receives input from the public, with potential questions of speakers from the City Council. f) The applicant will be given an opportunity to make rebuttal comments. g) The City Staff and /or the applicant will answer any questions of the City Council. h) Upon conclusion of these questions and answers, the Mayor will continue or close the public hearing. e. Groups or Organizations: Any group or organization comprised of four (4) or more members present in the City Council Chambers who wishes to address the Council at a public hearing or on a non -public hearing agenda item shall designate a representative to address the City Council and shall limit their remarks to ten (10) minutes or less. The group or organization shall turn in a written designation to the City Secretary, on cards prepared by the City Secretary of a different color from cards submitted by individual speakers, prior to the commencement of the meeting identifying the representative who will address the City Council on behalf of the group or organization. At the time the representative is recognized by the Mayor to speak, the group or organization will be asked to stand to be recognized prior to the receipt of comments by the representative. f Discretionary Time: At the discretion of the presiding officer or a majority of the City Council, any speaker may be granted an extension of time to speak. g. AudioNisual Aids: Any citizen desiring to use audio /visual aids during presentations to Council shall submit such presentation to the City Secretary 24 hours prior to the meeting where the presentation will occur. 6.5 (5) Presentation of Proclamations: The agenda may provide a time for the presentation of proclamations. The Mayor or presiding officer may deliver and present proclamations upon the request of citizens. Proclamations may encompass any activity or theme except that proclamations with a theme religious or partisan in nature shall not be presented. Moreover, proclamations shall not be used for any commercial or advertising purpose. 7. (2- 29(g)) CONSIDERATION OF ORDINANCES, RESOLUTIONS, AND MOTIONS 7.1 (1) Printed or Typewritten Form: All ordinances and resolutions shall be presented to the Council in printed, typewritten or electronic form. The Council may, by proper motion, amend any ordinance or resolution presented to it at the meeting at which it is presented or direct that the amended ordinance be placed on the next or any future Council Agenda for adoption. 7.2 (2) City Attorney to Approve: All ordinances, resolutions, and contracts and PAGE 12 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc amendments thereto, shall be approved as to form and legality by the City Attorney, or he or she shall file a written opinion on the legality of such ordinance, resolution or contract prior to submission to the Council. (Charter, Section 6.02). 7.3 (3) Distribution of Ordinances and Resolutions: The City Manager shall prepare copies of all proposed ordinances and resolutions for distribution to all members of the Council at the meeting at which the ordinance or resolution is introduced, or at such earlier time as is expedient. 7.4 (4) Recording of Votes: The yeas and nays shall be taken upon the passage of all ordinances and resolutions and the vote of each member shall be recorded in the minutes. (Charter, Section 2.06 (b)). 7.5 (5) Majority Vote Required: An affirmative vote of four (4) members is necessary to repeal any ordinance or take any official action in the name of the City except as otherwise provided in the Charter, by the laws of the State of Texas, or these Rules. (Charter, Section 2.06). 7.5.1(a) Tie -Vote: Matters voted on by the City Council which end in a tie -vote shall automatically be placed on each subsequent Council meeting agenda until a full Council is present. 7.6 (6) Demand for Roll Call: Upon demand of any member, the roll shall be called for yeas and nays upon any question before the Council, with the exception of those circumstances set forth in Section 7.12, The Previous Question. It shall not be in order for members to explain their vote during the roll call. 7.7 (7) Personal Privilege: The right of a member to address the Council on a question of personal privilege shall be limited to cases in which his or her integrity, character, or motives are assailed, questioned, or impugned. 7.8 (8) Dissents and Protests: Any member shall have the right to express dissent from or protest against any ordinance or resolution of the Council and have the reason therefor entered upon the minutes. Such dissent or protest may be filed in writing, and presented to the Council not later than the next regular meeting following the date of passage of the ordinance or resolution objected to. 7.9 (9) Voting Required: No member shall be excused from voting except for lack of information and except on matters involving the consideration of his or her own official conduct, or where his or her personal interests are involved in accordance with Chapter 171, TEX. Loc. GOV T CODE (Vernon 2014), and in these instances he or she shall abstain. Any member prohibited from voting by personal interest shall announce this at the commencement of consideration of the matter and shall not enter into discussion or debate on any such matter, shall leave the meeting room, and shall file an affidavit of recusal. The member having briefly stated the reason for his or her request, the excuse from voting shall be made without debate. PAGE 13 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc 7.10 (10) Order of Precedence of Motions: a. The following motions shall have priority in the order indicated: 1. Adjourn (when unqualified) and is not debatable and may not be amended; 2. Take a recess (when privileged); 3. Raise a question of privilege; 4. Lay on the table; 5. Previous question (2/3 vote required); 6. Limit or extend limits of debate (2/3 vote required); 7. Postpone to a certain time; 8. Commit or refer; 9. Amend; 10. Postpone indefinitely; 11. Main Motion. b. The first two motions are not always privileged. To adjourn shall lose its privilege character and be a main motion if in any way qualified. To take a recess shall be privileged only when other business is pending. c. A motion to adjourn is not in order: 1. When repeated without intervening business or discussion; 2. When made as an interruption of a member while speaking; 3. While a vote is being taken. d. Only certain motions may be amended as provided in the most current edition of Robert's Rules of Order, revised. A motion to amend shall be undebatable when the question to be amended is undebatable. 7.11 (11) Reconsideration: A motion to reconsider any action of the Council can be made not later than the next succeeding official meeting of the Council. Such a motion can only be made by a member who voted with the prevailing side. It can be seconded by any member. In order to comply with the Texas Open Meetings Act, any Council member who wishes to make such a PAGE 14 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc motion at a meeting succeeding the meeting where the action was taken shall notify the City Manager to place the item for reconsideration on the Council agenda. No question shall be twice reconsidered, except by unanimous consent of the Council, except that action related to any contract may be reconsidered at any time before the final execution thereof. A matter which was not timely reconsidered in the manner provided by this section or was reconsidered but the action originally taken was not changed by the Council cannot be reintroduced to the Council or placed on a Council meeting agenda for a period of six (6) months unless this rule is suspended as provided for in these Rules of Procedure. 7.12 (12) The Previous Question: When the previous question is moved and seconded, it shall be put as follows: "Shall the main question be now put ? ". There shall then be no further amendment or debate; except that nothing herein shall allow the previous question to be called prior to a least one opportunity for each member of the Council to speak on the question before the Council. Any pending amendments shall be put in their order before the main question. If the motion for the previous question is lost, the main question remains before the Council. An affirmative vote of 2/3 of the Council shall be required to move the previous question. To demand the previous question is equivalent in effect to moving "That debate now cease, and the Council shall immediately proceed to vote on the pending motion ". In practice, this is done with the phrase "Call for the question ", or simply saying "Question ". 7.13 (13) Withdrawal of Motions: A motion may be withdrawn, or modified, by its movant without asking permission until the motion has been stated by the Presiding Officer. If the movant modifies his or her motion, the seconding council member may withdraw his or her second. After the question has been stated, the movant shall neither withdraw it nor modify it without the consent of the Council. The subject different from that under consideration shall be admitted under color of amendment. A motion to amend an amendment shall be in order, but one to amend an amendment to an amendment shall not be in order. 7.14 (14) Appropriations of Money: Before formal approval by the Council of motions providing for appropriation of money, information must be presented to the Council showing purpose of the appropriation. In addition, before finally acting on such an appropriation, the Council shall obtain a report from the City Manager as to the availability of funds and his or her recommendations as to the desirability of the appropriation. 7.15 (15) Transfer of Appropriations: At the request of the City Manager, at any time during the fiscal year, the Council may by resolution transfer an unencumbered balance of an appropriation made for the use of one department, division, or purpose; but no transfer shall be made of revenues or earnings of any non -tax supported public utility to any other purpose. 8. (2- 29(h)) CREATION OF COMMITTEES, BOARDS AND COMMISSIONS 8.1 (1) Council Committees: The Council may, by resolution and as the need arises, authorize the appointment of Council committees. Any committee so created shall cease to exist when abolished by resolution of the Council. Council Committees shall comply with the Texas Open Meetings Act. PAGE 15 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc 8.2 (2) Citizen Boards, Commissions, and Committees: The Council may create other Committees, Boards and Commissions to assist in the conduct of the operation of the City government with such duties as the Council may specify not inconsistent with the City Charter or Code. Creation of such Committees, Boards and Commissions and memberships and selection of members shall be by Council resolution if not otherwise specified by the City Charter or Code. Any Committee, Board, or Commission so created shall cease to exist when abolished by a resolution approved by the Council. No Committee so appointed shall have powers other than advisory to the Council or to the City Manager, except as otherwise specified by the Charter or Code. 8.3 (3) Appointments: a. Individual City Council members making nominations for members to citizen boards and commissions will consider interested persons on a citywide basis. b. The City Council will make an effort to be inclusive of all segments of the community in the board and commission appointment process. City Council members will consider ethnicity, gender, socio- economic levels, and other factors to ensure a diverse representation of Denton citizens. c. The City Council will take into consideration an individual's qualifications, willingness to serve, and application information in selecting nominations for membership to each board and commission. d. In an effort to ensure maximum citizen participation, City Council members will continue the general practice of nominating new citizens to replace board members who have served three consecutive terms on the same board per the provisions of Denton Code of Ordinances, Sec. 2- 65. e. Each City Council member will be responsible for making nominations for board and commission places assigned to him or her, which shall correspond to the City Council member's place. Individual City Council members will make nominations to the full City Council for the governing body's approval or disapproval. 8.4 (4) Rules of Procedure: Board, Commission and Committee members shall comply with the provisions of Article H of Chapter 2 of the Code of Ordinances. Each Board, Commission and Committee member shall be provided a copy of these rules of procedure and a copy of the City of Denton Handbook for Boards, Commissions and Committees, which shall govern operational procedures of such Boards, Commissions and Committees. Boards and Commissions shall comply with these Rules as to the preparation of minutes of meetings, and such minutes shall be prepared in accordance with the policies and procedures of the City Secretary. 9. (2 -29 (i)) VOTES REQUIRED Questions on which the voting requirement is varied by the Charter, State Statutes and these rules are listed below: PAGE 16 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc 9.1 (1) Charter and State Statutory Requirements: a. Charter Amendment - Five Votes: Ordinances submitting proposed Charter amendments must be adopted by a two - thirds vote of the Council. (TEx. CONST. art. XI, §3 and Chapter 9, TEx. Loc. Gov'T CODE (Vernon 2014.) For a seven member Council, this means five members must vote affirmatively. b. Leaving Taxes - Five Votes: Ordinances providing for the assessment and collection of certain taxes require the approval of two - thirds of the members of the Council (TEx. Tax CODE §302.101 (Vernon 2014)). c. Changing Paving Assessment Plans - Five Votes: Changes in plans for paving assessment require a two- thirds vote of the Council (TEx. TRANSP. CODE §313.053(e) (Vernon 2014)). d. Changes in Zoning Ordinance or Zoning Classifications: In cases of a written protest of a change in a zoning regulation or zoning classification by the owners of twenty (20 %) percent or more either of the area of the lots included in such proposed change, or of the lots immediately adjoining the same and extending two hundred feet (200') therefrom, such amendment shall not become effective except by the favorable vote of three - fourths (3/4) of all members of the City Council; further, three - fourths (3/4) of all the members of the City Council is required to override the decision of the Planning and Zoning Commission that a zoning change be denied (TEX. Loc. Gov'T CODE § 211.066 Tex. (Vernon 2014) and Section 35.3.4.C.(4) Denton City Code (Development Code)). ( "All" members of the City Council is construed to mean all who are qualified to vote on a matter, and any legal disqualification of a member could change the requisite number of votes required for passage. City ofAlamo Heights v. Gerety et al., 264 S.W. 2d 778 (Ct. App. — San Antonio (1954)). e. Amendment of Tax Abatement Policy: The guidelines and criteria adopted as the City's Tax Abatement Policy may be amended or repealed by a vote of three - fourths (3/4) of all members of the City Council (TEx. Tax CODE §312.002(c) (Vernon 2014)). 10. (2 -290)) SEVERABILITY CLAUSE If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 2. That Ordinance No. 2011 -038 is repealed. SECTION 3. That this Ordinance shall become effective immediately upon its passage and approval. PAGE 17 S:Tegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc PASSED AND APPROVED this the day of 12015. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY CHRIS WATTS, MAYOR PAGE 18 S: \Legal \Our Documents \0rdinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc ORDINANCE NO. AN ORDINANCE REPEALING ORDINANCE NO. 2011 -038 AND ENACTING A NEW SECTION 2 -29 OF THE CITY OF DENTON CODE OF ORDINANCES RELATING TO RULES OF PROCEDURE FOR THE CITY COUNCIL OF THE CITY OF DENTON; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton desires to conduct the City Council meetings of the City of Denton in the most efficient and time effective manner; and WHEREAS, the City Council also desires to allow open dialogue by citizens of the community regarding the business of city government; and WHEREAS the City Council desires to streamline the City Council meetings, and facilitate citizen's access to make comments to their local governing body; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That Section 2 -29 of the City Code, known as the Denton City Council Rules of Procedure, is hereby enacted to read as follows: 1. (2- 29(a)) AUTHORITY 1.1(1) Charter: Pursuant to the provisions of Section 2.07 of the Charter of the City of Denton, Texas, the City Council hereby enacts these rules of procedure for all meetings of the City Council of the City of Denton, Texas. During any meeting, a reasonable opportunity shall be given for citizens to be heard under these rules. These Rules of Procedure are enacted as guidelines to be followed by all persons in the Council Chamber including the city administrative staff, news media, and visitors. 2. (2- 29(b)) GENERAL RULES 2.1 (1) Meetings to be Public: All official meetings of the Council and Council committees and subcommittees, except closed meetings permitted by the provisions of the Texas Open Meetings Act, Chapter 551, TEX. Gov'T CODE (Vernon 2014), as amended, shall be open to the public. 2.2 (2) Quoru m: Four members of the Council shall constitute a quorum for the transaction of business. (Charter, Section 2.06) 2.3 (3) Compelling Attendance: No member shall be excused from attendance at a Council meeting except for good and valid reasons. It will be the duty of the Council member to notify the City Secretary prior to the meeting at which he or she is going to be absent. The City Secretary will record each Council member as being present or absent as a part of the minutes prepared for each Council meeting. S:ALegal \Our DOCUnients \0rdinances \15 \CC Rules of Procedures 20154 for July 28, 2015.doe 2.4 (4) Misconduct: The Council may punish its own members for misconduct consistent with any Ethics Policy adopted by the Council. 2.5 (5) Minutes of Meetings: An account of all proceedings of the Council shall be kept by the City Secretary and shall be entered in a book constituting the official record of the Council. A certified agenda shall be prepared and shall be approved by the Mayor for all closed meetings for which a certified agenda is required to be kept in accordance with the Texas Open Meetings Act. 2.6 (6) Questions to Contain One Subject: All questions submitted for a vote shall contain one subject, except the City Council may approve all items which are on the consent agenda in one motion, regardless of how many subjects are contained in the consent agenda, so long as all items have been properly posted in accordance with the Texas Open Meetings Act and have not been removed from the consent agenda by a Council member. If two or more points are involved, any member may require a division, if the question reasonably admits of a division. 2.7 (7) Right to Floor: Any member desiring to speak shall be recognized by the Chairperson, and shall confine his or her remarks to the subject under consideration or to be considered. No member shall be allowed to speak more than once on any one subject until every member wishing to speak shall have spoken. 2.8 (8) City Manager: The City Manager, or Acting City Manager, shall attend all meetings of the Council unless excused. He or she may make recommendations to the Council and shall have the right to take part in all discussions of the Council, but shall have no vote. (Charter, Section 5.03 (d))• 2.9 (9) City Attorney: The City Attorney, or Acting City Attorney, shall be available upon request for all meetings of the Council unless excused and shall, upon request, give an opinion, either written or oral, on questions of law. The City Attorney shall act as the Council's parliamentarian. 2.10 (10) City Secretary: The City Secretary, or Acting City Secretary, shall attend all meetings of the Council unless excused, and shall keep the official minutes and perform such other duties as may be requested by the Council. 2.11 (11) Officers and Employees: Any officer or employee of the City, when requested by the City Manager, shall attend any meeting of the Council. If requested to do so by the City Manager, such employee may present information relating to matters before the Council. 2.12 (12) Rules of Order: These rules govern the proceedings of the Council in all cases, except that where these Arles are silent, the most recent Edition of Robert's Rules of Order shall govern. 2.13 (13) Suspension of Rules: Any provision of these rules not governed by the City Charter or other City Code provisions may be temporarily suspended by the affirmative vote of four members of the Council. The vote on any such suspension shall be taken by yeas or nays and PAGE 2 S: \Legal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doe entered into the minutes of the Council. 2.14 (14) Amendment of Rules: These rules may be amended, or new rules adopted by the affirmative vote of four members of the Council, provided that the proposed amendments or new rules shall have been introduced before the City Council at a prior Council meeting. 3. (2- 29(c)) CODE OF CONDUCT 3.1 (1) Council members: a. During Council meetings, Council members shall preserve order and decorum and shall neither by conversation or otherwise delay or interrupt the proceedings nor refuse to observe the rules of the Council. b. A Council member, once recognized, shall not be interrupted while speaking unless called to order by the Mayor or presiding officer, unless a point of order is raised by another member or the parliamentarian, or unless the speaker chooses to yield to questions from another member. If a Council member is called to order while he or she is speaking, he or she shall cease speaking immediately until the question of order is determined. If ruled to be in order, he or she shall be permitted to proceed. If ruled not to be in order, he or she shall remain silent or shall alter his or her remarks so as to comply with rules of the Council. 3.2 (2) Administrative Staff: a. Members of the Administrative staff and employees of the City shall observe the same rules of procedure and decorum applicable to members of the Council, and shall have no voice unless and until recognized by the Chair. b. While the presiding officer shall have the authority to preserve decorum in meetings as far as staff members and City employees are concerned, the City Manager also shall be responsible for the orderly conduct and decorum of all City employees under his or her direction and control. c. The City Manager shall take such disciplinary action as may be necessary to insure that such decorum is preserved at all times by City employees in Council meetings. d. All remarks and questions addressed to the Council shall be addressed to the Council as a whole and not to any individual member thereof. e. No staff member, other than a staff member having the floor, shall enter into any discussion either directly or indirectly without permission of the presiding officer. 3.3 (3) Citizens: a. Citizens and other visitors are welcome to attend Council, and will be admitted to the City Council Chamber Council is meeting, up to the fire safety capacity of the room. PAGE 3 all public meetings of the City or other room in which the City S: \Legal \Our Documents \0rdinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doe b. All meeting attendees shall conduct themselves with propriety and decorum. Conversations between or among audience members should be conducted outside the meeting room. Attendees will refrain from excessively loud private conversations while the Council is in session. c. Unauthorized remarks from the audience, stamping of the feet, applauding, whistles, yells, and similar demonstrations shall not be permitted. d. Placards, banners, signs, pamphlets, flyers, or political materials of any type will not be permitted in the City Council Chamber or in any other room in which the City Council is meeting. Exhibits, displays, and visual aids used in connection with presentations to the City Council, however, are permitted. e. Audience members may not place their feet on any chairs in the City Council Chamber or other room in which the City Council is meeting. f. Only City Council members and City staff may step onto the dais. g. All people wishing to address the City Council shall first be recognized by the presiding officer and shall limit their remarks to the matter under discussion. h. All remarks and questions addressed to the City Council shall be addressed to the City Council as a whole and not to any individual members. i. Any person addressing the City Council in the City Council Chamber shall do so from the lectern unless physically unable to do so. People addressing the City Council shall not be permitted to approach the dais. If they wish to hand out papers or other materials to the City Council, they should express that desire to the presiding officer, and the City Manager shall direct a staff member to hand out the materials. j. When the time has expired for a presentation to the City Council, the presiding officer shall direct the person speaking to cease. A second request from the presiding officer to cease speaking shall be cause of the removal of the speaker if that person continues to speak. k. Equipment, apparatus, or paraphernalia such as camera tripods, easels, or wheelchairs shall not obstruct, block, or otherwise be located in the doorway, entranceway, or walkways of the City Council Chambers or of any other room in which the City Council may choose to meet. Representatives of the electronic media may set up cameras and other equipment only in the back of the room. It is permissible for television camera operators to film for short periods of time (several minutes) from the entranceway to the City Council Chambers. Any radio station, which broadcasts the regular City Council meetings live, may hook their equipment up at the front of the room as long as it remains out of sight and out of the way. 1. There will be a uniformed City of Denton police officer present at all regular meetings of the City Council. This police officer shall act in the capacity of a security officer /sergeant -at- PAGE 4 S: \Legal \Our Documents \Ordinances \15 \CC Rules of Procedures 20154 for July 28, 2015.doe arms, and shall enforce the meeting rules and act upon the direction of the presiding officer. m. Any person making personal, impertinent, profane, or slanderous remarks, or who becomes boisterous while addressing the City Council or who otherwise violates any of the above - mentioned rules while attending a City Council meeting shall be removed from the room at the direction of the presiding officer, and the person shall be barred from further audience before the City Council during that session of the City Council. If the presiding officer fails to act, any member of the City Council may move to require the offending person's removal, and the affirmative vote of a majority of the City Council shall require the presiding officer to act. The sergeant -at -arms, if so directed by the presiding officer or an affirmative vote of the majority of the City Council, shall remove the offending person from the meeting. 3.4 (4) Enforcement: The City Manager, in the absence of a designated law enforcement officer, shall act as Sergeant at Arms for the council, and shall furnish whatever assistance is needed to enforce the rules of decorum herein established. 3.5 (5) Seating Arrangement: The City Secretary, City Manager and City Attorney shall occupy the respective seats in the Council Chamber assigned to them by the Mayor, but any two or more members of the Council may exchange seats. 3.6.1 (6) Videoconfer�. City Council members may elect to participate in a City Council meeting by videoconference in the event the member is traveling or unable to attend a meeting due to illness. a. Procedures for meeting by videoconference if a quorum will be in one physical location: The council meeting notice shall specify where the quorum of the governmental body will be physically present, and the intent to have a quorum present at that location. The video and audio feed of a remote councilmember or employee shall be broadcast live at the meeting. Each portion of the meeting held by videoconference call that is required to be open to the public shall be visible and audible to the public at the location where the quorum is present. The location at which the quorum is present, and each remote location from which a member of the governmental body participates, shall have two - way audio and video communication with each other location during the entire meeting. Each participant's face in the videoconference call, while speaking, shall be clearly visible and audible to each other participant and, during the open portion of the meeting, to the members of the public in attendance at the location where a quorum is present, and at any other location of the meeting that is open to the public. The audio and video signals perceptible by members of the public at each location of the meeting shall meet or exceed minimum standards established by Texas Department of Information Resources (DIR) rules. The audio and video signals perceptible by members of the public at the location where the quorum is present and, any other location open to the public, shall be of sufficient quality so that members of the public at each location can observe the demeanor and hear the voice of each participant in the open portion of the meeting. If a problem occurs that causes a meeting to no longer be visible and audible to the public at the location where a quorum is present, the meeting shall be recessed until the problem is resolved, and if the problem is not resolved in six hours or less, the meeting shall be PAGE 5 S: \Legal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc location: adjourned. The City shall make at least an audio recording of the meeting, and the recording shall be made available to the public. Procedures for meeting by videoconference if a quorum will not be in one physical The City shall make available to the public at least one suitable physical space in the City that is equipped with videoconference equipment that provides an audio and video display, as well as a camera and microphone, by which a member of the public can provide testimony or otherwise participate in the meeting. The member of the governmental body presiding over the meeting shall be present at this site, and the location must be open to the public. The meeting notice shall specify the physical space provided, and shall also specify the intent to have the presiding officer present at the location. Any member of the public present at this location shall be provided the opportunity to participate in the meeting by means of a videoconference call in the same manner as a person who is physically present at a meeting of the governmental body that is not conducted by videoconference. Each portion of the meeting held by videoconference call that is required to be open to the public shall be visible and audible to the public. The video and audio feed of a remote councilmember or employee shall be broadcast live at the meeting. The site provided in the City and each remote location from which a member participates, shall have two -way audio and video communication with each member who is participating by videoconference during the entire meeting. Each participant's face in the videoconference, while speaking, must be clearly visible and audible to each other participant and, during the open portion of the meeting, to the members of the public in attendance at the meeting location in the City, and at any other location of the meeting that may be open to the public. The audio and video signals perceptible by members of the public at each location of the meeting shall meet or exceed minimum standards established by DIR rules. The audio and video signals perceptible by members of the public at each location of the meeting that is open to the public, and each remote location, must be of sufficient quality so that members of the public at each location can observe the demeanor and hear the voice of each participant in the open portion of the meeting. If a problem occurs that causes the meeting to no longer be visible and audible to the public at the meeting site in the City, the meeting must be recessed until the problem is resolved, and if the problem is not resolved in six hours or less, the meeting shall be adjourned. The City shall make at least an audio recording of the meeting, and the recording shall be made available to the public. c. Council Members wishing to participate in a meeting by videoconference shall provide notice to the City Manager and the Agenda Committee not less than seven (7) days prior to the meeting. 4. (2- 29(d)) TYPES OF MEETINGS 4.1 (1) Regular Meetings: The Council shall meet on the first and third Tuesday of each month, at such time as may be set by the City Council, unless the meeting is postponed or cancelled for valid reasons. All regular meetings of the Council will be held in City Hall at 215 East PAGE 6 SALegal \Our Documents \0rdinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc McKinney Street, Denton, Texas or at such other location as the City Council may, from time to time by proper posting under the Open Meetings Act and so long as the location is open to the public, designate. 4.2 (2) Special Meetings: Special meetings may be called by the Mayor, the City Manager, or by any three members of the Council. The City Secretary shall post notice thereof as provided by the Texas Open Meetings Act. The Mayor, City Manager, or three of the council members may designate a location for the special meeting other than City Hall, as long as the location is open to the public. 4.3 (3) Workshop Meetings: Workshop meetings (also referred to as "work sessions ") may be held on the first and third Tuesday of each month at such time as may be set by the City Council, or on such other day as the City Council may designate and at such time as may be set by the City Council, to discuss near to mid or long range issues and to answer City Council questions concerning all agenda items. Workshops or work sessions may be called using the same procedure required for special meetings as provided for in Section 4.2(2) above. The purpose of the workshop meeting is to discuss or explore matters of interest to the City, to meet with City boards, commissions, or committee members, City staff or officers of civic organizations, governing bodies or individuals specifically invited to the session by the Mayor, Council or City Manager. These meetings are informational and normally no final action shall be taken unless the posted agenda indicates otherwise. However, the City Council may, by consensus, provide general direction to staff with regard to matters of interest or concern, understanding such matters ultimately may require a formal vote of the Council for implementation. 4.4(4) Luncheon Meetings: Luncheon workshop or work session meetings may be held on the first Monday of each month at such time as may be set by the City Council, or on such other day as the City Council may designate. Such meetings may be called using the same procedure required for special meetings as provided for in Section 4.2(2) above. The purpose of the luncheon meeting is to discuss or explore matters of interest to the City, to meet with City boards, commissions, or committee members, City staff or officers of civic organizations, governing bodies or individuals specifically invited to the session by the Mayor, Council or City Manager. These meetings are informational and normally no final action shall be taken unless the posted agenda indicates otherwise. However, the City Council may, by consensus, provide general direction to staff with regard to matters of interest or concern, understanding such matters ultimately may require a formal vote of the Council for implementation. 4.5 (5) Emergency Meetings: In case of emergency or urgent public necessity, which shall be expressed in the notice of the meeting, an emergency meeting may be called by the Mayor, the City Manager or by three members of the Council, and it shall be sufficient if the notice is posted two hours before the meeting is convened. 4.6 (6) Closed Meetings: The Council may meet in a closed meeting pursuant to the requirements of the Texas Open Meetings Act. 4.7 (7) Recessed Meetings: Any meeting of the Council may be recessed to a later time, provided that no recess shall be for a longer period than until the next business day. PAGE 7 SALegal \Our Documents \0rdinances \f5 \CC Rules of Procedures 20154 for July 28, 2015.doc 4.8 (8) Notice of Meetings: The agenda for all meetings, including Council Committee or Subcommittee meetings, shall be posted by the City Secretary on the City's official bulletin board and notice of all meetings shall be given by the City Secretary pursuant to the requirements of the Texas Open Meetings Act. 5. (2- 29(e)) PRESIDING OFFICER AND DUTIES 5.1 (1) Presiding Officer: The Mayor, or in the absence of the Mayor, the Mayor Pro -Tem, shall preside as chairman, or presiding officer at all meetings of the Council. In the absence of the Mayor and the Mayor Pro -Tem, the Council shall elect a temporary presiding officer. (Charter, Section 2.03). 5.2 (2) Call to Order: The meetings of the Council shall be called to order by the Mayor, or in his or her absence, by the Mayor Pro -Tem. In the absence of both the Mayor and the Mayor Pro - Tem, the meeting shall be called to order by the City Secretary, and a temporary presiding officer shall be elected as provided above. 5.3 (3) Preservation of Order: The presiding officer shall preserve order and decorum, and confine members in debate to the question under discussion. The presiding officer shall call upon the Sergeant -at -Arms as necessary to enforce compliance with the rules contained herein. 5.4 (4) Points of Order: The presiding officer shall determine all points of order, subject to the right of any member to appeal to the Council. If any appeal is taken, the question shall be, "Shall the decision of the presiding officer be sustained ?" If a majority of the members present vote "No," the ruling of the chair is overruled; otherwise, it is sustained. 5.5 (5) Questions to be Stated: The presiding officer shall state all questions submitted for a vote and announce the result. A roll call vote shall be taken upon the request of any member, and upon the passage of all ordinances and resolutions. 5.6 (6) Substitution for Presiding Officer: The presiding officer may call any other member to take his or her place in the chair, such substitution not to continue beyond adjournment. 5.7 (7) Call for Recess: The presiding officer may call for a recess of up to fifteen (15) minutes at regular intervals of approximately one hour at appropriate points in the meeting agenda, or if requested by any two members. 6. 2 -29 (f)(4)(5) ORDER OF BUSINESS 6.1 (1) Agenda: The order of business of each meeting shall be as contained in the agenda prepared by the City Manager, which shall be reviewed and approved by an Agenda Committee composed of the Mayor, the Mayor Pro Tem, and the City Manager. When items are removed from the consent agenda and placed on the regular agenda by members of the Council, the removed items shall be taken up in the order of removal right after the consent agenda. Placement of items on the agenda shall be governed by this ordinance; provided that if a Council member has an "emergency" PAGE 8 SALegal \Our Documents \0rdinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc item that the Council member believes should be placed on the next regular or special meeting agenda, the placement must be approved by two members of the Agenda Committee or at the direction of a majority of the Council. Conduct of business at special meetings will likewise be governed by an agenda and these Rules of Procedure. 6.2 (2) Pledge of Alle ig ance: Each agenda shall provide an item for the recital of the "Pledge of Allegiance" at the regularly scheduled city council meetings. This item shall begin with the recital of the pledge of allegiance for the United States flag and shall follow with a recital of the pledge of allegiance for the Texas state flag in accordance with Section 3 100. 101 of the TEX. Gov'T CODE. 6.3 (3) Presentations by Members of Council or City Manager: The agenda shall provide a time when the Mayor or any Council member may bring before the Council any business that he or she feels should be deliberated upon by the Council at a future Council meeting. These matters need not be specifically listed on the agenda, but discussion and formal action on such matters shall be deferred until a subsequent Council meeting. Any member may suggest an item for discussion at a future work session. The City Manager or City staff shall only respond preliminarily on this item at the work session. If the City Council believes the item requires a more detailed review, the Council will give the City Manager or City Staff direction to place the item on a future regular meeting agenda and advise staff as to the background materials to be desired at such meeting. The City Council may receive from the City Manager or City staff or a member of the City Council reports about items of community interest including expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen, except that a discussion regarding a change in the status of a person's public office or public employment is not an honorary or salutary recognition for purposes of this subdivision; 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; and announcements involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda so long as authorized by the Texas Open Meetings Act. 6.4 (4) Presentations from Members of the Public: a. Reports from Members of the Public: Reports from members of the public shall be received through either of two methods: 1) prior registration or 2) open microphone. 1) Prior Registration. Any person who wishes to place a subject on the Council agenda at regular City Council meetings shall advise the City Manager's office of that fact and the specified subject matter which he or she desires to place on the agenda no later than 5:00 p.m. Wednesday prior to the Council meeting at which he or she wishes the designated subject to be considered. Such reports shall be heard either at the beginning of the regular meeting of the City Council, or later on the council's agenda at a place determined by the Agenda Committee in light of the length of the agenda and the anticipation of time needed for the agenda items under consideration. PAGE 9 SALegal\ our Documents \0rdinances \15 \CC Rules of Procedures 20154 for July 28, 2015.doe Placement of citizen reports at the beginning of the agenda shall be determined by a rule of rotation as follows: Every member of the public will be given an opportunity for placement of their report at the beginning of the regular city council meeting once every six (6) months; should a citizen desire to present reports more frequently than once every 6 months, such reports will be heard by the council at the time determined by the Agenda Committee. Speakers will be assigned to the first part of the meeting on a first come, first served basis with a limit of three (3) speakers assigned to this early forum. It is the intent of the rule of rotation to better manage the time of the City Council members, the city staff, and to fashion some more available and convenient time for all members of the public to address the City Council on a non - discriminatory and rotating basis. 2) Open Microphone: At the beginning of the regular meeting of the City Council, any person who has not registered to speak as above described may make comments through the open microphone procedure. At the time the City Council calls the Open Microphone comment period, a person may present himself or herself and make public comments regarding public business. This Open Microphone procedure is limited to four (4) speakers per meeting of the City Council. No person may fill out a "request to speak" form in order to speak or comment on another person's report, which is given at the same Council meeting. An announcement may be made, prior to the time for reports from members of the public on the agenda, summarizing the main portions of the Rules and the "Code of Conduct" as they may apply to members of the public speaking to the Council. Any speaker providing a report shall speak for no longer than four (4) minutes on all items that he or she may bring before the Council at each meeting. b. Work Session or Workshop Items: As it concerns the workshop agenda, citizens or other interested persons may not participate in the session unless invited to do so by the Mayor. If the Mayor invites citizens to participate in a work session, their participation will cease at the point the Mayor closes the session to public input to allow the Council to give City staff direction as to needed information for the possible future meeting on the item. Citizens should be advised of the nature of the work session, but that their input on these items is premature until such item is placed upon a City Council agenda for final action. The purpose of this procedure is to allow the citizens attending the regular meeting the opportunity of hearing the views of their fellow citizens in a more formal setting. Any citizen may supply the City Council a written statement or report regarding the citizen's opinion on a matter being discussed in a work session. c. Speaking on Consent and Regular Agenda Items: Any person who wishes to address the Council regarding a non - public hearing regular or consent agenda item that is on the Council's agenda, shall complete a "request to speak" form asking to speak regarding the item and shall return it to the City Secretary. On consent items, the request to speak card shall be submitted prior to the citizen comment on consent agenda items at the beginning of the City Council meeting. On regular agenda items, the request to speak card shall be submitted prior to the time the City Council considers the item. The Mayor will call upon the person who desires to speak. 1) Consent Agenda Items: When consent agenda items are posted on an agenda, PAGE 10 SALegal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doe citizens or other interested persons will be allowed to make citizen comment immediately after the opening of the City Council meeting and prior to workshop or work session items on the agenda by filling out a "request to speak" card (aka a "blue card ") asking to speak on any or all consent agenda items and returning the form to the City Secretary. In the event a person is unable to attend the City Council workshop or work session, he or she may contact the City Secretary prior to the opening of the meeting and request that a consent agenda item be pulled from the consent agenda in order to allow comment as an individual item at the regular meeting of the City Council. The City Secretary shall make any such request known to the City Council. Consent agenda items are generally routine nature, so comment at this time facilitates the regular council meeting where no citizen comment on consent agenda items will be permitted, unless the item is removed from the consent agenda by a member of the Council to be considered as an individual item during the regular meeting. Speakers will be allowed three (3) minutes per speaker and may comment on any or all consent agenda items so long as any speaker's time does not exceed a total of three (3) minutes. 2) Regular Agenda Items: During the regular session of the City Council meeting, any citizen or interested person may comment on an item posted on the agenda for final action. Any person who wishes to address the Council regarding a non - public hearing item that is on the Council's agenda, shall complete a "request to speak" form asking to speak regarding the item and shall return it to the City Secretary before the Council considers the item. This procedure applies to speakers desiring to speak to items for individual consideration on the agenda during the regular meeting of the City Council. The Mayor will call upon the person to speak. Speakers will be allowed three (3) minutes per speaker as to any particular agenda item being considered by the City Council. d. Public Hearings: 1) Any person who wishes to address the Council at a public hearing is encouraged to complete a "request to speak" form and return it to the City Secretary before the applicable hearing. The Mayor will call upon the person to speak. Speakers will be allowed four (4) minutes per speaker as to any public hearing item. However, if numerous speakers desire to comment on an item, Council may limit speakers to three (3) minutes per speaker. Applicants and their agents on public hearing items shall be allowed to speak for no longer than ten (10) minutes per speaker with a total of twenty (20) minutes for all speakers representing the applicant. 2) To facilitate the public hearing process in zoning cases the following procedure will be used: a) The Mayor reads the zoning case caption, and then opens the public hearing. b) The City Manager introduces the City Staff for presentation. c) City Staff presents facts relevant to the matter. PAGE 11 S:ALegal \Our Documents \Ordinances \15 \CC Rules of Procedures 20154 for Jule 28, 2015.doc d) The applicant presents his or her case, with potential questions of the applicant from the City Council. e) The Council receives input from the public, with potential questions of speakers from the City Council. f) The applicant will be given an opportunity to make rebuttal comments. g) The City Staff and /or the applicant will answer any questions of the City Council. h) Upon conclusion of these questions and answers, the Mayor will continue or close the public hearing. e. Groups or Organizations: Any group or organization comprised of four (4) or more members present in the City Council Chambers who wishes to address the Council at a public hearing or on a non - public hearing agenda item shall designate a representative to address the City Council and shall limit their remarks to ten (10) minutes or less. The group or organization shall turn in a written designation to the City Secretary, on cards prepared by the City Secretary of a different color from cards submitted by individual speakers, prior to the commencement of the meeting identifying the representative who will address the City Council on behalf of the group or organization. At the time the representative is recognized by the Mayor to speak, the group or organization will be asked to stand to be recognized prior to the receipt of comments by the representative. £ Discretionary Time: At the discretion of the presiding officer or a majority of the City Council, any speaker may be granted an extension of time to speak. g. AudioNisual Aids: Any citizen desiring to use audio /visual aids during presentations to Council shall submit such presentation to the City Secretary 24 hours prior to the meeting where the presentation will occur. 6.5 (5) Presentation of Proclamations: The agenda may provide a time for the presentation of proclamations. The Mayor or presiding officer may deliver and present proclamations upon the request of citizens. Proclamations may encompass any activity or theme except that proclamations with a theme religious or partisan in nature shall not be presented. Moreover, proclamations shall not be used for any commercial or advertising purpose. 7. (2- 29(g)) CONSIDERATION OF ORDINANCES, RESOLUTIONS, AND MOTIONS 7.1 (1) Printed or Typewritten Form: All ordinances and resolutions shall be presented to the Council in printed, typewritten or electronic form. The Council may, by proper motion, amend any ordinance or resolution presented to it at the meeting at which it is presented or direct that the amended ordinance be placed on the next or any future Council Agenda for adoption. 7.2 (2) City Attorney to Approve: All ordinances, resolutions, and contracts and PAGE 12 SALegal \Our Documents \0rdinances \15 \CC Rules of Procedures 20154 for July 28, 2015.doc amendments thereto, shall be approved as to form and legality by the City Attorney, or he or she shall file a written opinion on the legality of such ordinance, resolution or contract prior to submission to the Council. (Charter, Section 6.02). 7.3 (3) Distribution of Ordinances and Resolutions: The City Manager shall prepare copies of all proposed ordinances and resolutions for distribution to all members of the Council at the meeting at which the ordinance or resolution is introduced, or at such earlier time as is expedient. 7.4 (4) Recording of Votes: The yeas and nays shall be taken upon the passage of all ordinances and resolutions and the vote of each member shall be recorded in the minutes. (Charter, Section 2.06 (b)). 7.5 (5) Majority Vote Required: An affirmative vote of four (4) members is necessary to repeal any ordinance or take any official action in the name of the City except as otherwise provided in the Charter, by the laws of the State of Texas, or these Rules. (Charter, Section 2.06). 7.5.1(a) Tie -Vote: Matters voted on by the City Council which end in a tie -vote shall automatically be placed on each subsequent Council meeting agenda until a full Council is present. 7.6 (6) Demand for Roll Call: Upon demand of any member, the roll shall be called for yeas and nays upon any question before the Council, with the exception of those circumstances set forth in Section 7.12, The Previous Question. It shall not be in order for members to explain their vote during the roll call. 7.7 (7) Personal Privilege: The right of a member to address the Council on a question of personal privilege shall be limited to cases in which his or her integrity, character, or motives are assailed, questioned, or impugned. 7.8 (8) Dissents and Protests: Any member shall have the right to express dissent from or protest against any ordinance or resolution of the Council and have the reason therefor entered upon the minutes. Such dissent or protest may be filed in writing, and presented to the Council not later than the next regular meeting following the date of passage of the ordinance or resolution objected to. 7.9 (9) Voting Required: No member shall be excused from voting except for lack of information and except on matters involving the consideration of his or her own official conduct, or where his or her personal interests are involved in accordance with Chapter 171, TEX. Loc. Gov'T CODE (Vernon 2014), and in these instances he or she shall abstain. Any member prohibited from voting by personal interest shall announce this at the commencement of consideration of the matter and shall not enter into discussion or debate on any such matter, shall leave the meeting room, and shall file an affidavit of recusal. The member having briefly stated the reason for his or her request, the excuse from voting shall be made without debate. PAGE 13 SALegal \0ur Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc 7.10 (10) Order of Precedence of Motions: a. The following motions shall have priority in the order indicated: 1. Adjourn (when unqualified) and is not debatable and may not be amended; 2. Take a recess (when privileged); 3. Raise a question of privilege; 4. Lay on the table; 5. Previous question (2/3 vote required); 6. Limit or extend limits of debate (2/3 vote required); 7. Postpone to a certain time; 8. Commit or refer; 9. Amend; 10. Postpone indefinitely; 11. Main Motion. b. The first two motions are not always privileged. To adjourn shall lose its privilege character and be a main motion if in any way qualified. To take a recess shall be privileged only when other business is pending. c. A motion to adjourn is not in order: 1. When repeated without intervening business or discussion; 2. When made as an interruption of a member while speaking; 3. While a vote is being taken. d. Only certain motions may be amended as provided in the most current edition of Robert's Rules of Order, revised. A motion to amend shall be undebatable when the question to be amended is undebatable. 7.11 (11) Reconsideration: A motion to reconsider any action of the Council can be made not later than the next succeeding official meeting of the Council. Such a motion can only be made by a member who voted with the prevailing side. It can be seconded by any member. In order to comply with the Texas Open Meetings Act, any Council member who wishes to make such a PAGE 14 SALegal \Our Documents \0rdinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc motion at a meeting succeeding the meeting where the action was taken shall notify the City Manager to place the item for reconsideration on the Council agenda. No question shall be twice reconsidered, except by unanimous consent of the Council, except that action related to any contract may be reconsidered at any time before the final execution thereof. A matter which was not timely reconsidered in the manner provided by this section or was reconsidered but the action originally taken was not changed by the Council cannot be reintroduced to the Council or placed on a Council meeting agenda for a period of six (6) months unless this rule is suspended as provided for in these Rules of Procedure. 7.12 (12) The Previous Question: When the previous question is moved and seconded, it shall be put as follows: "Shall the main question be now put ? ". There shall then be no further amendment or debate; except that nothing herein shall allow the previous question to be called prior to a least one opportunity for each member of the Council to speak on the question before the Council. Any pending amendments shall be put in their order before the main question. If the motion for the previous question is lost, the main question remains before the Council. An affirmative vote of 2/3 of the Council shall be required to move the previous question. To demand the previous question is equivalent in effect to moving That debate now cease, and the Council shall immediately proceed to vote on the pending motion ". In practice, this is done with the phrase "Call for the question ", or simply saying "Question ". 7.13 (13) Withdrawal of Motions: A motion may be withdrawn, or modified, by its movant without asking permission until the motion has been stated by the Presiding Officer. If the movant modifies his or her motion, the seconding council member may withdraw his or her second. After the question has been stated, the movant shall neither withdraw it nor modify it without the consent of the Council. The subject different from that under consideration shall be admitted under color of amendment. A motion to amend an amendment shall be in order, but one to amend an amendment to an amendment shall not be in order. 7.14 (14) Appropriations of Money: Before formal approval by the Council of motions providing for appropriation of money, information must be presented to the Council showing purpose of the appropriation. In addition, before finally acting on such an appropriation, the Council shall obtain a report from the City Manager as to the availability of funds and his or her recommendations as to the desirability of the appropriation. 7.15 (15) Transfer of Appropriations: At the request of the City Manager, at any time during the fiscal year, the Council may by resolution transfer an unencumbered balance of an appropriation made for the use of one department, division, or purpose; but no transfer shall be made of revenues or earnings of any non -tax supported public utility to any other purpose. 8. (2- 29(h)) CREATION OF COMMITTEES, BOARDS AND COMMISSIONS 8.1 (1) Council Committees: The Council may, by resolution and as the need arises, authorize the appointment of Council committees. Any committee so created shall cease to exist when abolished by resolution of the Council. Council Committees shall comply with the Texas Open Meetings Act. PAGE 15 S: \Legal \Our Documents \Ordinances \15 \CC Rules of Procedures 2015 -4 for July 28, 2015.doc 8.2 (2) Citizen Boards Commissions and Committees: The Council may create other Committees, Boards and Commissions to assist in the conduct of the operation of the City government with such duties as the Council may specify not inconsistent with the City Charter or Code. Creation of such Committees, Boards and Commissions and memberships and selection of members shall be by Council resolution if not otherwise specified by the City Charter or Code. Any Committee, Board, or Commission so created shall cease to exist when abolished by a resolution approved by the Council. No Committee so appointed shall have powers other than advisory to the Council or to the City Manager, except as otherwise specified by the Charter or Code. 8.3 (3) Appointments: a. Individual City Council members making nominations for members to citizen boards and commissions will consider interested persons on a citywide basis. b. The City Council will make an effort to be inclusive of all segments of the community in the board and commission appointment process. City Council members will consider ethnicity, gender, socio- economic levels, and other factors to ensure a diverse representation of Denton citizens. c. The City Council will take into consideration an individual's qualifications, willingness to serve, and application information in selecting nominations for membership to each board and commission. d. In an effort to ensure maximum citizen participation, City Council members will continue the general practice of nominating new citizens to replace board members who have served three consecutive terms on the same board per the provisions of Denton Code of Ordinances, Sec. 2- 65. e. Each City Council member will be responsible for making nominations for board and commission places assigned to him or her, which shall correspond to the City Council member's place. Individual City Council members will make nominations to the full City Council for the governing body's approval or disapproval. 8.4 (4) Rules of Procedure: Board, Commission and Committee members shall comply with the provisions of Article II of Chapter 2 of the Code of Ordinances. Each Board, Commission and Committee member shall be provided a copy of these rules of procedure and a copy of the City of Denton Handbook for Boards, Commissions and Committees, which shall govern operational procedures of such Boards, Commissions and Committees. Boards and Commissions shall comply with these Rules as to the preparation of minutes of meetings, and such minutes shall be prepared in accordance with the policies and procedures of the City Secretary. 9. (2 -29 (i)) VOTES REQUIRED Questions on which the voting requirement is varied by the Charter, State Statutes and these rules are listed below: PAGE 16 SALegal \Our Documents \0rdinances \15 \CC Rules of Procedures 20154 for July 28, 2015.doc 9.1 (1) Charter and State Statutory Requirements: a. Charter Amendment - Five Votes: Ordinances submitting proposed Charter amendments must be adopted by a two - thirds vote of the Council. (TEX. CONST. art. XI, §3 and Chapter 9, TEX. Loc. Gov'T CODE (Vernon 2014.) For a seven member Council, this means five members must vote affirmatively. b. Levying Taxes - Five Votes: Ordinances providing for the assessment and collection of certain taxes require the approval of two - thirds of the members of the Council (TEX. TAX CODE §302.101 (Vernon 2014)). c. Changing Paving Assessment Plans - Five Votes: Changes in plans for paving assessment require a two - thirds vote of the Council (TEX. TRANSP. CODE §313.053(e) (Vernon 2014)). d. Changes in Zoning Ordinance or Zoning Classifications: In cases of a written protest of a change in a zoning regulation or zoning classification by the owners of twenty (20 %) percent or more either of the area of the lots included in such proposed change, or of the lots immediately adjoining the same and extending two hundred feet (200') therefrom, such amendment shall not become effective except by the favorable vote of three - fourths (3/4) of all members of the City Council; further, three - fourths (3/4) of all the members of the City Council is required to override the decision of the Planning and Zoning Commission that a zoning change be denied (TEX. Loc. Gov'T CODE § 211.066 Tex. (Vernon 2014) and Section 35.3.4.C.(4) Denton City Code (Development Code)). ( "All" members of the City Council is construed to mean all who are Qualified to vote on a matter, and any legal disqualification of a member could change the requisite number of votes required for passage. City of Alamo Heights v. Gerety et al., 264 S.W. 2d 778 (Ct. App. — San Antonio (1954)). e. Amendment of Tax Abatement Policy: The guidelines and criteria adopted as the City's Tax Abatement Policy may be amended or repealed by a vote of three - fourths (3/4) of all members of the City Council (TEX. TAX CODE §312.002(c) (Vernon 2014)). 10. (2 -290)) SEVERABILITY CLAUSE If any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas, hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 2. That Ordinance No. 2011 -038 is repealed. SECTION 3. That this Ordinance shall become effective immediately upon its passage and approval. PAGE 17 SALegak0ur Documents \0rdinances \15 \CC Rides of Procedures 2015 -4 for July 28, 2015.doc PASSED AND APPROVED this the day of , 2015. ATTEST: JENNIFER WALTERS, CITY SECRETARY C. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: A �-� CHRIS WATTS, MAYOR PAGE 18 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN Legislation Text File #: ID 15 -681, Version: 1 Agenda Information Sheet DEPARTMENT: Police CM/ ACM: John Cabrales Date: August 4, 2015 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to make an application with the Texas Auto Burglary and Theft Prevention Authority for a grant to focus on auto theft and auto burglary and take all other actions necessary to obtain and implement the program; and providing for an effective date. BACKGROUND The Texas Auto Burglary and Theft Prevention Authority (ABTPA) provides grants to county and municipal law enforcement agencies to address and reduce the number of auto thefts and vehicle burglaries within their jurisdictions. The ABTPA is funded by a legislatively mandated annual assessment fee paid by individual automobile insurance policyholders. The grants are awarded on a yearly basis. Agencies must re -apply each year. ABTPA functions as the lead organization in a statewide network of law enforcement agencies, prosecutors, insurance industry representatives, local tax assessor - collectors, community organizations, and concerned citizen groups. In addition to providing guidance and oversight, the ABTPA awards grant funds to agencies, organizations, and concerned parties in an effort to raise public awareness of vehicle theft/burglary and also implement education and prevention initiatives. The Police Department is seeking approval to apply for an award of an ABTPA enforcement grant. The enforcement program targets vehicle related crime. It includes proactive measures such as used car lot inspections and salvage yard inspections. There is a public awareness portion as well that will continue community education events specific to the City of Denton and Denton County. The grant will continue to cover the base salary and benefits up to 100% of the base salary of a Public Awareness /Analyst position. The grant would also pay for equipment. The grant requirements stipulate an applying agency must have approval from City Council to submit an application. FISCAL INFORMATION City of Denton Page 1 of 2 Printed on 7/30/2015 File M ID 15 -681, Version: 1 The grant application will be for approximately $267,793. This will include personnel costs, vehicles, and equipment. The City's cost for benefits will be up to $27,930. The grant requires a 20% match from the City in the amount of $53,500. This will be covered by salaries of staff currently involved in the day -to -day operations under supervision, administration, and support not covered by the grant. EXHIBITS Auto Theft Grant Ordinance Respectfully submitted: Lee Howell Chief of Police Prepared by: Chris Summitt Police Lieutenant City of Denton Page 2 of 2 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: ID 15 -624, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: Bryan Langley, Assistant City Manager Date: August 4, 2015 SUBJECT Consider nominations /appointments to the City's Boards and Commissions: Airport Advisory Board; Animal Shelter Advisory Committee; Community Development Advisory Committee; Health & Building Standards Commission; Historic Landmark Commission; Human Services Advisory Committee; Library Board; Parks, Recreation and Beautification Board; Planning and Zoning Commission; Public Art Committee; Public Utilities Board; Traffic Safety Commission; and Zoning Board of Adjustment. BACKGROUND Attached are the nominations Council has submitted for board and commission positions. Any additional nominations made during the Work Session will be provided prior to approval. If you require any further information, please let me know. Respectfully submitted: Jennifer Walters City Secretary Exhibits Exhibit 1 - Nominations Sheet City of Denton Page 1 of 1 Printed on 7/30/2015 BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Airport Advisory Board Roden Briggs Johnson Kent Key N Animal Shelter Advisory Committee Wazny David Zoltner (N) Hawkins Watts Community Development Advisory Crate. Roden Briggs Hawkins Johnson Barbara Gaile N Health & Building Standards Commission Roden Wazny Rex Stafford (N) Gregory Johnson Brooks Stoy (N) Watts Historic Landmark Commission Roden Wazny Peggy Riddle (R) Hawkins Eric Pulido (R) Gregory Johnson Kenneth Williamson (N) All Al ssa Stevenson R Human Services Advisory Committee Roden Wazny Stephen Coffey (R) Gregory Johnson Lisa Pieper (N) Watts Sheryl English (R) All Library Board Roden Briggs Gregory Johnson Bonnie McCormick R Parks, Recreation & Beautification Board Roden Johnson Russ Stukel (R) Watts Planning and Zoning Commission Roden Briggs Hawkins Andrew Rozell (N) Watts Public Art Committee Roden Hawkins Frank Mayhew N R - Reappointment N - New Nomination BOARD AND COMMISSION NOMINATIONS Board Council Member Nomination Gregory Johnson Jim Clement R Public Utilities Board Roden Briggs Gregory Watts Charles Jackson R Traffic Safety Commission Wazny Nancy DiMarco (R) Hawkins Brad Hudson (N) Gregory Watts Patrice L ke R Zoning Board of Adjustment Roden Wazny Sara Bagheri (N) Hawkins Johnson Greg Sawko (N) Watts Connie Baker (R) Alternate Marshall Surratt R R - Reappointment N - New Nomination City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: DCA14- 0009j, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Planning and Development CM/ ACM: Jon Fortune Date: August 4, 2015 SUBJECT Consider adoption of an ordinance amending Subchapters 5, 16 and 22 of the Denton Development Code, relating to Gas Well Drilling and Production, Definitions and Procedures; providing a cumulative clause; providing a severability clause; providing for a penalty; and providing for an effective date (DCA14- 0009j). The Planning and Zoning Commission recommends approval (7 -0), with amendments. BACKGROUND On December 16, 2014, the City Council and Planning and Zoning Commission (P &Z) held a joint Public Hearing concerning ordinance amendments to Subchapters 5, 7, 16, and 22 of the Denton Development Code. City Council continued the public hearing to their January 6, 2015 meeting and P &Z closed their public hearing, but delayed action as an Item for Individual Consideration. Since the initial joint public hearing for DCA14 -0009, the P &Z deliberated on this topic during three public meetings and ultimately voted 4 -3 to recommend denial of the initially proposed revisions. In addition, the City Council deliberated on this matter during eight separate meetings. During the course of City deliberations on DCA14 -0009, the Texas Legislature was also working to propose statewide regulations that impacted municipal regulatory oversight of urban oil and gas drilling. Specifically, House Bill 40 (HB 40), relating to the exclusive jurisdiction of this state to regulate oil and gas operations in this state and the express preemption of local regulation of those operations, was enacted by the Texas Legislature and signed by the Governor on May 18, 2015. This new legislation prompted City staff to review the City's gas well regulations, including the current rules and previously proposed revisions, in order to reconcile the municipal ordinances with state law. In light of the statewide changes brought forth from HB 40, staff concluded that the initially proposed amendments to Subchapters 5, 7, 16 and 22 of the Denton Development Code needed further consideration. As a result, on June 16, 2015, the City Council decided to remand DCA14 -0009 back to the P &Z to develop new, innovative DDC amendments. House Bill 40 provides that municipalities may enact, amend, or enforce an ordinance that regulates aboveground activity related to an oil and gas operation that occurs at or above the surface of the ground, including a regulation governing fire and emergency response, traffic, lights, or noise, or imposing notice or reasonable setback requirements so long as such regulation is commercially reasonable and does not effectively prohibit an oil and gas operation conducted by a reasonably prudent operator and which is not otherwise preempted by law. The table included on the following page summarizes the respective regulatory authority spelled out under House Bill 40 for various oil and gas related activities. City of Denton Page 1 of 4 Printed on 7/30/2015 File #: DCA14- 0009j, Version: 1 House Bill 40: Oil and gas operation activities preempted: Aboveground surface activities City can regulate: 1. Exploration, development, production, processing, and transportation of oil & gas; 1. Fire and emergency response 2. Drilling; 2. Traffic 3. Hydraulic fracturing; 3. Lights 4. Completion; 4. Noise 5. Maintenance; 5. Imposing Notice 6. Reworking; 6. Reasonable setback requirements 7. Recompletion; 6. 8. Disposal; Relief Measures 9. Plugging and abandonment; DDC Section 35.22.1 - 10. Secondary or tertiary recovery; and 8. 11. Remediation activities. Standards for Gas Well Drilling and Production The ordinance revisions are still intended to remedy the impacts of hydrocarbon exploration in an urban environment, to include oil and gas operations that occur at or above the surface of the ground; such as emergency response, traffic, lights, noise, notice, and setback requirements. Primary objectives for the proposed revisions are to preserve: surface property values; the character of neighborhoods; and other quality of life issues in the city of Denton. To achieve this goal, Subchapter 22 of the Denton Development Code (DDC) was streamlined and reorganized to provide a clear understanding of the gas well development requirements inside the city limits. In addition to changes contained within Subchapter 22, revisions to additional DDC Chapters have been proposed. In some cases, existing provisions were amended, such as for the use charts and the limitations by type of zoning district contained in Subchapter 5. In other cases, an entire new subsection is being added, such as the provisions proposed as an addition under Subchapter 35.5.10.1 -6 and the additions proposed as Subchapter 35.16.7.E -F. The list of new ordinance amendments is as follows: 1. DDC Section 35.5.10.1 - Purpose, Authority, and Applicability 2. DDC Section 35.5.10.2 - Required Authorization for Gas Well Development in City 3. DDC Section 35.5.10.3 - General Permit Requirements 4. DDC Section 35.5.10.4 - Gas Well Development Site Plans 5. DDC Section 35.5.10.5 - Gas Well Permits 6. DDC Section 35.5.10.6 - Relief Measures 7. DDC Section 35.22.1 - Definitions 8. DDC Section 35.22.2 - Standards for Gas Well Drilling and Production 9. DDC Section 35.22.3 - Indemnification and Insurance 10. DDC Section 35.22.4 - Security City of Denton Page 2 of 4 Printed on 7/30/2015 File #: DCA14- 0009j, Version: 1 11. DDC Section 35.22.5 - Inspection 12. DDC Section 35.22.6 - Periodic Reports 13. DDC Section 35.22.7 - Notice of Activities 14. DDC Section 35.22.8 - Remedies, Enforcement, and Right of Entry 15. DDC Section 35.22.9 - Watershed Permits for Gas Well Developments 16. DDC Section 35.16.7 - Lots, Access, and Common Areas OPTIONS Approve, deny or postpone the action. RECOMMENDATION On July 22, 2015, the Planning and Zoning Commission (P &Z) voted 7 -0 to recommend APPROVAL of DCA14 -0009, with amendments. Staff recommends APPROVAL of DCA14 -0009, as amended. PRIOR ACTION/REVIEW: On December 16, 2014, the City Council and P &Z held a joint Public Hearing concerning ordinance amendments to Subchapters 5, 7, 16, and 22 of the Denton Development Code. City Council continued the public hearing to their January 6, 2015 meeting and P &Z closed their public hearing, but delayed action as an Item for Individual Consideration. On January 6, 2015, City Council voted 6 -0 to continue the public hearing for DCA14 -0009 to their next meeting. On January 7, 2015, P &Z voted 7 -0 to delay action on the Item for Individual Consideration of DCA14 -0009 until their next meeting. On January 13, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to an event certain, which is the meeting following receipt of a recommendation report from P &Z. On January 21, 2015, P &Z voted 7 -0 to delay action on the Item for Individual Consideration of DCA14 -0009 until their next meeting. On February 4, 2015, P &Z voted 4 -3 to recommend DENIAL of DCA14 -0009, as presented. On February 17, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to March 3, 2015. On March 3, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to March 24, 2015. On March 24, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to April 7, 2015. On April 7, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to April 14, 2015. On April 14, 2015, City Council voted 7 -0 to continue the public hearing for DCA14 -0009 to June 16, 2015. On June 16, 2015, City Council voted 6 -1 to remand DCA14 -0009 back to P &Z for a public hearing on July City of Denton Page 3 of 4 Printed on 7/30/2015 File #: DCA14- 0009j, Version: 1 22, 2015. On July 22, 2015, P &Z voted 7 -0 to recommend APPROVAL of DCA14 -0009, with amendments. On July 28, 2015, City Council voted (7 -0) to close the public hearing for DCA14 -0009 and continued action to August 4, 2015. ATTACHMENTS: 1. Draft Gas Well Ordinance - redline version (hard copy provided under separate cover) - reflects P &Z Commission's policy recommendations regarding setbacks and variances, along with City Staff's non - policy recommended changes 2. Draft Gas Well Ordinance - clean version (hard copy provided under separate cover) - reflects City Staff's policy recommendations (highlighted in yellow) regarding setbacks and variances, along with City Staff's non - policy recommended changes Respectfully submitted: Aimee Bissett Interim Planning & Development Director Prepared by: Darren Groth, AICP, CPM, REP Manager, Gas Well Inspections Division City of Denton Page 4 of 4 Printed on 7/30/2015 City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com D EN'FON File #: Z15 -0013, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Planning and Development CM/ ACM: Jon Fortune Date: August 4, 2015 SUBJECT Hold a public hearing and consider a rezoning from a Neighborhood Residential 4 (NR -4) district to a Community Mixed Use General (CM -G) district on approximately 8.04 acres of land generally located on the west side of Teasley Lane (FM 2181), approximately 600 feet north of Hickory Creek Road. The Planning and Zoning Commission recommends approval (5 -0). BACKGROUND Over the last 10 to 15 years, the area around the intersection of Teasley Lane (FM 2181) and Hickory Creek Road has quickly evolved into an important commercial center. In the early 2000's, the area was primarily undeveloped and all but the southeast corner of the intersection was zoned for single - family residential. The southeast corner was zoned Neighborhood Residential Mixed Use (NRMU) to allow for a light- commercial, neighborhood center. Since that time, however, the rapid residential growth in south Denton has also increased demand for commercial uses. To meet this demand, the southeast corner (Hickory Creek Plaza) developed with commercial uses in 2008, the southwest corner was rezoned to CM -G in 2009 for commercial development, and in 2014 the northwest corner was rezoned from NR -4 to CM -G in anticipation of the Sprouts grocery store. Today, the applicant is requesting to rezone an additional 8.04 acres from NR -4 to CM -G to create a 15 -acre Shopping Center. To comply with the public hearing notice requirements, 13 notices were sent to property owners within 200 feet of the subject property, 42 courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the property. The applicant chose not to hold a neighborhood meeting. OPTIONS Approved as submitted 2. Approve subject to conditions 3. Deny 4. Postpone consideration 5. Table item RECOMMENDATION City of Denton Page 1 of 2 Printed on 7/30/2015 File #: Z15 -0013, Version: 1 The Planning and Zoning Commission recommends approval of this request (5 -0). The Development Review Committee recommends approval of this request. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On July 8, 2015, the Planning and Zoning Commission recommended approval of the rezoning request (5 -0). EXHIBITS 1. Planning and Zoning Commission Staff Report 2. Site Location/Aerial Map 3. Zoning Map 4. Future Land Use Map 5. ESA Map 6. NR -4 Permitted Uses 7. CM -G Permitted Uses 8. Applicant Narrative 9. Public Notification Map 10. July 8, 2015 Planning and Zoning Commission Minutes 11. Draft Ordinance Respectfully submitted: Aimee Bissett Interim Director, Planning and Development Prepared by: Michael J. Bell Associate Planner City of Denton Page 2 of 2 Printed on 7/30/2015 Planning Report Z15- 0013 /Hickory Creek Shopping Center City Council District 4 Planning & Zoning Commission July 8, 2015 REQUEST: Hold a public hearing and consider making a recommendation to City Council regarding a rezoning from a Neighborhood Residential 4 (NR -4) district to a Community Mixed Use General (CM -G) district on approximately 8.04 acres of land generally located on the west side of Teasley Lane (FM 2181), approximately 600 feet north of Hickory Creek Road. APPLICANT: Winkelmann & Associates, Inc. OWNER: Dwight Thompson Ministries, Inc. BACKGROUND: Over the last 10 to 15 years, the area around the intersection of Teasley Lane (FM 2181) and Hickory Creek Road has quickly evolved into an important commercial center. In the early 2000's, the area was primarily undeveloped and all but the southeast corner of the intersection was zoned for single- family residential. The southeast corner was zoned Neighborhood Residential Mixed Use (NRMU) to allow for a light- commercial, neighborhood center. Since that time, however, the rapid residential growth in south Denton has also increased demand for commercial uses. To meet this demand, the southeast corner (Hickory Creek Plaza) developed with commercial uses in 2008, the southwest corner was rezoned to CM -G in 2009 for commercial development, and in 2014 the northwest corner was rezoned from NR -4 to CM -G in anticipation of the Sprouts grocery store. Today, the applicant is requesting to rezone an additional 8.04 acres from NR -4 to CM -G to create a 15 -acre Shopping Center. SITE DATA: The subject property is an undeveloped parcel of land approximately 8.04 acres in size. Teasley Lane (FM 218 1) forms the eastern boundary, which is a TxDOT owned and maintained right -of- way planned for expansion to a six -lane, divided arterial in the near future. USE OF PROPERTY UNDER CURRENT ZONING: The purpose of the NR -4 zoning district is to allow low density, single- family development with a maximum density of four units per acre. Agriculture, single- family dwellings, community homes for the disabled, home occupations, outdoor recreation, parks, and churches are permitted by right. Refer to the attachment "NR -4 Permitted Uses" for a detailed list of permitted uses in the NR -4 zoning district. SURROUNDING ZONING AND LAND USES: North: There are two properties to the north. The property along Teasley Lane (FM 2181) is developed with a medical center /pharmacy and is zoned Neighborhood Residential Mixed Use (NRMU). The property to the northwest is the retention pond for the Lexington Park subdivision and is zoned NR -4. East: Properties to the east are separated by the Teasley Lane (FM 2181). These include a church and commercial uses zoned Rural Residential (RD -5X) and the Wheeler Ridge subdivision which is part of Planned Development 172 (PD -172). South: To the south is an undeveloped property anticipated for commercial uses zoned CM -G. West: To the west is a single- family ranch home zoned NR -2. COMPATIBILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The CM -G district is primarily a commercial zoning designation intended to provide shopping, services, recreation, employment and institutional facilities for large parts of the city. Supporting residential is also permitted; including dwellings above businesses, live /work units, and multifamily if located on the 2nd story and above when part of a mixed use development or approved with a Specific Use Permit (SUP). Refer to the attachment "CM -G Permitted Uses" for a detailed list of permitted uses in CM -G zoning district. If approved, CM -G would allow compatible uses with the pharmacy to the north and the CM -G property to the south. Collectively, these properties are part of a larger Community Mixed Use center located at the intersection of Teasley Lane (FM 2181) and Hickory Creek Road. The single- family ranch home to the west would be buffered by a 30 ft. landscape buffer in addition to an eight foot masonry wall. COMPREHENSIVE PLAN: Per Denton Plan 2030, the subject property is located within a "Community Mixed Use" future land use designation that includes the southeast, southwest, and northwest corners of the Teasley Lane (FM 2181) and Hickory Creek intersection. Community Mixed Use is described in the Denton Plan 2030 as follows: "Community Mixed Use" is intended to promote a mix of uses, of which various commercial uses remain predominant, but where residential, service, and other uses are complimentary. This land use applies to existing and future commercial areas in the city, where redevelopment to mixed -use is desirable. The intent is to encourage a more diverse and attractive mix of uses over time. Future development in Community Mixed Use areas will complement and embrace existing, viable uses, and raise the standard of design to increase their economic viability, accommodate greater connectivity and mobility options, and create a sense of place to serve the local community. Development criteria of the Community Mixed Use future land use designation include: a) Typical types of development may include a supermarket, drug store, specialty shops, service stations, midsize offices, employers, and high -to- moderate density housing. b) Places of worship, schools, and parks and open space are allowed by right. Planning Report Z15 -0013 Page 2 of 5 c) Diverse uses shall be located in close proximity to one another so that all uses are accessible from a single stop by walking or bicycling. d) Vertical and horizontal mixed -use is encouraged. e) Development should be accessible from transit routes. f) Commercial uses should be programmed appropriately to serve the local Denton community and to be compatible with adjacent land uses. g) The character of this area should be maintained by ensuring that new development is sensitive to the surrounding built and natural context in scale and form as described above. h) Proposals should be present and reviewed according to the degree to which they achieve the goals of the Community Mixed Use land use and may be the subject of Small Area Plans, when significant developments are proposed. CONSIDERATIONS: 1. The subject property is currently zoned NR -4. This zoning was applied to the property in 2002 as part of city -wide rezoning when most of the neighborhoods in the Teasley - Hickory Creek area had not yet developed. Since that time, rapid growth of residential development in the area has also increased demand for commercial uses. A rezoning to CM -G would permit additional commercial uses in the area to meet this increased demand. 2. According to the Denton Plan 2030, a Community Mixed Use area has an eight square mile service area with a population around 40,000 people. Within the eight square mile service area of the Teasley - Hickory Creek Community Mixed Use area there is currently an estimated population of approximately 12,000 people in the city limits of Denton and 8,000 residents within the City of Corinth. There are also approximately 350 acres of undeveloped property zoned for residential that may add to the demand for commercial services in the future. The anticipated population in this area supports the request to rezone to CM -G. 3. There is FEMA Floodplain and Environmentally Sensitive Area (ESA) along the north and west sides of the subject property which separate it from the adjacent properties also zoned for single- family. As a result, there is no opportunity for future connectivity to these neighborhoods and all access to the subject property would be directly from Teasley Lane. For these reasons, all the area east of the FEMA floodplain was changed to a Community Mixed Use area future land use designation as part of Denton Plan 2030. The request to rezone to CM -G is consistent with this future land use designation. 4. Teasley Lane (FM 218 1) and Hickory Creek Road is an intersection of two Primary Arterial Roadways. Teasley Lane is a major roadways connecting to I -35E in Denton to I -35E in Corinth to the east. Hickory Creek Road is an east -west roadway connecting Country Club Road to the west and future FM 2499 to the east. These factors make this intersection an appropriate location for a Community Mixed Use area. Planning Report Z15 -0013 Page 3 of 5 5. The property directly to the north is developed with a commercial use and the property directly to the south is anticipated to develop with commercial uses. Only if the subject property is rezoned to CM -G and developed with commercial uses will cross connectivity across these three properties be required. This is an important factor when considering that Teasley Lane is planned for expansion into a six -lane, divided Primary Arterial and the only proposed median opening on Teasley Lane is located in front of the subject property. If rezoned to CM -G and developed with commercial uses, the cross connectivity requirement would allow all three properties to utilize the median opening. If the property remains NR -4, this connectivity would not be required. 6. Per Section 35.3.4.13 of the DDC, zoning changes may be approved if the proposed rezoning conforms to the Future Land Use Element of Denton Plan 2030. Per Denton Plan 2030, the subject property is currently within a Community Mixed Use future land use designation. The proposed CM -G zoning conforms to the Future Land Use Element of Denton Plan 2030. 7. Zoning changes may also be approved if the proposed rezoning facilitates the adequate provision of transportation, water, sewers, schools, parks, and other public requirements and public convenience. There is adequate capacity within the City's public infrastructure and services to serve either commercial or single- family development of the site. STAFF RECOMMENDATION: Staff recommends approval of the request as it is consistent with the goals and objectives of the Denton Plan 2030. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. 3. Recommend denial. 4. Table the item. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, 13 notices were sent to property owners within 200 feet of the subject property, 42 courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the property. The applicant chose not to hold a neighborhood meeting. Planning Report Z15 -0013 Page 4 of 5 PROJECT TIMELINE: ATTACHMENTS: • Aerial Map • Zoning Map • Future Land Use Map • ESA Map • NR -4 Permitted Uses • CM -G Permitted Uses • Applicant Narrative • Public Notification Map Prepared By: ///,/V/11-1 IQIII1 Mike Bell Associate Planner Date: 7/2/15 Reviewed By: Ron Menguita, AICP Development Review Committee Administrator Date: 7/2/15 Reviewed By: rc � Munal Mauladad Assistant Director, Planning and Development Date: 7/2/15 Planning Report Z15 -0013 Page 5 of 5 Business Days Business Subject Date under Days out DRC Review to Applicant Application Received April 16, 2015 - - 1 st Submittal sent to DRC Members April 23, 2015 - - Comments Released to Applicant May 8, 2015 11 - DRC Meeting with Staff May 14, 2015 - - 2n d Submittal sent to DRC Members June 2, 2014 - 15 Comments Released to Applicant June 2, 2014 1 - Total Business Days 12 15 ATTACHMENTS: • Aerial Map • Zoning Map • Future Land Use Map • ESA Map • NR -4 Permitted Uses • CM -G Permitted Uses • Applicant Narrative • Public Notification Map Prepared By: ///,/V/11-1 IQIII1 Mike Bell Associate Planner Date: 7/2/15 Reviewed By: Ron Menguita, AICP Development Review Committee Administrator Date: 7/2/15 Reviewed By: rc � Munal Mauladad Assistant Director, Planning and Development Date: 7/2/15 Planning Report Z15 -0013 Page 5 of 5 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 27 DRAFT Minutes DRAFT Planning and Zoning Commission July 8, 2015 After determining that a quorum was present, the Planning and Zoning Commission convened a Work Session on Wednesday, July 8, 2015 at 4:00 p.m. in the City Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which time the following items were considered: PRESENT: Vice -Chair Frank Conner. Commissioners: Jim Strange, Brian Bentley, Devin Taylor, and Frank Dudowicz. ABSENT: Chair Thom Reece and Commissioner Amber Briggle. STAFF: Athena Green, Darren Groth, Earl Escobar, Ron Menguita, Sophie Huemer, Mike Bell, Munal Mauladad, Julie Wyatt, Ross Culbertson, and Jennifer DeCurtis. Vice -Chair Frank Conner called the meeting to at 4:03 p.m. CLOSED MEETING Vice -Chair Frank Conner opened the Closed Meeting at 4:04 p.m. 1. Consultation with Attorneys —Under Texas Government Code Section 551.071. A. Consult with City's attorneys regarding legal issues associated with the Rayzor Ranch Overlay District zone where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. B. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, 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 vested rights; impacts of federal and state law and regulations; impacts of gas well drilling upon protected uses and vice - versa; current and proposed extension to moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current and proposed; settlement matters concerning gas well drilling in the City; surface development issues involving surface and mineral estates; and legal matters associated with a citizen's initiative ordinance and pending litigation styled George P. Bush, Commissioner, Texas General Land Office v. City of Denton Texas, Cause No. 15- 02058 -362 currently pending in the 362nd District Court of Denton County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 08933 -431 currently pending in the 431st District Court of Denton County regarding hydraulic fracturing where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. 1 2 WORK SESSION 3 4 Vice -Chair Conner called the Work Session to order at 5:38 p.m. 5 3. Hold a discussion on complementary amendments to the Denton Development Code, specifically Subchapters 5, 7, 16, and 22, relating to Gas Well Drilling and Production, Definitions, and Procedures, in light of City Council's action to remand DCA14 -0009 back to the Planning and Zoning Commission after the Governor signed House Bill 40 into law on May 18, 2015 (Darren Groth) 6 7 Work Session Item 3 was held before Work Session Items 1 and 2. 8 9 Darren Groth, Gas Well Administrator, presented this request. He provided information on the 10 background, legal framework, zoning implementation, and Gas Well standards implementation. 11 12 The setbacks are a leading concern for all parties within the City. House Bill 40 was signed by 13 Governor Greg Abbott on May 18, 2015. Groth provided the proposed setbacks for residential 14 districts, commercial districts, industrial districts, and master planned community and planned 15 development districts. 16 17 Commissioner Strange questioned the setbacks. Groth stated the existing site setbacks are 600 18 feet, the minimum is 250 feet, and the reverse setback is 500 feet. There was no further 19 discussion. 20 1. Clarification and discussion of agenda items listed in the Regular Session agenda for this meeting„ and discussion of issues not briefed in the written backup materials. 21 22 Sophie Huemer, Assistant Planner, presented the request for SP15 -0002. She provided the 23 location map, zoning map, site plan, and landscape plans. Huemer stated staff recommends 24 approval of this request. There were no questions. 25 26 Sophie Huemer, Assistant Planner, presented the request for SP15 -0003. She provided the 27 location map, zoning map, site plan, landscape plans and elevations. Huemer provided the 28 criteria for approval. Staff recommends approval of this request. The applicant is proposing 29 1,428 square foot of streetscape plaza area. This includes seating, shaded area, additional trees 30 and planters, and a bicycle rack. 31 32 Commissioner Dudowicz referred to the parking requirements, he questioned the number of 33 employees and rooms for the facility. Huemer stated the applicant did not provide the details for 34 the number of employees to be on site. She stated the parking requirements for hospital uses are 35 normally factored one per two patient hospital beds. She stated the applicant can provide further 36 clarification. 2 I Commissioner Bentley questioned if the plaza requirement is particular for this property or the 2 overall development. Huemer stated the plaza developments are done site to site. She stated it is 3 written in the ordinance that every site plan shall provide a streetscape plan. 4 5 Commissioner Bentley questioned if the trees are being double counted for the different 6 requirements. Huemer will provide a response during the Regular Meeting. 7 8 Mike Bell, Associate Planner, presented Public Hearing Item 4A. He provided the request and 9 the plat. There was no further discussion. 10 11 Mike Bell, Associate Planner, presented Public Hearing Item 4B. He provided the location map, 12 zoning map, Future Land Use Map, and criteria for approval. Staff sent out 13 public hearing 13 notices to property owners within 200 feet of the subject site, and 42 courtesy notices to property 14 owners within 500 feet of the subject site. At this time staff has received one returned response in 15 favor of this request. Staff recommends approval of this request. 16 17 Commissioner Conner questioned which area Sprouts would be developing on. Bell stated the 18 hard corner on Hickory Creek Road and Teasley Lane. Conner questioned if the neighboring 19 pharmacy has expressed any concerns. Bell stated he has spoken with him in regards to the 20 request. He stated the neighbor was okay with the proposal. There was no further discussion. 21 22 Mike Bell, Associate Planner, presented Public Hearing Item 4D. He provided the location map, 23 zoning map, Future Land Use Map, and the criteria for approval. Staff sent out one public 24 hearing notice to property owners within 200 feet of the subject site, and five courtesy notices to 25 property owners within 500 feet of the subject site. At this time staff has not received any 26 returned responses. Staff recommends approval of this request. There was no further discussion. 27 28 Mike Bell, Associate Planner, presented Public Hearing Item 4E. Bell provided history on 29 microbreweries. The use is currently classified as light manufacturing. The request is to permit 30 microbreweries downtown without allowing all light manufacturing; require onsite consumption, 31 at least downtown; maintain an appropriate scale for downtown; and not to effect restaurants that 32 brew beer as an accessory item. 33 34 Bell provided the proposed definitions for the use and zoning classification requirements. 35 Bentley stated he likes the proposal. He referred to the definition. He stated retail sales in the 36 definition is not defined. DeCurtis stated it needs to be capitalized so it known it is part of the 37 definition. 38 39 Vice -Chair Conner closed the Work Session at 6:30 p.m. 40 2. Receive a report and hold discussion regarding the RUzor Ranch Overlay District. (Sophie Huemer 41 42 This item has been withdrawn. 43 3 I REGULAR MEETING 2 3 The Planning and Zoning Commission convened a Regular Meeting of the Planning and Zoning 4 Commission of the City of Denton, Texas which was held on Wednesday, July 8, 2015 and 5 began at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time 6 the following items were considered: 7 8 Vice -Chair Conner called the Regular Meeting to order at 6:35 p.m. 9 10 11 12 13 14 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. CONSENT AGENDA: Staff recommends annroval of the followiniz items because the meet the requirements of the Denton Development Code. Approval of the Consent Agenda _ includes staff recommendations for aprovals and authorizes staff to proceed. The Planning and Zoning Commission has reviewed the applications and has had an opportunity to raise questions regarding the items prior to consideration: A. Consider a Final Plat of Lot 1, Block of the Majestic on McKinney Addition. The approximately 11.4 acre property is generally located The subject property is generally located on the south side of McKinney Street, approximately 1,000 feet west of Mockingbird Lane, within the M. Yoachum Survey, Abstract No. 1142. (FP 15-0008, Majestic on McKinney Apartments, Ross Culbertson) B. Consider a Final Plat of Lot 1, Block A of the Ron's Wrecker & Towing Service Addition. The approximately 1.003 acre property is generally located on the north side of Jim Christal Road, approximately 180 east of Masch Branch Road, within the W. Bryan Survey, Abstract No. 148. (FP15 -0016, Ron's Wrecker and Towing Service, Mike Bell) C. Consider a Preliminary Plat of Robson Ranch, Unit 10 -1 & 10 -2. The approximately 61.23 acre subject property is generally located northwest of Michelle Way Street, approximately 195 feet north of Freeport Drive, within the M. Scurlock Survey, Abstract No. 1141. The project is located within the Robson Ranch Planned Development District 173 (PD -173). (PP15 -0005, Robson Ranch, Unit 10 -1 & 10 -2, Julie Wyatt) D. Consider a Final Plat of Robson Ranch, Unit 10 -1. The approximately 35.75 acre subject property is generally located northwest of Michelle Way Street, approximately 195 feet north of Freeport Drive, within the M. Scurlock Survey, Abstract No. 1141. The project is located within the Robson Ranch Planned Development District 173 (PD -173). (FP15 -0014, Robson Ranch, Unit 10 -1, Julie Wyatt) 4 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 Commissioner Brian Bentley motioned, Commissioner Jim Strange seconded to approve the Consent Agenda items. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". 3. ITEM FOR INDIVIDUAL CONSIDERATION: A. Consider approval of a Site Plan within the Rayzor Ranch South Campus for a restaurant building on proposed future Lot 5, Block A of the Rayzor Ranch Town Center, Phase One. The approximately 1.515 acre site is generally located on the south side of U.S. Hi_ ghway 380 (West University Drive) and 1700 feet east of Interstate Highway 35 (I -35). The subject property is within a Regional Center Commercial Downtown (RCC -D) zoning district and is further encumbered by the Rayzor Ranch Overlay District. (SP15 -0002, Raising Cane's Restaurant, Sophie Huemer) Sophie Huemer, Assistant Planner, presented this request. She provided the location map, zoning map, site plan, and landscape plans. Huemer provided the criteria for approval. Staff recommends approval of this request. There were no questions. Applicant, Lauren Nuffer, Kimley -Horn and Associates, 5750 Genesis Ct., Frisco, Texas. Nuffer thanked staff and this Commission for their work throughout the process. There was no further discussion. Commissioner Frank Dudowicz motioned, Commissioner Jim Strange seconded to approve this request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". "aye ". B. Consider aproval of a Site Plan within the Rayzor Ranch South Campus for a pediatric medical center on proposed future Lot 1, Block A of the Cook Children's Medical Center Addition. The aproximately 3.278 acre site is generally located on the north side of Scripture Street and approximately 1700 feet east of Interstate Hi _ghway 35 (I -35). The subject property is within a Regional Center Commercial Downtown (RCC -D) zoning district and is further encumbered by the Rayzor Ranch Overlay District. (SP15 -0003, Cook Children's Medical Center, Sophie Huemer) Sophie Huemer, Assistant Planner, presented the request for SP15 -0003. She provided the location map, zoning map, site plan, landscape plans and elevations. Huemer provided the criteria for approval. Staff recommends approval of this request. The applicant is proposing 1,428 square foot of streetscape plaza area. This includes seating, shaded area, additional trees and planters, and a bicycle rack. The applicant is present. Staff recommends approval of this request. 5 I Commissioner Bentley questioned if staff has made a determination of the tree count has been 2 doubled. Huemer stated the numbers are correct, they have not be duplicated. 3 4 Sam Hanna, Dunaway and Associates, 550 S. Bailey Street, Fort Worth, Texas. Hanna stated the 5 proposed trees are in addition to the landscape trees to suffice for the plaza. 6 7 Commissioner Dudowicz questioned the number of office spaces and staff for the medical clinic. 8 9 Ted Gupton, Good Fulton and Farrell, 3100 W 7th, Fort Worth, Texas. Gupton stated there are 10 approximately 29 staff members. There are approximately six or seven doctors, which are 11 included in the total 29 staff members. Dudowicz acknowledged. 12 13 Commissioner Taylor questioned the landscape tree count. Hanna stated all the proposed trees 14 count towards the calculation. Huemer stated the parking lot trees can also count towards the 15 overall tree canopy. Taylor acknowledged. 16 17 Commissioner Jim Strange motioned, Commissioner Frank Dudowicz seconded to approve this 18 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 19 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 20 Vice -Chair Frank Conner, "aye ". 21 4. PUBLIC HEARINGS: 22 A. Hold a public hearing and consider a Final Replat of Lot 1R, Block A of the Victor Technologies Addition. The approximately 30.079 acre property is generally located on the southwest corner of Interstate 35 West and Airport Road (FM 1515), within the E. Pulchalski Survey, Abstract No. 996. The property is located within an Industrial Center Employment (IC -E) zoning district. (FR15 -0009, Victor Technologies Addition, Mike Bell) 23 24 Mike Bell, Associate Planner, presented this request. He provided the request and the plat. Bell 25 stated the applicant is present. Vice -Chair Conner opened the Public Hearing. There was no one 26 to speak on this item. Vice -Chair Conner closed the Public Hearing. There was no further 27 discussion. 28 29 Commissioner Brian Bentley motioned, Commissioner Devin Taylor seconded to approve this 30 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 31 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 32 Vice -Chair Frank Conner, "aye ". 33 11 B. Hold a public hearing and consider a recommendation to City Council regarding _ a rezoning request from Neighborhood Residential 4 (NR -4) to Community Mixed Use General (CM- G) on approximately 8.04 acres of land. The subject property is generally located on the west side of Teasley Lane (FM 2181), approximately 600 feet north of Hickory Creek Road. (Z15 -0013, Hickory Creek Shopping Center, Mike Bell) 3 Mike Bell, Associate Planner, presented this request. He provided the location map, zoning map, 4 Future Land Use Map, and criteria for approval. Staff sent out 13 public hearing notices to 5 property owners within 200 feet of the subject site, and 42 courtesy notices to property owners 6 within 500 feet of the subject site. At this time staff has received one returned response in favor 7 of this request. Staff recommends approval of this request. Bell stated the applicant is present. 8 9 Vice -Chair Conner opened the Public Hearing. 10 11 The following individuals spoke during the public hearing: 12 13 Michael Guthrie, 2471 Hickory Creek Road, Denton, Texas. He is opposed to this 14 request. He has concerns with fencing on his property. He has livestock on the property. 15 16 Bell stated there is a proposed eight foot masonry wall that will screen the property. The wall 17 will be located on the western property line. 18 19 There was no further discussion. Vice -Chair Conner closed the public hearing. 20 21 Commissioner Taylor informed Guthrie that this is one step in the review and approval process. 22 He suggested that Guthrie stay tuned for additional steps for predevelopment with City Council. 23 24 Commissioner Devin Taylor motioned, Commissioner Frank Dudowicz seconded to approve this 25 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 26 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 27 Vice -Chair Frank Conner, "aye ". 28 C. Hold a public hearing and consider making a recommendation to City Council regarding an initial zoning of Neighborhood Residential 1 (NR -1) District and a Specific Use Permit (SUP) for a Semi - Public Hall, Club, or Lodge on approximately 10.8 acre site is generally located on the east side of Barthold Road and approximately 2700 feet south of Ganzer Road. (Z15 -0014, Denton Shop with a Cop, Julie Wyatt) 29 30 Julie Wyatt, Assistant Planner, presented this request. She stated there are two projects that will 31 be heard together. She provided the location map, current zoning classification, surrounding area 32 zoning, and Future Land Use Map. Wyatt provided the criteria for approval. Staff sent out two 33 public hearing notices to property owners within 200 feet of the subject site and six courtesy 34 notices to property owners within 500 feet of the subject site. At this time staff has returned one 35 response in opposition of this request. A supermajority vote would be required by City Council. 36 7 I Staff recommends approval of Z15 -0014. Staff recommends approval of S 15 -0005, subject to the 2 following conditions: 1. Limit the hours of meeting times from 8:00 A.M. to 10:00 P.M. Sunday 3 through Thursday and 8:00 A.M. to 11:00 P.M. Friday and Saturday to reduce noise impacts on 4 adjacent properties. 2. Parking must be located to the side or behind the building to retain the 5 residential nature of the property and the area. Parking areas must be screened from adjacent 6 properties with a Type B buffer. A Type B buffer is a 10 -foot planted strip that includes a 7 combination of 5 evergreen and deciduous trees and 30 shrubs per 100 linear feet. 3. Any 8 additional improvements to expand the use other than adding 400 square feet to the existing 9 building for meeting space and restrooms and associated parking improvements will require 10 approval of a new Specific Use Permit. 4. The approval of the SUP is for the Denton Police 11 Officer's Association's Shop with a Cop and cannot be transferred to another entity. 12 13 Commissioner Bentley stated he is in favor of Conditions 3 and 4; however, he has some 14 concerns with Conditions 1 and 2. Wyatt stated the screening could be limited to the parking lot. 15 She stated the property already has six parking spaces. However, they would have to make some 16 changes for American's with Disabilities Act (ADA) parking requirements. 17 18 Commissioner Dudowicz questioned the calculation on the parking space requirements. Wyatt 19 stated they are calculated one parking space per four seats. 20 21 Commissioner Taylor questioned why the Denton Police Department would want a location this 22 far out of town. Wyatt deferred to the applicant. 23 24 Commissioner Taylor questioned if property owners not located within the City are notified. 25 Wyatt stated notices were sent to property owners within 200 feet and 500 feet of the subject site. 26 The public hearing was also noticed in the newspaper. Vice -Chair Conner opened the public 27 hearing. 28 29 The following individuals spoke during the public hearing: 30 31 Lisa McQuinn, 7202 Barthold Road, Krum, Texas. McQuinn stated she is in favor of this 32 request. The applicant will be good neighbors, and nice to have police officers in the area. 33 34 Commissioner Strange questioned McQuinn if she feels it is necessary to have the screen buffer 35 area. McQuinn stated she doesn't feel it is necessary. 36 37 J. R. Merritt, 2946 Ganzer Road, Denton, Texas. Merritt stated he is opposed to this 38 request unless he can gather more information to assure that this will not become another 39 wedding event center. He stated he is not sure if his property is still considered within the 40 City limits or not. Merritt was the one opposed returned response from the Public 41 Notification process. Merritt withdrew his opposition to this request. 42 43 Applicant, Virginia Nichols, City of Denton Police Department, P.O. Box 19103, Denton, Texas. 44 Nichols stated the proposed site is only 12 minutes from the Police Department. They would like 45 to have a location for staff to use for their lunch breaks for a downtime. Many of the officers do E3 I not live in Denton and do not have somewhere to go on their long shifts for downtime. Nichols 2 stated she has spoken with Merritt in regards to the request. 3 4 Commissioner Dudowicz questioned the parking situation. Nichols stated there are currently six 5 parking spaces on the rear of the building that are covered parking spaces. There is one proposed 6 to be converted to an ADA parking space. 7 8 Commissioner Taylor questioned Nichols if she has any concerns with the four conditions on the 9 request. Nichols stated she doesn't have any concerns with those conditions. There was no 10 further discussion. Vice -Chair Conner closed the public hearing. 11 12 Commissioner Bentley stated he would motion to approve this request with the removal of staff's 13 conditions 1 and 2. 14 15 Commissioner Brian Bentley motioned, Commissioner Jim Strange seconded to approve the 16 request for Z15 -0014 and S15 -0005, based on the following conditions: 1. Any additional 17 improvements to expand the use other than adding 400 square feet to the existing building for 18 meeting space and restrooms and associated parking improvements will require approval of a 19 new Specific Use Permit. 2. The approval of the SUP is for the Denton Police Officer's 20 Association's Shop with a Cop and cannot be transferred to another entity. Motion approved (5- 21 0). Commissioner Brian Bentley, "aye ", Commissioner Jim Strange, "aye ", Commissioner Frank 22 Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". 23 D. Hold a public hearing and consider a recommendation to City Council regarding _ a rezoning request from Neighborhood Residential 2 (NR -2) to Community Mixed Use General (CM- G) on approximately 1.7 acres of land. The subject property is generally located on the east side of North Bonnie Brae Street, aproximately 475 feet north of West University Drive (U.S. 380). (Z15 -0018, North Lakes Shopping Center, Mike Bell) 24 25 Mike Bell, Associate Planner, presented this request. Bell provided the location map, zoning 26 map, and Future Land Use Map. He provided the criteria for approval. Staff sent out one public 27 notices to property owners within 200 feet of the subject site, and five courtesy notice to property 28 owners within 500 feet of the subject site. At this time staff has not received any returned 29 responses. Staff recommends approval of this request. 30 31 Vice -Chair Conner opened the Public Hearing. There was no one to speak. Vice -Chair Conner 32 closed the Public Hearing. 33 34 Commissioner Frank Dudowicz motioned, Commissioner Devin Taylor seconded to approve this 35 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 36 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 37 Vice -Chair Frank Conner, "aye ". 38 p] E. Hold a public hearing and consider a recommendation to City Council regarding an amendment to the Denton Development Code to add "Craft Alcohol Production" to the list of zoning uses in Subchapter 5 and to add definitions for "Craft Alcohol Production" and "Restaurant, Brewpub" to Subchapter 23. (DCA15 -0002, Craft Alcohol Production, Mike Bell 1 2 Mike Bell, Associate Planner, presented this request. Bell provided history on microbreweries. 3 The use is currently classified as light manufacturing. The request is to permit microbreweries 4 downtown without allowing all light manufacturing; require onsite consumption, at least 5 downtown; maintain an appropriate scale for downtown; and not to effect restaurants that brew 6 beer as an accessory item. 7 8 Bell provided the proposed definitions for the use and zoning classification requirements. Bell 9 stated staff recommends approval of this request. 10 11 Vice -Chair Conner opened the public hearing. There was no one to speak on the item. Vice - 12 Chair Conner closed the public hearing. 13 14 Bentley stated he has concerns with the definition for the Legal Department to review; he feels 15 that the item should go back for review and then come back before this Commission. He has 16 concerns with onsite consumption and retail goods. Jennifer DeCurtis, Deputy City Attorney, 17 stated onsite consumption would be produced alcohol and retail and other proposed goods would 18 be wholesale. Mike Bell, Associate Planner, stated retail sales was drafted for the quality 19 produced on the site or for merchandising goods. 20 21 Commissioner Bentley stated he had concerns with the working "and /or" in the definition. 22 DeCurtis stated if Bentley would like to modify the wording in the definition it would need to be 23 done in the condition. 24 25 Munal Mauladad, Assistant Director of Planning and Development stated staff looked at the 26 "and /or" component to look at the use independent of, it is an all- encompassing use. The intent 27 was to have the ability not to scrutinize each component or use mentioned in that definition. Staff 28 wants there to be opportunity to consume onsite and purchase items such as Growlers. 29 30 Commissioner Taylor stated changes are going to restrict the activity that we are going for. There 31 needs to be the option to sell food or t- shirts at the location as well. Commissioner Bentley 32 questioned adding the phrase "complimentary products ". Commissioner Taylor stated that could 33 be excluding items though, although it makes sense. 34 35 Mike Bell, Associate Planner, stated if the event were to arise where the definition were 36 questioned, then the applicant could refute the definition and go before the Zoning Board of 37 Adjustment for an interpretation. 38 39 Commissioner Frank Dudowicz motioned, Commissioner Devin Taylor seconded to approve this 40 request as staff submitted. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", 10 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 Commissioner Jim Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". F. Hold a public hearing and consider making a recommendation to the City Council regarding _ an amendment to Section 35.13.7.A.7.e of the Denton Development Code pertaining to acceptable uses of Tree Fund. (DCA15 -0001, Tree Code Amendment, Haywood Morgan) This item will be continued. Vice -Chair Conner stated this item will be continued indefinitely. Commissioner Jim Strange motioned, Commissioner Frank Dudowicz seconded to continue this item indefinitely. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". 5. FUTURE AGENDA ITEMS: Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries 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 agenda for an upcoming meeting. Commissioner Brian Bentley requested the Mobility Plan come back before this Commission to allow more time for discussion. He also requested to hold a discussion on detention and retention ponds. Commissioner Jim Strange stated the I -35 corridor has been placed on the matrix; however, he would specifically like a time for discussion on I -35 improvements are with the Texas Department of Transportation versus City requirements. Munal Mauladad, Assistant Director of Planning and Development, acknowledged the request. Commissioner Frank Dudowicz requested discussion on street plans and improvement plans. Mauladad acknowledged. There was no further discussion. Vice -Chair Conner adjourned the Regular Meeting at 8:25 p.m. 11 sllegal\our documents\ordinances\1 5\11 5-0013 ordinance.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING A CHANGE IN THE ZONING CLASSIFICATION FROM A NEIGHBORHOOD RESIDENTIAL 4 (NR -4) ZONING DISTRICT AND USE CLASSIFICATION TO A COMMUNITY MIXED USE (CM- G) ZONING DISTRICT AND USE CLASSIFICATION ON APPROXIMATELY 8.04 ACRES OF LAND GENERALLY LOCATED ON THE WEST SIDE OF TEASLEY LANE (FM 2181), APPROXIMATELY 600 FEET NORTH OF HICKORY CREEK ROAD, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; ADOPTING AN AMENDMENT TO THE CITY'S OFFICAL ZONING MAP; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z15 -0013) WHEREAS, Winkelmann & Associates, Inc., has applied for a zoning change on approximately 8.04 acres of land legally described in Exhibit "A ", attached hereto and incorporated herein by reference (hereinafter, the "Property ") from a NR -4 zoning district and use classifications to a CM -G zoning district and use classification; and WHEREAS, on July 8, 2015, the Planning and Zoning Commission, in compliance with the laws of the State of Texas, have given the requisite notices by publication and otherwise, and have held due hearings and afforded full and fair hearings to all property owners interested in this regard, and have recommended approval (5 -0) of the change in zoning district and use classification; and WHEREAS, on August 4, 2015, the City Council likewise conducted a public hearing as required by law, and finds that the request meets and complies with all substantive and procedural standards set forth in Section 35.3.4 of the Denton Development Code, and is consistent with the Denton Plan and the Denton Development Code; and WHEREAS, the Planning and Zoning Commission and the City Council of the City of Denton, in considering the application for a change in the zoning classification of the property, have determined that the proposed use is in the best interest of the health, safety, morals, and general welfare of the City of Denton, and accordingly, the City Council of the City of Denton is of the opinion and finds that said zoning change is in the public interest and should be granted as set forth herein; 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 zoning district and use classification for the Property is hereby changed from NR -4 to CM -G. SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning district and use classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person, firm, partnership or corporation violating any provision of this ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by fine in a sum not exceeding $2,000.00 for each offense. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. That an offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Denton Code of Ordinances, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 7. In compliance with Section 2.09(c) of the Denton Charter, 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 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY 2015. CHRIS WATTS, MAYOR Br `— /Vu un d k M, 'U � tr4iti,�l Q Exhibit A Legal Description Being all that certain lot, tract or parcel of land situated in the Eli Pickett Survey, Abstract Number 1018 in the City of Denton, Denton County, Texas and being a part of Parcel 2 of Lexington Park South, an addition to the City of Denton, Denton County, Texas, according to the Conveyance Plat thereof as recorded in Cabinet S, Page 299 of the Plat Records, Denton County, Texas and being a part of a tract of land described in a deed to Dwight Thompson Ministries, Inc., as recorded in County Clerk's File Number 1995 -24387 Real Property Records, Denton County, Texas; the subject tract being more particularly described as follows; BEGINNING at a capped iron rod stamped "4001" found for the Northwest corner of the herein described tract and being the Northeast corner of a tract of land described in a deed to Kimberly Paige Guthrie as recorded in County Clerk's File Number 2012 -98466 Real Property Records, Denton County, Texas and being in the South line of Parcel 1 of said Conveyance Plat and being a tract of land described in a deed to Lexington Park /Denton residential Association, Inc., as recorded in County Clerk's File Number 2006 - 149706 Real Property Records, Denton County, Texas; Thence North 89 degrees 49 minutes 54 seconds East with the South line thereof, along or near a fence passing a capped iron rod stamped "4001" found at 185.92 feet for the Southeast corner of said Lexington Park /Denton Residential Association, Inc. tract and the Southwest corner of Lot 8R, Block L of Lexington Park, Phase Two, an addition to the City of Denton, Denton County, Texas, according to the Replat thereof as recorded in Document Number 2009 -225, Plat records, Denton County, Texas and continuing along said course a total distance of 559.47 feet to a TXDOT monument found for the Northeast corner of the herein described tract and being in the South line of said Lot 811 and in the West Right of Way of F.M. 2181; Thence South 02 degrees 24 minutes 39 seconds East with the West line of said F.M. 2181 a distance of 77.17 feet to a TXDOT monument found at the beginning of a curve to the left having a radius of 22,848.31 feet and a chord bearing and distance of South 01 degrees 58 minutes 58 seconds East, 340.48 feet; Thence along said curve and West line of said F.M. 2181 an arc length of 340.49 feet to a TXDOT monument found; Thence South 04 degrees 21 minutes 33 seconds East a distance of 197.36 feet to point for the Southeast corner of the herein described tract and being in the West line of said F.M. 2181; Thence West a distance of 587.80 feet to a point in the West line of said Guthrie tract; Thence North 00 degrees 09 minutes 33 seconds West with the East line thereof a distance of 612.53 feet to the PLACE OF BEGINNING and enclosing 8.04 acre of land more or less. Z15 -0013 Sprout's Farmers Market - Location Map N l� r 0 625 125 250 r. Z15 -0013 wi �� g' � Feet _ � r �� � a 11 �j w . DENTON r' ' pia uw Vtll mrcwm���og d�r�pv reo °V�mil ruN &R6S Date: 7/2/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Z15 -0013 Sprout's Farmers Market - Zoning Map ,�,/��y���, ®j} 0 62.5 125 250 ' + g ��^ Z15-0013 1111111 NR-4 PD W. Feet e h CM—G N R -6 RD -5X NR -2 IMESEN NRMU 5'��� Y; DENTON ' fF r �...� . Yr.a , . �w.if � Vv II enorig DF vre. Vmim rN &Ra Date: 7/2/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the Cily of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Z15 -0013 Sprout's Farmers Market - Future Land Use Map o� MDOC 0 0 WI Il/l_i IJQ 0 0 Z15 -0013 N "° r' W 0 62.5 125 250 Feet g -� E 'V4 5 "u Low Residential fw�, �k a l� ENT Community Mixed Use �Fa 5 "� '' � ,f /�1 Wft� UW Qt ll Ntl iB�U g DtF pP0 "G,f1lmtl btlb. Guy ";'x i�... ._t �......�I Date: 7/2/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Z15 -0013 Sprout's Farmers Market - ESA Map 125 250 Z15 -0013 Habitat w � Feet � �e� � � 9f. �� �a Stream Buffers 4, fw";71 1, Flood Plain 5' I ,r° DENON tl ..... t i Date: 7/2/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Neighborhood Residential 4 Permitted Uses RESIDENTIAL: P Agriculture, Single- family Dwellings, Community Homes for the Disabled L(1), SUP Accessory Dwelling Units L(3) Duplexes L(7) Livestock SUP Attached Single- family Dwellings COMMERCIAL: P Home Occupation, Outdoor Recreation L(38) Temporary Uses INDUSTRIAL: L(27), SUP Gas Wells INSTITUTIONAL: P Parks and Open Space, Churches L(25) Basic Utilities SUP Semi - Public Halls, Clubs, and Lodges, Adult or Child Day Care, Kindergarten, Elementary Schools, WECS P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(1) — Subject to the following criteria: 1. The proposal must conform with the overall maximum lot coverage and setbacks requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed one per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1,000 square feet 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 the DDC. 5. The maximum GHFA of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than 10 acres in size. An SUP is not required for such an accessory residential structure where the lot size is equal to or greater than 10 acres. L(3) — In a subdivision of two acres or more, up to two units may be attached by a common wall if the lots which contain the attached structure do not abut the perimeter lot lines of a subdivision, the individual common wall units are on separate lots designed to be sold individually, and the comply with Subchapter 13. Additionally, units must have the appearance of a single - family residence from the street. L(7) — Limited to two animals on parcels one to three acres in size. Additional animals may be added at a rate of one per each acre over three acres. L(25) — If proposed use is within 200 feet of a residential zone, approval is subject to an SUP. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(38) — Must meet the requirements of Section 35.12.9. Community Mixed Use General (CM -G) Permitted Uses RESIDENTIAL: P Agriculture, Dwellings Above Businesses, Live/Work Units, Community Homes for the Disabled, L(4) & L(6) Multifamily L(7) Livestock COMMERCIAL: P Hotels, Motels, Bed and Breakfast, Retail Sales and Service, Restaurant, Private Club, Bar, Drive - through Facility, Professional Services and Offices, Quick Vehicle Servicing, Vehicle Repair, Auto and RV Sales, Laundry Facilities, Outdoor Recreation, Indoor Recreation, Commercial Parking Lots, Administrative or Research Facilities, Broadcasting of Production Studio L(38) Temporary Uses SUP Movie Theaters, Major Event Entertainment INDUSTRIAL: P Printing /Publishing, Bakeries, Veterinary Clinics L(27), SUP Gas Wells INSTITUTIONAL: P Community Service, Parks and Open Space, Churches, Semi - public Halls, Clubs, and Lodges, Business/Trade School, Adult or Child Day Care, Kindergarten, Elementary School, Middle School, High School, Colleges, Conference /Convention Centers, Medical Centers, Mortuaries SUP Basic Utilities, WECS P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(4) — Multifamily is permitted only: 1. With a Specific Use Permit; or 2. As part of a Mixed -Use Development; or 3. As part of Master Planned Community, Existing; or 4. If the development received approval allowing multifamily 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(6) — Permitted only on 2nd story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. L(7) — Limited to two animals on parcels one to three acres in size. Additional animals may be added at a rate of one per each acre over three acres. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(38) — Must meet the requirements of Section 35.12.9. Z15 -0013 Applicant Narrative Winkelmann & Associates, Inc_ Consulting Civil Engineers IN Surveyors April 14, 2015 Planning & Development Department City of Denton, Texas 221 N. Elm St. Denton, TX 76201 RE: Variance Request to Section 35.13.13 #7 Sprout's Farmers Market Shopping Center - N.W. Confer of Hickory Creek Rd &Tcaasley Ln, (I'M 2�1g l'I Dear Sir or Madam, 1 I iI" i On behalf of Harry Chapman (Developer), we are requesting a variance to section 35.13.13 #7 which sialtos" tlroat� irl� loading ing err unloading of merchandise will be allowed within 100 feet of residential property. (I l The subject tract is the southern portion of a 15.06 acre parcel (parent tract) owned by l'lavrl;lat �°hrbnbpson'Mgta�isgics, Inc, and is currently zoned CM -G (Community Mixed Use - General). l f' i The property directly to the south on the other side of Hickory Creek Road is curmntly7 -oll it CM tr� p�1ar�, subject tract is currently vacant and undeveloped and is bounded on the south side by Hickory Creek Road and on t }]csiast shlq, by lcasl6y Lauac (FM 2181). The subject tract is adjacent to an undeveloped property to the west which is currently zoned Nth %:r.. 11� lb' tract will be bounded on the north side by the remainder of the original 15.06 acre parent tract which shall remain zoned as NR i1 The subject tract lies outside of any FEMA special flood hazard aarc� �ilsil iltgII q is ing t�r yta l °�� blp ; i generally sloped from north to south with elevations ranging from approximately 630 feet to 596 feet. f Existing utility infrastructure in the vicinity of the subject taq� ria assists of an 18 waa r irnain along Teasley Lane to the east and 12" water main along Hickory Creek Road to the south. A 15" gravity "aili'laai,y sewer line runsl�limtl Teasley lane to the east of the subject tract. Storm sewer iufi-astructure exists at the southeast corner of the sulb, Ir�ac�t at the anp ass "section of Teasley Lane and Hickory Creek Road. Denton Municipal Electric has existing infrastructure in place along �btlu ��rafisouth 'rjnd east sides of the subject property, Current site constraints: (reasons why we need the tiriaanc;e) I . Detention will be need for this project so ar og, airia the south east and west corners of the site wit) need to be designated for that purpose, 2. Along Teasley aslcby l unc t1acGc is ail raxh tnag raa'lldy csa a.aradr�� which cannot double as landscape area, which eats up useable land on the mim side ofthe property, Apr outs l araaaac�rs Maarkct. lg2as a spca plr �paurlsaprg acs' uirclnc nu of a certain number of spaces also those spaces must be directly in d "tcrnq of their lbuitding 1 hcrct'ibr with the coroaraints statvd above � t1� � irit�y,bva)� we, in make the proposed development with is with a variance changing the requived distance suaied in scrtron 35, El. Y7 lroab�l l bdI to 50 feet, Below are actions we are proposing to mitigate the developments impact on the current residential pt'1Verty to the west of the site. 1. Per the city ordinance scctaa7fb 35.13.8 B our site is under type C which requires a 15 foot planted area, our site will increase that to 20 feet 2. The site will phmq p6r, city or(hriagnce type D along the west side of the property abutting the residential which is a thicker tree ai should ym,H)lNe arry filar ap }tbplti, please give i a call. Srracerclyw � , � 1 inkebbaann & Assts¢ }'tes, lnc. CC: Harry Chapman — Developer Wpi Winkonlann j 71501 \ \10.5.2.85 \UserFileSSourcc \11832 \140088 \Var °lance Request Letter. docx \Variance Request Letter.docx Z15 -0013 Notification Map ara °mtl mm'm"nnn nnnnumru�,� uw,w� D D 0 n�iM "onnimw+m 0 0 0 0 mm" mni muwwuw. Mwnwmiwauuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuu mwM°"m " Z1 5-0013 N "° r' W g 0 62.5 125 250 Feet 200ft Buffer -� 500ft Buffer 5 '' °Fa' V)I�A AW EN T` PlonnOng DtF O "t,f1lmtl ttlN C�:;:r , Ij /�1 ii� puT Date: 7/2/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. City Hall City of Denton 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com DENT' IN File #: Z15 -0018, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Planning and Development CM/ ACM: Jon Fortune Date: August 4, 2015 SUBJECT Hold a public hearing and consider a rezoning from a Neighborhood Residential 2 (NR -2) district to Community Mixed Use General (CM -G) district on approximately 1.7 acres of land generally located on the east side of North Bonnie Brae Street, approximately 475 feet north of West University Drive (U.S. 380). The Planning and Zoning Commission recommends approval of the request (5 -0). BACKGROUND The applicant is requesting to rezone 1.7 acres from NR -2 to CM -G. This property was formerly part of North Lakes Park but was sold to a private owner in 2015. If approved, the applicant intends to combine the subject property with approximately 14.87 acres at the northeast corner of West University Drive (U.S. 380) and North Bonnie Brae Street to facilitate the development of a commercial shopping center. To comply with the public hearing notice requirements, one (1) notice was sent to property owners within 200 feet of the subject property, five (5) courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the property. The applicant did not hold a neighborhood meeting. OPTIONS 1. Approved as submitted 2. Approve subject to conditions 3. Deny 4. Postpone consideration 5. Table item RECOMMENDATION The Planning and Zoning Commission recommends approval of this request (5 -0). The Development Review Committee recommends approval of this request. PRIOR ACTION/REVIEW (Council, Boards, Commissions) City of Denton Page 1 of 2 Printed on 7/30/2015 File #: Z15 -0018, Version: 1 On July 8, 2015, the Planning and Zoning Commission recommended approval of the rezoning request (5 -0). EXHIBITS I. Planning and Zoning Commission Report 2. Aerial Map 3. Zoning Map 4. Future Land Use Map 5. NR -2 Permitted Uses 6. CM -G Permitted Uses 7. Applicant Narrative 8. Public Notification Map 9. July 8, 2015 Planning and Zoning Commission Minutes 10. Draft Ordinance Respectfully submitted: Aimee Bissett Interim Director, Planning and Development Prepared by: Michael J. Bell Associate Planner City of Denton Page 2 of 2 Printed on 7/30/2015 REQUEST: Hold a public hearing and consider making a recommendation to City Council regarding a rezoning from a Neighborhood Residential 2 (NR -2) zoning district to a Community Mixed Use General (CM -G) zoning district on approximately 1.7 acres of land generally located on the east side of North Bonnie Brae Street, approximately 475 feet north of West University Drive (U.S. 380). OWNER/APPLICANT: SSR Group LP BACKGROUND: The applicant is requesting to rezone 1.7 acres from NR -2 to CM -G. This property was formerly part of North Lakes Park but was sold to a private owner in 2015. If approved, the applicant intends to combine the subject property with approximately 14.87 acres at the northeast corner of West University Drive (U.S. 380) and North Bonnie Brae Street to facilitate the development of a commercial shopping center. SITE DATA: Although formerly part of North Lakes Park, the site was not developed with any public park facilities and is currently undeveloped. An electric transmission line is located along the subject property's North Bonnie Brae frontage and a Stream Buffer Environmentally Sensitive Area (ESA) is located along the subject property's northern boundary. USE OF PROPERTY UNDER CURRENT ZONING: The purpose of the NR -2 zoning district is to permit low density, single- family development with a maximum density of two units per acre. Agriculture, single- family dwellings, community homes for the disabled, home occupations, outdoor recreation, parks, and churches are permitted. Refer to the attachment "NR -2 Permitted Uses" for a detailed list of permitted uses in the NR -2 zoning district. SURROUNDING ZONING AND LAND USES: North: North Lakes Park to the north is zoned NR -2. East: Properties to the east are undeveloped and zoned CM -G. South: To the south is a restaurant and vacant auto dealership, both zoned CM -G. West: Razor Ranch Marketplace to the west is zoned Regional Center Commercial Downtown (RCC -D) and is part of the Razor Ranch Overlay District. COMPATIBILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The CM -G district is primarily a commercial zoning designation intended to provide shopping, services, recreation, employment and institutional facilities for large parts of the city. Supporting residential is also permitted; including dwellings above businesses, live /work units, and multifamily if located on the 2nd story and above when part of a mixed use development or approved with a Specific Use Permit (SUP). Refer to the attachment "CM -G Permitted Uses" for a detailed list of permitted uses in CM -G zoning district. If approved, CM -G would be consistent with the neighboring properties to the south and east. These properties, also zoned CM -G, are part of a larger commercial center located along either side of West University Drive (U.S. 380) between North Bonnie Brae Street and North Elm Street. CM -G is the most suitable zoning district for this property. COMPREHENSIVE PLAN: Per Denton Plan 2030, the subject property is located near the boundary of two future land use designations, "Parks and Open Space" and "Commercial ": "Parks and Open Space" applies to large scale parks and protected open spaces of city -wide significance which are expected to remain as open space in perpetuity. These areas shall follow the guidelines of the Parks, Conservation, and Environment element of Denton Plan 2030 as well as the Parks, Recreation, and Trails System Master Plan. "Commercial" applies to areas of non - residential activity that may not be suitable for the introduction of a mixed -use format. These areas primarily contain auto - centered and stand -alone commercial uses. Development criteria of the Commercial Land Use include: a) The amount of commercial development should be balanced appropriately with existing and proposed residential uses. b) Commercial development should be compatibly designed with adjacent neighborhoods, or in the case of new development, address the street and create an active public realm and sensitivity to the natural context. c) Mixed -use designation with coordinated access management along Denton's arterial streets, collectors, and highways is encouraged. d) Stand -alone big box stores are discouraged. e) The character of this area should be maintained by ensuring that new development is sensitive to the surrounding built and natural context in scale and form as described above. CONSIDERATIONS: The subject property's current NR -2 zoning designation was applied in the 2002 city- wide rezoning when it was part of North Lakes Park. Residential zoning was applied to all major City parks in 2002 to complement surrounding neighborhoods. Due to the Stream Buffer ESA on the property and FEMA floodplain to the north that separate the property from other residential zoning districts, it is unlikely the subject property will develop as residential now that it is under private ownership. Planning Report Z15 -0018 Page 2 of 4 2. The NR -2 zoning district is intended to encourage low - density, single- family development. This type of development would be inappropriate on the subject property due to the existing development pattern of the area and its location between FEMA floodplain to the north and CM -G zoning to the south. The subject property would be better suited for inclusion into the commercially zoned areas to the south. 3. Per Section 35.3.43 of the DDC, zoning changes may be approved if the proposed rezoning conforms to the Future Land Use Element of Denton Plan 2030. Per Denton Plan 2030, the subject property is currently within a Commercial future land use designation. The proposed CM -G zoning conforms to the Future Land Use Element of Denton Plan 2030. 4. Zoning changes may also be approved if the proposed rezoning facilitates the adequate provision of transportation, water, sewers, schools, parks, and other public requirements and public convenience. There is adequate capacity within the City's public infrastructure and services to serve either commercial or single- family development of the site. STAFF RECOMMENDATION: Staff recommends approval of the request as it is consistent with the goals and objectives of the Denton Plan 2030. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. 3. Recommend denial. 4. Table the item. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, one (1) notice was sent to property owners within 200 feet of the subject property, five (5) courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the property. The applicant did not hold a neighborhood meeting. PROJECT TIMELINE: Planning Report Z15 -0018 Page 3 of 4 Business Days Business Subject Date under Days out DRC Review to Applicant Application Received June 6, 2015 - - 1 st Submittal sent to DRC Members June 9, 2015 - - Comments Released to Applicant June 26, 2015 13 - DRC Meeting with Staff July 2, 2015 - - Total Business Days 13 0 Planning Report Z15 -0018 Page 3 of 4 ATTACHMENTS: • Aerial Map • Zoning Map • Future Land Use Map • NR -2 Permitted Uses • CM -G Permitted Uses • Applicant Narrative • Public Notification Map Prepared By: Mike Bell Associate Planner Date: 7/2/15 Reviewed By: PQWV � Ron Menguita, AICP Development Review Committee Administrator Date: 7/2/15 Reviewed By: Munal Mauladad Assistant Director, Planning and Development Date: 7/2/15 Planning Report Z15 -0018 Page 4 of 4 s:Alegal\ our documents\ordinances\1 5\z 15-0018 ordinance.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING A CHANGE IN THE ZONING CLASSIFICATION FROM A NEIGHBORHOOD RESIDENTIAL 2 (NR -2) ZONING DISTRICT AND USE CLASSIFICATION TO A COMMUNITY MIXED USE (CM- G) ZONING DISTRICT AND USE CLASSIFICATION ON APPROXIMATELY 1.7 ACRES OF LAND GENERALLY LOCATED ON THE EAST SIDE OF NORTH BONNIE BRAE STREET, APPROXIMATELY 475 FEET NORTH OF WEST UNIVERSITY DRIVE (U.S. 380) IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; ADOPTING AN AMENDMENT TO THE CITY'S OFFICAL ZONING MAP; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z15 -0018) WHEREAS, SSR Group L.P. has applied for a zoning change on approximately 1.7 acres of land legally described in Exhibit "A ", attached hereto and incorporated herein by reference (hereinafter, the "Property ") from a NR -2 zoning district and use classifications to a CM -G zoning district and use classification; and WHEREAS, on July 8, 2015, the Planning and Zoning Commission, in compliance with the laws of the State of Texas, have given the requisite notices by publication and otherwise, and have held due hearings and afforded full and fair hearings to all property owners interested in this regard, and have recommended approval (5 -0) of the change in zoning district and use classification; and WHEREAS, on August 4, 2015, the City Council likewise conducted a public hearing as required by law, and finds that the request meets and complies with all substantive and procedural standards set forth in Section 35.3.4 of the Denton Development Code, and is consistent with the Denton Plan and the Denton Development Code; and WHEREAS, the Planning and Zoning Commission and the City Council of the City of Denton, in considering the application for a change in the zoning classification of the property, have determined that the proposed use is in the best interest of the health, safety, morals, and general welfare of the City of Denton, and accordingly, the City Council of the City of Denton is of the opinion and finds that said zoning change is in the public interest and should be granted as set forth herein; 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 zoning district and use classification for the Property is hereby changed from NR -2 to CM -G. SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning district and use classification. SECTION 4. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 5. Any person, firm, partnership or corporation violating any provision of this ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by fine in a sum not exceeding $2,000.00 for each offense. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 6. That an offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Denton Code of Ordinances, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 7. In compliance with Section 2.09(c) of the Denton Charter, 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 , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY FOINS APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Exhibit A Legal Description STATE OF TEXAS COUNTY OF DENTON SITUATED in the City of Denton and being a tract of land in the ROBERT BEAUMONT SURVEY, Abstract No. 31, and being a portion of that certain tract conveyed to said City of Denton by deed recorded in Volume 647, Page 245, of the Denton County Deed Records, and said portion being more fully described as follows: BEGINNING at an "RPLS 1640" capped 5/8 "iron rod found In place for the northeast comer of that certain right -of -way for Bonnie Brae Drive conveyed to said City of Denton by Instrument recorded under Denton County Clerk's File No. 2009 -3362, said point being also in the southerly line of said City of Denton tract and the northerly line of that certain tract conveyed to SSR Group by instrument recorded under Cierk's File No. 2013 - 125701; THENCE North 0 degrees, 34 minutes, 55 seconds East with the present east fine of said Bonnie Brae Drive, across a portion of said City of Denton tract, 264.58 feet to an "RPLS 1640" capped 5/8" iron rod set for comer; THENCE South 44 degrees, 25 minutes, 05 seconds East, departing said east line of Bonnie Brae Street, crossing a portion of said City of Denton tract, 14.14 feet to an angle point, from which point an "RPLS 1640" capped 5/8" iron rod set for reference bears North 87 degrees West, 1.11 feet; THENCE continuing across said City of Denton tract, the following courses and distances: South 89 degrees, 25 minutes, 05 seconds East, 10.0 feet to an "RPLS 1640" capped 5/8" iron rod set for the beginning of a curve whose center bears South 0 degrees, 34 minutes, 55 seconds West, 190.0 feet; easterly with said curve, a distance of 45.36 feet to an "RPLS 1640" capped 5/8" iron rod set for the end of said curve; South 75 degrees, 45 minutes, 30 seconds East, 32.30 feet to an "RPLS 1640" capped 5/8" Iron rod set for the beginning of a curve whose center bears North 14 degrees, 14 minutes, 30 seconds East, 200.0 feet; easterly with said curve, a distance of 90.98 feet to an "RPLS 1640" capped 5/8" iron rod set for the end of said curve; North 78 degrees, 11 minutes, 30 seconds East, 44.03 feet to the beginning of a curve whose center bears South 11 degrees, 48 minutes, 30 seconds East, 1500.0 feet; easterly with said curve, a distance of 329.06 feet to the end of said curve; South 89 degrees, 14 minutes, 20 seconds East, 42.06 feet to a point in the southerly line of said City of Denton tract and the noriherty line of that certain tract conveyed to the SSR Group, LP, by deed recorded under County Clerk's File No. 20113-125702; THENCE South 65 degrees, 07 minutes, 15 seconds West with said southerly line of City of Denton tract and northerly line of said SSR Group tract described in instrument in Clerk's File No. 2013- 125702 and continuing with the northerly fine of said SSR Group tract described in Instrument in Clerk's File No. 201 3-125701, in all 662.45 feet to the PLACE OF BEGINNING, and containing 1.6598 acres (72,302 square feet). Site Location / Aerial Map f r- i �J a. 110 220 440 Site W ..__ E � ~f �_r 5„, Feet G4 Parcels ����� uuuuuu�uiiiui����lllllllllllllllll ���� DENTON c�� ... Centerline U 'IllininhtgGleG'ri tirytent -GGIG Z 3 Date: 6/24/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Site Location / Zoning Map NR-2 NR-1 N ��O 110 220 440 Parcels Freeway COD fr Feet u -1,0—UL Primary Major Arterial ETJ1 DENTON Roads ETJ2 j ; _ �� ��n,. � {� V'Iluhnunfin0 Derdiu�tumroz.Unt - GIG Z= Date: 6/24/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Site Location / Future Land Use Map N ��O 110 220 440 Parcels Freeway COD �� Feet Primary Major Arterial ETJ1��a�� Roads ETJ2 DE`,l' TON �� fin,. _{ I'llluhninttng GIepittrytent - GIG Z 3 Date: 6/24/2015 The City of Denton has prepared maps for departmental use. These are not official maps of the City of Denton and should not be used for legal, engineering or surveying purposes but rather for reference purposes. These maps are the property of the City of Denton and have been made available to the public based on the Public Information Act. The City of Denton makes every effort to produce and publish the most current and accurate information possible. No warranties, expressed or implied, are provided for the data herein, its use, or its interpretation. Utilization of this map indicates understanding and acceptance of this statement. Neighborhood Residential 2 Permitted Uses RESIDENTIAL: P Agriculture, Single- family Dwellings, Community Homes for the Disabled L(1), SUP Accessory Dwelling Units L(7) Livestock SUP Manufacture Housing Developments COMMERCIAL: P Home Occupation, L(38) Temporary Uses SUP Equestrian Facilities INDUSTRIAL: L(14) Veterinary Clinics L(27) Gas Wells L(37) Kennels Outdoor Recreation INSTITUTIONAL: P Parks and Open Space, Churches L(25) Basic Utilities SUP Semi - Public Halls, Clubs, and Lodges, Adult or Child Day Care, Kindergarten, Elementary Schools, WECS P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(1) — Subject to the following criteria: 1. The proposal must conform with the overall maximum lot coverage and setbacks requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed one per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1,000 square feet 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 the DDC. 5. The maximum GHFA of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than 10 acres in size. An SUP is not required for such an accessory residential structure where the lot size is equal to or greater than 10 acres. L(7) — Limited to two animals on parcels one to three acres in size. Additional animals may be added at a rate of one per each acre over three acres. L(14) — Uses are limited to no more than 10,000 square feet of gross floor area. L(25) — If proposed use is within 200 feet of a residential zone, approval is subject to an SUP. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(37) — Five acre minimum land area required and no more than 25 kennels per acre allowed, included indoor and outdoor runs. A natural buffer stil is required adjacent to any residential use. L(38) — Must meet the requirements of Section 35.12.9. Community Mixed Use General (CM -G) Permitted Uses RESIDENTIAL: P Agriculture, Dwellings Above Businesses, Live/Work Units, Community Homes for the Disabled, L(4) & L(6) Multifamily L(7) Livestock COMMERCIAL: P Hotels, Motels, Bed and Breakfast, Retail Sales and Service, Restaurant, Private Club, Bar, Drive - through Facility, Professional Services and Offices, Quick Vehicle Servicing, Vehicle Repair, Auto and RV Sales, Laundry Facilities, Outdoor Recreation, Indoor Recreation, Commercial Parking Lots, Administrative or Research Facilities, Broadcasting of Production Studio L(38) Temporary Uses SUP Movie Theaters, Major Event Entertainment INDUSTRIAL: P Printing /Publishing, Bakeries, Veterinary Clinics L(27), SUP Gas Wells INSTITUTIONAL: P Community Service, Parks and Open Space, Churches, Semi - public Halls, Clubs, and Lodges, Business/Trade School, Adult or Child Day Care, Kindergarten, Elementary School, Middle School, High School, Colleges, Conference /Convention Centers, Medical Centers, Mortuaries SUP Basic Utilities, WECS P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(4) — Multifamily is permitted only: 1. With a Specific Use Permit; or 2. As part of a Mixed -Use Development; or 3. As part of Master Planned Community, Existing; or 4. If the development received approval allowing multifamily 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(6) — Permitted only on 2nd story and above, when an office, retail, or other permitted commercial use is on the ground floor along any avenue, collector, or arterial street, otherwise office or retail uses are not required. L(7) — Limited to two animals on parcels one to three acres in size. Additional animals may be added at a rate of one per each acre over three acres. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(38) — Must meet the requirements of Section 35.12.9. Project Narrative The applicant owns a 1.6598 acre tract of land ( "Property ") that is located in the Robert Beaumont Survey, Abstract No. 31, at the southwest corner of North Lakes Park on the East side of Bonnie Brae Street approximately 500' north of University Drive, Denton Texas. See Exhibit A attached. The Property is currently vacant and has never been developed. It was previously part of the North Lakes Park since its purchase by the City. All utilities to the Property will be from University Drive. The Property is currently zoned Neighborhood Residential 2 (NR -2), which is primarily residential development. Residential densities in these areas will average two homes per acre. See Exhibit A attached. The Property is adjacent to the north side of other lands located to the east of Bonnie Brae and along the north of University Drive that are zoned for Community Mixed Use General (CM-G), CM -G zoning provides shopping, services, recreation, employment and institutional facilities that support the surrounding communities. See Exhibit A attached. The location and configuration of the Property and its proximity to the adjacent lands to the south make the NR -2 zoning inappropriate. The future development opportunities appropriate for the Property will be consistent with those uses found in the CM -G zoning District and not NR -2. The Applicant requests that the zoning on the Property be changed from NR -2 to CM -G. Z15-0018 IIATfiffife. Naff 625 125 250 Z1 5-0018 Parcels Freeway 200ft Buffer ROW Primary Major Arterial Roads DENTON 500 ft Buffer Plannung DepoarVne"t . G6 Date: 6/2312015 rhe Cry of Denion has prepared =S,forl ritspaturtantal use These are not offica��,naps "� dus Cdy at Degdon and shmdd not be used ror Is f I f sr'r"'Y'V p,aposes W rather Irsr Wicence p S Ir rense u ,,P6 are Ih =ty f 910 'I'll ffr&de .,,a of[terflaf, makes every effaft to Pro=1"t "nKTIaIh'Ine9,0rDS rent and accurate rrOarmaban popsrbte =ralbes 'k pressed or are pmvicZl of Damon a d haer been a b a to Hie pubie,, based art the Pulbk Morma on Act The Cty and p, t cur tlor the (jai hkasul, via u , or lis ............ n ............. . Ls —Un .......... ............................................................................................................................................................................................................ 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 27 DRAFT Minutes DRAFT Planning and Zoning Commission July 8, 2015 After determining that a quorum was present, the Planning and Zoning Commission convened a Work Session on Wednesday, July 8, 2015 at 4:00 p.m. in the City Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which time the following items were considered: PRESENT: Vice -Chair Frank Conner. Commissioners: Jim Strange, Brian Bentley, Devin Taylor, and Frank Dudowicz. ABSENT: Chair Thom Reece and Commissioner Amber Briggle. STAFF: Athena Green, Darren Groth, Earl Escobar, Ron Menguita, Sophie Huemer, Mike Bell, Munal Mauladad, Julie Wyatt, Ross Culbertson, and Jennifer DeCurtis. Vice -Chair Frank Conner called the meeting to at 4:03 p.m. CLOSED MEETING Vice -Chair Frank Conner opened the Closed Meeting at 4:04 p.m. 1. Consultation with Attorneys —Under Texas Government Code Section 551.071. A. Consult with City's attorneys regarding legal issues associated with the Rayzor Ranch Overlay District zone where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. B. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with the current Gas Well Ordinance, and proposed Gas Well Ordinance amendment, 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 vested rights; impacts of federal and state law and regulations; impacts of gas well drilling upon protected uses and vice - versa; current and proposed extension to moratorium on drilling and production; other concerns about municipal regulatory authority or matters relating to enforcement of the Gas Well Ordinance, both current and proposed; settlement matters concerning gas well drilling in the City; surface development issues involving surface and mineral estates; and legal matters associated with a citizen's initiative ordinance and pending litigation styled George P. Bush, Commissioner, Texas General Land Office v. City of Denton Texas, Cause No. 15- 02058 -362 currently pending in the 362nd District Court of Denton County and Texas Oil and Gas Association v. City of Denton, Cause No. 14- 08933 -431 currently pending in the 431st District Court of Denton County regarding hydraulic fracturing where a public discussion of these legal matters would conflict with the duty of the City's attorneys under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. 1 2 WORK SESSION 3 4 Vice -Chair Conner called the Work Session to order at 5:38 p.m. 5 3. Hold a discussion on complementary amendments to the Denton Development Code, specifically Subchapters 5, 7, 16, and 22, relating to Gas Well Drilling and Production, Definitions, and Procedures, in light of City Council's action to remand DCA14 -0009 back to the Planning and Zoning Commission after the Governor signed House Bill 40 into law on May 18, 2015 (Darren Groth) 6 7 Work Session Item 3 was held before Work Session Items 1 and 2. 8 9 Darren Groth, Gas Well Administrator, presented this request. He provided information on the 10 background, legal framework, zoning implementation, and Gas Well standards implementation. 11 12 The setbacks are a leading concern for all parties within the City. House Bill 40 was signed by 13 Governor Greg Abbott on May 18, 2015. Groth provided the proposed setbacks for residential 14 districts, commercial districts, industrial districts, and master planned community and planned 15 development districts. 16 17 Commissioner Strange questioned the setbacks. Groth stated the existing site setbacks are 600 18 feet, the minimum is 250 feet, and the reverse setback is 500 feet. There was no further 19 discussion. 20 1. Clarification and discussion of agenda items listed in the Regular Session agenda for this meeting„ and discussion of issues not briefed in the written backup materials. 21 22 Sophie Huemer, Assistant Planner, presented the request for SP15 -0002. She provided the 23 location map, zoning map, site plan, and landscape plans. Huemer stated staff recommends 24 approval of this request. There were no questions. 25 26 Sophie Huemer, Assistant Planner, presented the request for SP15 -0003. She provided the 27 location map, zoning map, site plan, landscape plans and elevations. Huemer provided the 28 criteria for approval. Staff recommends approval of this request. The applicant is proposing 29 1,428 square foot of streetscape plaza area. This includes seating, shaded area, additional trees 30 and planters, and a bicycle rack. 31 32 Commissioner Dudowicz referred to the parking requirements, he questioned the number of 33 employees and rooms for the facility. Huemer stated the applicant did not provide the details for 34 the number of employees to be on site. She stated the parking requirements for hospital uses are 35 normally factored one per two patient hospital beds. She stated the applicant can provide further 36 clarification. 2 I Commissioner Bentley questioned if the plaza requirement is particular for this property or the 2 overall development. Huemer stated the plaza developments are done site to site. She stated it is 3 written in the ordinance that every site plan shall provide a streetscape plan. 4 5 Commissioner Bentley questioned if the trees are being double counted for the different 6 requirements. Huemer will provide a response during the Regular Meeting. 7 8 Mike Bell, Associate Planner, presented Public Hearing Item 4A. He provided the request and 9 the plat. There was no further discussion. 10 11 Mike Bell, Associate Planner, presented Public Hearing Item 4B. He provided the location map, 12 zoning map, Future Land Use Map, and criteria for approval. Staff sent out 13 public hearing 13 notices to property owners within 200 feet of the subject site, and 42 courtesy notices to property 14 owners within 500 feet of the subject site. At this time staff has received one returned response in 15 favor of this request. Staff recommends approval of this request. 16 17 Commissioner Conner questioned which area Sprouts would be developing on. Bell stated the 18 hard corner on Hickory Creek Road and Teasley Lane. Conner questioned if the neighboring 19 pharmacy has expressed any concerns. Bell stated he has spoken with him in regards to the 20 request. He stated the neighbor was okay with the proposal. There was no further discussion. 21 22 Mike Bell, Associate Planner, presented Public Hearing Item 4D. He provided the location map, 23 zoning map, Future Land Use Map, and the criteria for approval. Staff sent out one public 24 hearing notice to property owners within 200 feet of the subject site, and five courtesy notices to 25 property owners within 500 feet of the subject site. At this time staff has not received any 26 returned responses. Staff recommends approval of this request. There was no further discussion. 27 28 Mike Bell, Associate Planner, presented Public Hearing Item 4E. Bell provided history on 29 microbreweries. The use is currently classified as light manufacturing. The request is to permit 30 microbreweries downtown without allowing all light manufacturing; require onsite consumption, 31 at least downtown; maintain an appropriate scale for downtown; and not to effect restaurants that 32 brew beer as an accessory item. 33 34 Bell provided the proposed definitions for the use and zoning classification requirements. 35 Bentley stated he likes the proposal. He referred to the definition. He stated retail sales in the 36 definition is not defined. DeCurtis stated it needs to be capitalized so it known it is part of the 37 definition. 38 39 Vice -Chair Conner closed the Work Session at 6:30 p.m. 40 2. Receive a report and hold discussion regarding the RUzor Ranch Overlay District. (Sophie Huemer 41 42 This item has been withdrawn. 43 3 I REGULAR MEETING 2 3 The Planning and Zoning Commission convened a Regular Meeting of the Planning and Zoning 4 Commission of the City of Denton, Texas which was held on Wednesday, July 8, 2015 and 5 began at 6:30 p.m. in the City Council Chambers at City Hall, 215 E. McKinney at which time 6 the following items were considered: 7 8 Vice -Chair Conner called the Regular Meeting to order at 6:35 p.m. 9 10 11 12 13 14 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. CONSENT AGENDA: Staff recommends annroval of the followiniz items because the meet the requirements of the Denton Development Code. Approval of the Consent Agenda _ includes staff recommendations for aprovals and authorizes staff to proceed. The Planning and Zoning Commission has reviewed the applications and has had an opportunity to raise questions regarding the items prior to consideration: A. Consider a Final Plat of Lot 1, Block of the Majestic on McKinney Addition. The approximately 11.4 acre property is generally located The subject property is generally located on the south side of McKinney Street, approximately 1,000 feet west of Mockingbird Lane, within the M. Yoachum Survey, Abstract No. 1142. (FP 15-0008, Majestic on McKinney Apartments, Ross Culbertson) B. Consider a Final Plat of Lot 1, Block A of the Ron's Wrecker & Towing Service Addition. The approximately 1.003 acre property is generally located on the north side of Jim Christal Road, approximately 180 east of Masch Branch Road, within the W. Bryan Survey, Abstract No. 148. (FP15 -0016, Ron's Wrecker and Towing Service, Mike Bell) C. Consider a Preliminary Plat of Robson Ranch, Unit 10 -1 & 10 -2. The approximately 61.23 acre subject property is generally located northwest of Michelle Way Street, approximately 195 feet north of Freeport Drive, within the M. Scurlock Survey, Abstract No. 1141. The project is located within the Robson Ranch Planned Development District 173 (PD -173). (PP15 -0005, Robson Ranch, Unit 10 -1 & 10 -2, Julie Wyatt) D. Consider a Final Plat of Robson Ranch, Unit 10 -1. The approximately 35.75 acre subject property is generally located northwest of Michelle Way Street, approximately 195 feet north of Freeport Drive, within the M. Scurlock Survey, Abstract No. 1141. The project is located within the Robson Ranch Planned Development District 173 (PD -173). (FP15 -0014, Robson Ranch, Unit 10 -1, Julie Wyatt) 4 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 Commissioner Brian Bentley motioned, Commissioner Jim Strange seconded to approve the Consent Agenda items. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". 3. ITEM FOR INDIVIDUAL CONSIDERATION: A. Consider approval of a Site Plan within the Rayzor Ranch South Campus for a restaurant building on proposed future Lot 5, Block A of the Rayzor Ranch Town Center, Phase One. The approximately 1.515 acre site is generally located on the south side of U.S. Hi_ ghway 380 (West University Drive) and 1700 feet east of Interstate Highway 35 (I -35). The subject property is within a Regional Center Commercial Downtown (RCC -D) zoning district and is further encumbered by the Rayzor Ranch Overlay District. (SP15 -0002, Raising Cane's Restaurant, Sophie Huemer) Sophie Huemer, Assistant Planner, presented this request. She provided the location map, zoning map, site plan, and landscape plans. Huemer provided the criteria for approval. Staff recommends approval of this request. There were no questions. Applicant, Lauren Nuffer, Kimley -Horn and Associates, 5750 Genesis Ct., Frisco, Texas. Nuffer thanked staff and this Commission for their work throughout the process. There was no further discussion. Commissioner Frank Dudowicz motioned, Commissioner Jim Strange seconded to approve this request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". "aye ". B. Consider aproval of a Site Plan within the Rayzor Ranch South Campus for a pediatric medical center on proposed future Lot 1, Block A of the Cook Children's Medical Center Addition. The aproximately 3.278 acre site is generally located on the north side of Scripture Street and approximately 1700 feet east of Interstate Hi _ghway 35 (I -35). The subject property is within a Regional Center Commercial Downtown (RCC -D) zoning district and is further encumbered by the Rayzor Ranch Overlay District. (SP15 -0003, Cook Children's Medical Center, Sophie Huemer) Sophie Huemer, Assistant Planner, presented the request for SP15 -0003. She provided the location map, zoning map, site plan, landscape plans and elevations. Huemer provided the criteria for approval. Staff recommends approval of this request. The applicant is proposing 1,428 square foot of streetscape plaza area. This includes seating, shaded area, additional trees and planters, and a bicycle rack. The applicant is present. Staff recommends approval of this request. 5 I Commissioner Bentley questioned if staff has made a determination of the tree count has been 2 doubled. Huemer stated the numbers are correct, they have not be duplicated. 3 4 Sam Hanna, Dunaway and Associates, 550 S. Bailey Street, Fort Worth, Texas. Hanna stated the 5 proposed trees are in addition to the landscape trees to suffice for the plaza. 6 7 Commissioner Dudowicz questioned the number of office spaces and staff for the medical clinic. 8 9 Ted Gupton, Good Fulton and Farrell, 3100 W 7th, Fort Worth, Texas. Gupton stated there are 10 approximately 29 staff members. There are approximately six or seven doctors, which are 11 included in the total 29 staff members. Dudowicz acknowledged. 12 13 Commissioner Taylor questioned the landscape tree count. Hanna stated all the proposed trees 14 count towards the calculation. Huemer stated the parking lot trees can also count towards the 15 overall tree canopy. Taylor acknowledged. 16 17 Commissioner Jim Strange motioned, Commissioner Frank Dudowicz seconded to approve this 18 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 19 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 20 Vice -Chair Frank Conner, "aye ". 21 4. PUBLIC HEARINGS: 22 A. Hold a public hearing and consider a Final Replat of Lot 1R, Block A of the Victor Technologies Addition. The approximately 30.079 acre property is generally located on the southwest corner of Interstate 35 West and Airport Road (FM 1515), within the E. Pulchalski Survey, Abstract No. 996. The property is located within an Industrial Center Employment (IC -E) zoning district. (FR15 -0009, Victor Technologies Addition, Mike Bell) 23 24 Mike Bell, Associate Planner, presented this request. He provided the request and the plat. Bell 25 stated the applicant is present. Vice -Chair Conner opened the Public Hearing. There was no one 26 to speak on this item. Vice -Chair Conner closed the Public Hearing. There was no further 27 discussion. 28 29 Commissioner Brian Bentley motioned, Commissioner Devin Taylor seconded to approve this 30 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 31 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 32 Vice -Chair Frank Conner, "aye ". 33 11 B. Hold a public hearing and consider a recommendation to City Council regarding _ a rezoning request from Neighborhood Residential 4 (NR -4) to Community Mixed Use General (CM- G) on approximately 8.04 acres of land. The subject property is generally located on the west side of Teasley Lane (FM 2181), approximately 600 feet north of Hickory Creek Road. (Z15 -0013, Hickory Creek Shopping Center, Mike Bell) 3 Mike Bell, Associate Planner, presented this request. He provided the location map, zoning map, 4 Future Land Use Map, and criteria for approval. Staff sent out 13 public hearing notices to 5 property owners within 200 feet of the subject site, and 42 courtesy notices to property owners 6 within 500 feet of the subject site. At this time staff has received one returned response in favor 7 of this request. Staff recommends approval of this request. Bell stated the applicant is present. 8 9 Vice -Chair Conner opened the Public Hearing. 10 11 The following individuals spoke during the public hearing: 12 13 Michael Guthrie, 2471 Hickory Creek Road, Denton, Texas. He is opposed to this 14 request. He has concerns with fencing on his property. He has livestock on the property. 15 16 Bell stated there is a proposed eight foot masonry wall that will screen the property. The wall 17 will be located on the western property line. 18 19 There was no further discussion. Vice -Chair Conner closed the public hearing. 20 21 Commissioner Taylor informed Guthrie that this is one step in the review and approval process. 22 He suggested that Guthrie stay tuned for additional steps for predevelopment with City Council. 23 24 Commissioner Devin Taylor motioned, Commissioner Frank Dudowicz seconded to approve this 25 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 26 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 27 Vice -Chair Frank Conner, "aye ". 28 C. Hold a public hearing and consider making a recommendation to City Council regarding an initial zoning of Neighborhood Residential 1 (NR -1) District and a Specific Use Permit (SUP) for a Semi - Public Hall, Club, or Lodge on approximately 10.8 acre site is generally located on the east side of Barthold Road and approximately 2700 feet south of Ganzer Road. (Z15 -0014, Denton Shop with a Cop, Julie Wyatt) 29 30 Julie Wyatt, Assistant Planner, presented this request. She stated there are two projects that will 31 be heard together. She provided the location map, current zoning classification, surrounding area 32 zoning, and Future Land Use Map. Wyatt provided the criteria for approval. Staff sent out two 33 public hearing notices to property owners within 200 feet of the subject site and six courtesy 34 notices to property owners within 500 feet of the subject site. At this time staff has returned one 35 response in opposition of this request. A supermajority vote would be required by City Council. 36 7 I Staff recommends approval of Z15 -0014. Staff recommends approval of S 15 -0005, subject to the 2 following conditions: 1. Limit the hours of meeting times from 8:00 A.M. to 10:00 P.M. Sunday 3 through Thursday and 8:00 A.M. to 11:00 P.M. Friday and Saturday to reduce noise impacts on 4 adjacent properties. 2. Parking must be located to the side or behind the building to retain the 5 residential nature of the property and the area. Parking areas must be screened from adjacent 6 properties with a Type B buffer. A Type B buffer is a 10 -foot planted strip that includes a 7 combination of 5 evergreen and deciduous trees and 30 shrubs per 100 linear feet. 3. Any 8 additional improvements to expand the use other than adding 400 square feet to the existing 9 building for meeting space and restrooms and associated parking improvements will require 10 approval of a new Specific Use Permit. 4. The approval of the SUP is for the Denton Police 11 Officer's Association's Shop with a Cop and cannot be transferred to another entity. 12 13 Commissioner Bentley stated he is in favor of Conditions 3 and 4; however, he has some 14 concerns with Conditions 1 and 2. Wyatt stated the screening could be limited to the parking lot. 15 She stated the property already has six parking spaces. However, they would have to make some 16 changes for American's with Disabilities Act (ADA) parking requirements. 17 18 Commissioner Dudowicz questioned the calculation on the parking space requirements. Wyatt 19 stated they are calculated one parking space per four seats. 20 21 Commissioner Taylor questioned why the Denton Police Department would want a location this 22 far out of town. Wyatt deferred to the applicant. 23 24 Commissioner Taylor questioned if property owners not located within the City are notified. 25 Wyatt stated notices were sent to property owners within 200 feet and 500 feet of the subject site. 26 The public hearing was also noticed in the newspaper. Vice -Chair Conner opened the public 27 hearing. 28 29 The following individuals spoke during the public hearing: 30 31 Lisa McQuinn, 7202 Barthold Road, Krum, Texas. McQuinn stated she is in favor of this 32 request. The applicant will be good neighbors, and nice to have police officers in the area. 33 34 Commissioner Strange questioned McQuinn if she feels it is necessary to have the screen buffer 35 area. McQuinn stated she doesn't feel it is necessary. 36 37 J. R. Merritt, 2946 Ganzer Road, Denton, Texas. Merritt stated he is opposed to this 38 request unless he can gather more information to assure that this will not become another 39 wedding event center. He stated he is not sure if his property is still considered within the 40 City limits or not. Merritt was the one opposed returned response from the Public 41 Notification process. Merritt withdrew his opposition to this request. 42 43 Applicant, Virginia Nichols, City of Denton Police Department, P.O. Box 19103, Denton, Texas. 44 Nichols stated the proposed site is only 12 minutes from the Police Department. They would like 45 to have a location for staff to use for their lunch breaks for a downtime. Many of the officers do E3 I not live in Denton and do not have somewhere to go on their long shifts for downtime. Nichols 2 stated she has spoken with Merritt in regards to the request. 3 4 Commissioner Dudowicz questioned the parking situation. Nichols stated there are currently six 5 parking spaces on the rear of the building that are covered parking spaces. There is one proposed 6 to be converted to an ADA parking space. 7 8 Commissioner Taylor questioned Nichols if she has any concerns with the four conditions on the 9 request. Nichols stated she doesn't have any concerns with those conditions. There was no 10 further discussion. Vice -Chair Conner closed the public hearing. 11 12 Commissioner Bentley stated he would motion to approve this request with the removal of staff's 13 conditions 1 and 2. 14 15 Commissioner Brian Bentley motioned, Commissioner Jim Strange seconded to approve the 16 request for Z15 -0014 and S15 -0005, based on the following conditions: 1. Any additional 17 improvements to expand the use other than adding 400 square feet to the existing building for 18 meeting space and restrooms and associated parking improvements will require approval of a 19 new Specific Use Permit. 2. The approval of the SUP is for the Denton Police Officer's 20 Association's Shop with a Cop and cannot be transferred to another entity. Motion approved (5- 21 0). Commissioner Brian Bentley, "aye ", Commissioner Jim Strange, "aye ", Commissioner Frank 22 Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". 23 D. Hold a public hearing and consider a recommendation to City Council regarding _ a rezoning request from Neighborhood Residential 2 (NR -2) to Community Mixed Use General (CM- G) on approximately 1.7 acres of land. The subject property is generally located on the east side of North Bonnie Brae Street, aproximately 475 feet north of West University Drive (U.S. 380). (Z15 -0018, North Lakes Shopping Center, Mike Bell) 24 25 Mike Bell, Associate Planner, presented this request. Bell provided the location map, zoning 26 map, and Future Land Use Map. He provided the criteria for approval. Staff sent out one public 27 notices to property owners within 200 feet of the subject site, and five courtesy notice to property 28 owners within 500 feet of the subject site. At this time staff has not received any returned 29 responses. Staff recommends approval of this request. 30 31 Vice -Chair Conner opened the Public Hearing. There was no one to speak. Vice -Chair Conner 32 closed the Public Hearing. 33 34 Commissioner Frank Dudowicz motioned, Commissioner Devin Taylor seconded to approve this 35 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 36 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 37 Vice -Chair Frank Conner, "aye ". 38 p] E. Hold a public hearing and consider a recommendation to City Council regarding an amendment to the Denton Development Code to add "Craft Alcohol Production" to the list of zoning uses in Subchapter 5 and to add definitions for "Craft Alcohol Production" and "Restaurant, Brewpub" to Subchapter 23. (DCA15 -0002, Craft Alcohol Production, Mike Bell 1 2 Mike Bell, Associate Planner, presented this request. Bell provided history on microbreweries. 3 The use is currently classified as light manufacturing. The request is to permit microbreweries 4 downtown without allowing all light manufacturing; require onsite consumption, at least 5 downtown; maintain an appropriate scale for downtown; and not to effect restaurants that brew 6 beer as an accessory item. 7 8 Bell provided the proposed definitions for the use and zoning classification requirements. Bell 9 stated staff recommends approval of this request. 10 11 Vice -Chair Conner opened the public hearing. There was no one to speak on the item. Vice - 12 Chair Conner closed the public hearing. 13 14 Bentley stated he has concerns with the definition for the Legal Department to review; he feels 15 that the item should go back for review and then come back before this Commission. He has 16 concerns with onsite consumption and retail goods. Jennifer DeCurtis, Deputy City Attorney, 17 stated onsite consumption would be produced alcohol and retail and other proposed goods would 18 be wholesale. Mike Bell, Associate Planner, stated retail sales was drafted for the quality 19 produced on the site or for merchandising goods. 20 21 Commissioner Bentley stated he had concerns with the working "and /or" in the definition. 22 DeCurtis stated if Bentley would like to modify the wording in the definition it would need to be 23 done in the condition. 24 25 Munal Mauladad, Assistant Director of Planning and Development stated staff looked at the 26 "and /or" component to look at the use independent of, it is an all- encompassing use. The intent 27 was to have the ability not to scrutinize each component or use mentioned in that definition. Staff 28 wants there to be opportunity to consume onsite and purchase items such as Growlers. 29 30 Commissioner Taylor stated changes are going to restrict the activity that we are going for. There 31 needs to be the option to sell food or t- shirts at the location as well. Commissioner Bentley 32 questioned adding the phrase "complimentary products ". Commissioner Taylor stated that could 33 be excluding items though, although it makes sense. 34 35 Mike Bell, Associate Planner, stated if the event were to arise where the definition were 36 questioned, then the applicant could refute the definition and go before the Zoning Board of 37 Adjustment for an interpretation. 38 39 Commissioner Frank Dudowicz motioned, Commissioner Devin Taylor seconded to approve this 40 request as staff submitted. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", 10 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 Commissioner Jim Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". F. Hold a public hearing and consider making a recommendation to the City Council regarding _ an amendment to Section 35.13.7.A.7.e of the Denton Development Code pertaining to acceptable uses of Tree Fund. (DCA15 -0001, Tree Code Amendment, Haywood Morgan) This item will be continued. Vice -Chair Conner stated this item will be continued indefinitely. Commissioner Jim Strange motioned, Commissioner Frank Dudowicz seconded to continue this item indefinitely. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". 5. FUTURE AGENDA ITEMS: Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries 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 agenda for an upcoming meeting. Commissioner Brian Bentley requested the Mobility Plan come back before this Commission to allow more time for discussion. He also requested to hold a discussion on detention and retention ponds. Commissioner Jim Strange stated the I -35 corridor has been placed on the matrix; however, he would specifically like a time for discussion on I -35 improvements are with the Texas Department of Transportation versus City requirements. Munal Mauladad, Assistant Director of Planning and Development, acknowledged the request. Commissioner Frank Dudowicz requested discussion on street plans and improvement plans. Mauladad acknowledged. There was no further discussion. Vice -Chair Conner adjourned the Regular Meeting at 8:25 p.m. 11 Agenda Information Sheet DEPARTMENT: Planning and Development CM/ ACM: Jon Fortune Date: August 4, 2015 SUBJECT Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding an initial zoning district and use classification of Neighborhood Residential 1 (NR -1) and a Specific Use Permit (SUP) for a Semi - Public Hall, Club, or Lodge. The approximately 10.8 acre site is generally located on the east side of Barthold Road and approximately 2700 feet south of Ganzer Road; adopting an amendment to the City's official Zoning Map and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. (Z15 -0014 and S15- 0005). The Planning and Zoning Commission recommended approval of this request (5 -0), subject to conditions. BACKGROUND The applicant, Virginia Nichols with Denton Shop with a Cop, is requesting an initial zoning of Neighborhood Residential 1 (NR -1) and a Specific Use Permit (SUP) in order to change the use of the subject property to a Semi - Public Hall, Club, or Lodge for the Denton Police Officer's Association. The subject property is platted as Lot 14, Block 1 of the Ganzer Estates Addition, and is currently developed with a single- family dwelling. In 2010, it was annexed into the City of Denton and was given a placeholding zoning designation of Rural Residential (RD -5X) District. According to the request, the primary use of the existing single- family dwelling on the site will be a place for Denton Patrol Officers' daily meal breaks during working hours. One to two police officers will use the existing kitchen and restroom facilities at any one time, for a total of approximately 10 Officers in a 24 -hour period. Additionally, General Membership meetings of the Denton Police Officer's Association are proposed to be held four (4) times a year on the site. The meetings last a few hours, and it is anticipated that 12 -15 members will be in attendance at each meeting. These proposed uses fall under the Denton Development Code's (DDC) definition of a Semi - Public Hall, Club, or Lodge, which is not permitted under the current zoning, but is permitted with an SUP in the NR -1 zoning district. In order to accommodate the membership meetings, the applicant proposes a future expansion of 400 square feet to the existing building and handicap accessibility improvements to the parking lot. During the conversion of the existing residential structure to a non - residential use, the applicant must comply with all applicable requirements as they relate to the Building Permit. Staff has analyzed the proposal and has determined that it conforms to the conditions for approval set forth in City of Denton Page 1 of 3 Printed on 7/30/2015 File M Z15 -0014 & S15 -0005, Version: 1 Sections 35.3.4.B and 35.6.4 of the Denton Development Code (DDC), is compatible with the adjacent land uses, and meets the goals of the Denton Plan 2030. The surrounding property includes agricultural uses and an established single- family neighborhood of Ganzer Estates. An initial zoning to NR -1 district allows a maximum permitted density of one dwelling unit per acre, consistent with the rural residential character of the area and the existing development pattern. The proposed use will not generate a nuisance to the surrounding area, but is merely a use for occasional meetings and daily meal breaks. The Denton Plan 2030 designates the subject property and the surrounding area as Rural Areas. This designation includes farms and ranches with very low - density residential and rural commercial uses. A maximum density of one dwelling unit per acre may be permitted in order to provide for conservation development, a development pattern whereby smaller lots are clustered together to permanently protect rural open space. The proposed NR -1 district allows for a maximum density of one dwelling unit per acre, meeting the goal of low - density development in the Rural Areas. Furthermore, the proposed Denton Shop with a Cop is low - intensity, generating minimal traffic and reusing the existing single- family dwelling. The use creates little impact on the surrounding development pattern or scale, allowing the adjacent properties to maintain a rural character consistent with the Future Land Use Designation. A thorough analysis of the proposed land use and its impacts to the surrounding area is reflected in the Staff Analysis. To comply with the public hearing notice requirements, two (2) notices were sent to property owners within 200 feet of the subject property, six (6) courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the subject property. As of the writing of this staff report, staff has not received any responses for either in favor or in opposition of the SUP request. A neighborhood meeting was not held; however, the applicant met with 14 of the 16 residents of Ganzer Estates. Per the applicant's narrative, all 14 of those interviewed were not opposed to the request. 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 this request (5 -0), with the following conditions: 1. Any additional improvements to expand the use other than adding 400 square feet to the existing building for meeting space and restrooms and associated parking improvements will require approval of City of Denton Page 2 of 3 Printed on 7/30/2015 File #: Z15 -0014 & S15 -0005, Version: 1 a new Specific Use Permit. 2. The approval of the Specific Use Permit is for the Denton Police Officer's Association's Shop with a Cop and cannot be transferred to another entity. The Development Review Committee recommends approval of this request, with the following conditions: 1. Limit the hours of meeting times from 8:00 A.M. to 10:00 P.M. Sunday through Thursday and 8:00 A.M. to 11:00P.M. Friday and Saturday to reduce noise impacts on adjacent properties. 2. Parking must be located to the side or behind the building to retain the residential nature of the property and the area. Parking areas must be screened from adjacent properties with a Type B buffer. A Type B buffer is a 10 -foot planted strip that includes a combination of 5 evergreen and deciduous trees and 30 shrubs per 100 linear feet. 3. Any additional improvements to expand the use other than adding 400 square feet to the existing building for meeting space and restrooms and associated parking improvements will require approval of a new Specific Use Permit. 4. The approval of the SUP is for the Denton Police Officer's Association's Shop with a Cop and cannot be transferred to another entity. PRIOR ACTION/REVIEW (Council, Boards, Commissions) A public hearing was held at the July 8, 2015 Planning and Zoning Commission meeting. FYHIRITC 1. Staff Analysis 2. Site Location/Aerial Map 3. Zoning Map 4. Future Land Use Map 5. Permitted Uses in Neighborhood Residential 1 6. Permitted Uses in Rural Residential 7. Site Plan 8. Public Notification Map 9. July 8, 2015 Planning and Zoning Commission Meeting Minutes 10. Draft Ordinance Respectfully submitted: Aimee Bissett Interim Director, Planning and Development Prepared by: Julie Wyatt Associate Planner City of Denton Page 3 of 3 Printed on 7/30/2015 Item 5C Planning Report Z15 -0014 & S15- 0005/Denton Shop with a Cop City Council District 2 Planning & Zoning Commission July 8, 2015 REQUEST: Consider making a recommendation to City Council regarding an initial zoning of Neighborhood Residential 1 (NR -1) and a Specific Use Permit (SUP) for a Semi - Public Hall, Club, or Lodge on an approximately 10.8 acre site generally located on the east side of Barthold Road and approximately 2700 feet south of Ganzer Road. APPLICANT: Virginia Nichols representing Denton Shop with a Cop OWNER: Rosa L. Oliveira BACKGROUND: The subject property is platted as Lot 14, Block 1 of the Ganzer Estates Addition, and is currently developed with a single- family dwelling. In 2010, it was annexed into the City of Denton and was given a placeholding zoning designation of Rural Residential (RD -5X) District. The applicant is seeking an initial zoning and SUP in order to change the use of the site to a Semi -Public Hall, Club, or Lodge for the Denton Police Officer's Association. According to the applicant, the primary use of the building will be a place for daily meal breaks by Denton Patrol Officers. These meal times are during Officers' working hours. One (1) to two (2) police officers will use the existing kitchen and restroom facilities at any one time, for a total of approximately 10 officers using the site in a 24 -hour period. Additionally, General Membership meetings of the Denton Police Officer's Association are proposed to be held four (4) times a year on the site. The meetings last a few hours, and it is anticipated that 12 -15 members will be in attendance at each meeting. In order to accommodate the membership meetings, the applicant proposes a future expansion of 400 square feet to the existing building. These proposed uses fall under the Denton Development Code's (DDC) definition of a Semi - Public Hall, Club, or Lodge. According to the DDC, a Semi- Public Hall, Club, or Lodge is, "A structure or facility owned or operated for special educational or recreational purposes, but not primarily for profit or to render a service that is customarily carried on for gain." Under current zoning of RD -5X, the proposed use of Semi - Public Hall, Club, or Lodge is not permitted, but the use is permitted in the NR -1 District with an SUP. Therefore, the applicant is requesting to rezone the subject property to NR -1 and obtain an SUP. SITE DATA: The subject property is approximately 10.8 acres and is located on the east side of Barthold Road and approximately 2700 feet south of Ganzer Road. The parcel is rectangular in shape and has approximately 300 feet of frontage on Barthold Road. The property is developed with one single- family dwelling, a gravel driveway, and a garden shed. The total amount of impervious lot coverage is approximately 4000 square feet. USE OF PROPERTY UNDER CURRENT ZONING: The RD -5X District is intended to maintain an area of rural residential uses within the City of Denton. The purpose is to preserve and protect the farming, forest, and environmentally and scenic values from incompatible development. The minimum lot size in RD -5X is five (5) acres, and the maximum lot coverage except for agricultural buildings is 15 %, thus preserving much of the open, rural space. Agriculture, Single - family Dwellings, Live /Work Units, Sale of Products Grown on Site, Outdoor Recreation Equestrian Facilities, Wholesale Nurseries, Veterinary Clinics, Parks, Open Space, and Churches are permitted uses in RD -5X. Livestock, Bed and Breakfast, and Kennels are permitted with limitations, and Administrative or Research Facilities and Feed Lots are permitted with a Specific Use Permit (SUP). SURROUNDING ZONING AND LAND USES: North: Property to the north is located in the Extraterritorial Jurisdiction (ETJ) and is developed with single- family dwellings. East: Property to the east is zoned RD -5X and is developed with an event center and a ranch. South: Property to the south is located in the Extraterritorial Jurisdiction (ETJ) and is developed with single- family dwellings. West: Property to the west is located in the Extraterritorial Jurisdiction (ETJ) and is used for agriculture. COMPATIBILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The purpose of the Neighborhood Residential land uses is to preserve and protect existing neighborhoods and to ensure that any new development is compatible with existing land uses, patterns, and design standards. The proposed NR -1 District is a large -lot residential zoning designation, permitting a maximum density of 1 dwelling unit per acre in subdivisions which contain more than two (2) acres. Open space is preserved with a maximum lot coverage of 30 %. The uses permitted in the NR -1 are residential in nature and compatible with the existing adjacent neighborhood and agricultural land. The NR -1 District permits Agriculture, Single- family Dwellings, Outdoor Recreation, Parks and Open Space, and Churches by right. Livestock, Kennels, and Veterinary Clinics are permitted with a limitation. Accessory Dwelling Units are permitted with a limitation and require an SUP. An SUP is required for Equestrian Facilities, Semi - Public Halls, Clubs, and Lodges, Adult or Child Day Care, Kindergarten, and Elementary School. The surrounding established single- family neighborhood of Ganzer Estates, which lies partially within the ETJ, has developed a rural residential character with 16 large lots ranging in size from approximately 1.3 acres to 11 acres. An initial zoning to NR -1 would allow additional density, but maintain the integrity of the rural residential character of the area and the existing development pattern of the area. Planning Report Z15 -0014 & S15 -0005 Page 2 of 8 The proposed use of Semi - Public Hall, Club, or Lodge requires an SUP. Typically, a use that requires an SUP is an appropriate use for the zoning district, but may require some conditions to ensure compatibility, especially to mitigate possible nuisances. By the applicant's description, the proposed use will not generate a nuisance to the surrounding area, but is merely a use for occasional meetings and daily meal breaks. These activities will neither significantly contribute to peak hour traffic nor generate additional light and noise. Furthermore, by utilizing the existing single - family dwelling for the proposed use, the current development pattern and building scale will remain the same. Therefore, the intensity and scale of the proposed use is compatible within a residential area. However, conditions may be placed on the use by the SUP to increase the compatibility with the adjacent property owners and mitigate nuisances such as visual impacts of parked cars. COMPREHENSIVE PLAN: Per the Denton Plan 2030, the Future Land Use designation of the subject property is Rural Areas. This designation includes farms and ranches with very low - density residential and rural commercial uses. A maximum density of one dwelling unit per acre may be permitted in order to provide for conservation development, a development pattern whereby smaller lots are clustered together to permanently protect rural open space. According to Denton Plan 2030, "The largely scenic character of this area should be maintained by ensuring that new development is sensitive to the surrounding built environment and natural context in scale and form." The proposed request conforms to the Future Land Use Designation of the subject property. NR- 1 allows for a maximum density of one dwelling unit per acre, meeting the low - density goals in the Future Land Use Designation or Rural Areas. Uses in NR -1 encourage residential development while maintaining the rural character with additional uses such as Kennels and Veterinary Clinics. Approval of an SUP for Semi - Public Halls, Clubs, and Lodges is consistent with the Future Land Use Designation of Rural Areas, as it meets the intent is to encourage very low - density residential and rural commercial uses. CONSIDERATIONS: 1. The applicant would like to use the approximately 2,700 square foot existing building on the subject property as a meeting site for the Denton Police Officer's Association. The proposed activities include: General Membership meetings for 12 -15 officers held 4 times a year • Daily meal breaks during working hours for approximately 1 to 2 Officers at any one time 2. These uses are defined as Semi - Public Halls, Clubs, and Lodges. The current zoning designation of RD -5X does not permit Semi - Public Halls, Clubs, and Lodges. As such, the applicant has requested a zoning change to NR -1, which is permitted with an approval of an SUP. A zoning change to NR -1 would allow additional density, but the maximum permitted density of one (1) dwelling unit per acre will maintain the integrity of the rural residential character of the area and the existing development pattern. Planning Report Z15 -0014 & S15 -0005 Page 3 of 8 3. An as -built survey reflecting the structures on the property is attached to the report. Although the applicant has stated that existing building will be used, a 400 -foot expansion to accommodate membership meetings and restrooms is contemplated. 4. During the conversion of the existing residential structure to a non - residential use, the applicant must comply with all applicable requirements as they relate to the Building Permit. 5. It should be noted that the proposed NR -1 requires 70% landscape area and 50% tree canopy coverage. The existing development on the site meets the minimum landscape area; however, it does not meet the tree canopy coverage. Due to the size of the lot, 50% tree canopy coverage requires approximately 5.5 acres of coverage. Section 35.13.7.B.7 of the DDC allows for an artificial lot line to be created to provide relief for large sites if the spirit and intent of the landscaping and tree canopy requirements are met. The artificial lot line will reduce the tree canopy coverage significantly because the 50% tree canopy coverage requirement will be based off a smaller area. 6. Per Section 35.3.4.13 of the DDC, zoning changes may be approved if the proposed rezoning conforms to the Future Land Use element of the Denton Plan 2030, and that the proposed rezoning facilitates the adequate provision of transportation, water, sewers, schools, parks, and other public requirements and public convenience. The proposed NR -1 zoning conforms to the Denton Plan 2030 and can facilitate adequate provision of transportation and public facilities. 7. Per Section 35.6.4 of the DDC, an SUP may be granted if the proposed use conforms, or can be made to conform through the imposition of conditions, with all standards within the NR -1. Additionally, the use must also be in conformance with The Denton Plan 2030. 8. Per Section 35.6.4. B; a SUP shall be issued if it meets the following conditions: A. 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 proposed use will not be injurious to the use and enjoyment of other property within the vicinity of the site. The surrounding area is generally residential and agricultural in character, and the activities associated with the proposed use will not significantly impact other properties. The request will not directly diminish or impair adjacent property values. B. That the establishment of the specific use will not impede the normal and orderly development and improvement of surrounding vacant property; The undeveloped property to the west is located in the ETJ and is used for agriculture. The activities associated with the proposed use will not impede the normal and orderly development of the area. Planning Report Z15 -0014 & S15 -0005 Page 4 of 8 C. That adequate utilities, access roads, drainage and other necessary supporting facilities have been or will be provided; The site is accessed via off of Barthold Road by an existing gravel driveway, and no additional access points will be required for the proposed use. Future impacts on public infrastructure or public facilities or services will be further evaluated and addressed with the review of building permits, prior to construction of any improvements on the subject property. D. 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; Based upon the number of attendees at the proposed General Membership meetings, 6 parking spaces will be required for the use. Per Section 35.14.9 of the DDC, parking lots in residential zones that contain less than 10 parking spaces may be surfaced with a permeable material such as crushed rock, thereby allowing the existing gravel driveway and parking area to remain. This driveway and parking material is similar to the adjacent properties and is compatible with the adjacent development. E. That adequate nuisance prevention measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration; The proposed use does not generate additional odors, fumes, dust, or vibration that exceeds what a typical residential use would generate, and therefore will not create a negative impact. Staff recommends limiting the hours of meeting times to reduce any noise impacts to the adjacent properties. F. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and The proposed development shall comply with light and glare requirements outlined in the DDC and compliance with the DDC will be reviewed with the Building Permit plan application. G. That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property. The proposed use and activities create minimal nuisance for the adjacent properties; however, staff recommends additional landscaping along the southern edge of the existing parking area to screen parked vehicles from the property to the south. 4. Per Section 35.6.4. C; a SUP shall be issued if adequate capacity of infrastructure can and will be provided to and through the subject property. Planning Report Z15 -0014 & S15 -0005 Page 5 of 8 A water well is provided for the properties located within Ganzer Estates and an aerobic septic system is located on the subject property. 5. Per Section 35.6.4. D; a SUP shall be issued if the Special Use is compatible with and will not have an adverse impact on the surrounding area. When evaluating the effect of the proposed use on the surrounding area, the following factors shall be considered in relation to the target use of the zone: A. Similarity in scale, bulk, and coverage. The applicant intends to use the existing buildings and driveway with an additional 400 square feet added to the main building. This scale, bulk, and coverage are similar to the adjacent properties and compatible with the rural residential character of the area. B. Generation of traffic and effects on surrounding streets. Increases in pedestrian, bicycle, and mass transit use are considered beneficial regardless of capacity of facilities. The proposed use of the property will not greatly increase the traffic on the surrounding street network. The property will be accessed daily by 1 to 2 Police Officers at a time, generating a minimal daily impact to the surrounding streets. The general membership meetings will generate more traffic— approximately 12 -15 Police Officers will attend the meetings —but their infrequency will not create a sustained impact to the surrounding streets and properties. C. Architectural compatibility with the impact area. The existing building has a "barn" architectural style, and is compatible with the rural character of the area. The applicant intends to use this existing building with an additional 400 square feet added to the main building. Any additions to the building will require the appropriate building permits and must comply with all applicable regulations. D. Air quality, including the generation of dust, odors, or other environmental pollutants. The proposed use does not generate dust, odors, or other environmental pollutants, and therefore will not create a negative impact. E. Generation of noise, light, and glare. The proposed use must meet the noise requirements outlined in the City's Code of Ordinances and the light and glare requirements outlined in 35.13.12 of the DDC. Additionally, staff recommends limiting the hours of meeting times to reduce any noise impacts to the adjacent properties. F. The development of adjacent properties as envisioned in The Denton Plan 2030. Planning Report Z15 -0014 & 515 -0005 Page 6 of 8 The Denton Plan 2030 designates the subject property and the surrounding area as Rural Areas. The intent is to encourage very low - density residential and rural commercial uses. The applicant proposes activities which are low - intensity, and the reuse of the existing single - family dwelling will have little to no impact on the surrounding built environment, allowing the adjacent properties to develop with a rural character. G. Other factors found to be relevant to satisfy the requirements of this Chapter. Staff has reviewed the SUP and determined the request conforms, or will be made to conform during permitting, to applicable DDC requirements. 9. A neighborhood meeting was not held; however, the applicant met with 14 of the 16 residents of Ganzer Estates. Per the applicant's narrative, all 14 of those interviewed were not opposed to the request. 10. The request conforms to the Future Land Use designation of Rural Areas and meets the goals of the Denton Plan 2030. NR -1 allows for a maximum density of one dwelling unit per acre, meeting the low - density goals in the Future Land Use Designation of Rural Areas. In addition, approval of an SUP for Semi - Public Halls, Clubs, and Lodges is consistent with the Future Land Use Designation of Rural Areas. STAFF RECOMMENDATION: Staff recommends approval of the request, as it is compatible with the surrounding property and is consistent with the goals and objectives of the Denton Plan 2030. Based upon the SUP approval criteria and the adjacent land uses, staff recommends the following conditions to be placed upon the subject property: 1. Limit the hours of meeting times from 8:00 A.M. 10:00 P.M. Sunday through Thursday and 8:00 A.M. to 11:00P.M. Friday and Saturday to reduce noise impacts on adjacent properties. 2. Parking must be located to the side or behind the building to retain the residential nature of the property and the area. Parking areas must be screened from adjacent properties with a Type B buffer. A Type B buffer is a 10 -foot planted strip that includes a combination of 5 evergreen and deciduous trees and 30 shrubs per 100 linear feet. 3. Any additional improvements to expand the use other than adding 400 square feet to the existing building for meeting space and restrooms and associated parking improvements will require approval of a new Specific Use Permit. 4. The approval of the SUP is for the Denton Police Officer's Association's Shop with a Cop and cannot be transferred to another entity. OPTIONS: 1. Recommend approval as submitted. 2. Recommend approval subject to conditions. 3. Recommend denial. Planning Report Z15 -0014 & S15 -0005 Page 7 of 8 4. Table the item to a date certain. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, two (2) notices were sent to property owners within 200 feet of the subject property, six (6) courtesy notices were sent to physical addresses within 500 feet of the subject property, a notice was published in the Denton Record Chronicle, and signs were placed on the subject property. PROJECT TIMELINE: ATTACHMENTS: • Permitted Uses in Rural Residential 5X • Permitted Uses in Neighborhood Residential 1 • Aerial Map • Zoning Map • Future Land Use Map • Site Plan • Public Notification Map Prepared By: Reviewed By: Julie Wyatt Assistant Planner Ron Menguita, AICP Development Review Committee Administrator Date: 06/30/15 Reviewed By: Munal Mauladad Assistant Director of Planning and Development Date: XX /XX /XX Planning Report Z15 -0014 & 515 -0005 Page 8 of 8 Business Business Days Subject Date under Days out DRC Review to Applicant Application Received May 6, 2015 - - 1 st Submittal sent to DRC Members May 7, 2015 - - Comments Released to Applicant May 22, 2015 12 - DRC Meeting with Staff May 28, 2015 - - Total Business Days 12 0 ATTACHMENTS: • Permitted Uses in Rural Residential 5X • Permitted Uses in Neighborhood Residential 1 • Aerial Map • Zoning Map • Future Land Use Map • Site Plan • Public Notification Map Prepared By: Reviewed By: Julie Wyatt Assistant Planner Ron Menguita, AICP Development Review Committee Administrator Date: 06/30/15 Reviewed By: Munal Mauladad Assistant Director of Planning and Development Date: XX /XX /XX Planning Report Z15 -0014 & 515 -0005 Page 8 of 8 s:Alegal \our documents \ordinances \15\/15 -0014 s15 -0005 ordinance.doex ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, REGARDING AN INITIAL ZONING DISTRICT AND USE CLASSIFICATION OF NEIGHBORHOOD RESIDENTIAL 1 (NR -1) AND A SPECIFIC USE PERMIT (SUP) FOR A SEMI- PUBLIC HALL, CLUB, OR LODGE. THE APPROXIMATELY 10.8 ACRE SITE IS GENERALLY LOCATED ON THE EAST SIDE OF BARTHOLD ROAD AND APPROXIMATELY 2700 FEET SOUTH OF GANZER ROAD; ADOPTING AN AMENDMENT TO THE CITY'S OFFICIAL ZONING MAP AND PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z15 -0014 AND 515- 0005). WHEREAS, a request was made by Virginia Nichols for an initial zoning district and use classification of Neighborhood Residential 1 (NR -1) on approximately 10.8 acres of land and to allow a Specific Use Permit for a Semi- Public Hall, Club, or Lodge use located at Lot 14, Block 1, Ganzer Estates in the City of Denton, Denton County, Texas; and WHEREAS, after notice published, a public hearing was held before the Planning and Zoning Commission in accordance with State law on July 8, 2015, whereby the Planning and Zoning Commission recommended approval (5 -0) of the requested initial zoning district and use classification and Specific Use Permit; and WHEREAS, after notice published, a public hearing was held before the City Council in accordance with State law and the City Council hereby finds that the request is consistent with the Denton Plan and federal, state, and local law and that the Applicant has agreed to comply with all provisions of the Denton Development Code, as they exist, may be amended, or in the future arising, including but not limited to, this Ordinance, and has further agreed to comply with the additional restrictions and conditions set forth herein; and WHEREAS, the City Council has determined that it will be beneficial to Denton and its citizens to grant the SUP; that such grant will not be detrimental to the public welfare, safety, or health; and that the SUP should be granted; 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 initial zoning district and use classification for the Property shall be Neighborhood Residential 1 (NR -1). SECTION 3. The City's official zoning map is hereby amended to show the change in the zoning district and use classification. SECTION 4. SUP Granted. The Specific Use Permit (SUP) to allow a Semi - Public Hall, Club, or Lodge on the Property is hereby approved, subject to the following conditions: 1. Any additional improvements to expand the use other than adding 400 square feet to the existing building for meeting space and restrooms and associated parking improvements will require approval of a new Specific Use Permit. 2. The approval of the Specific Use Permit is for the Denton Police Officer's Association's Shop with a Cop and cannot be transferred to another entity. SECTION 5. Failure to Comply. Except as otherwise stated above, all terms of the SUP shall be complied with prior to issuance of a Certificate of Occupancy. Failure to comply with any term or condition of the Ordinance will result in the SUP being declared null and void and of no force and effect. SECTION 6. SUP Regulations. Upon notice to the property owner and a hearing before the City Council, a SUP may be revoked or modified if: There is one or more of the conditions imposed by this Ordinance that has not been met or has been violated on the Property; or 2. The SUP was obtained or extended by fraud or deception; or 3. As otherwise permitted by law and /or Denton's Zoning Ordinance. SECTION 7. Effective date of SUP. The SUP shall be effective from and after the effective date of this Ordinance. Upon termination of the SUP, the Property shall cease to be used as provided herein unless another SUP or appropriate zoning has been obtained. SECTION 8. Unlawful use. It shall be unlawful for any person, firm, entity, or corporation to make use of the above - referenced Property in some manner other than as authorized by the Denton Code of Ordinances and this Ordinance. SECTION 9. Penalty. Any person, firm, entity or corporation violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00 for each violation. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. The penal provisions imposed under this Ordinance shall not preclude Denton from filing suit to enjoin the violation and it retains all legal rights and remedies available to it under local, state and federal law. SECTION 10. Severability. 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 the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 11. Effective Date of Ordinance. 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 , 2015. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: to .�G,��J pw 150 300 600 mmmmommmmmmmmmm Feet CITY DENTON LOCATION MAP Project No: Z15 -0014 Denton Shop with a Cop [ I )", lh S Vl'n I ,, V i,�201 1, C,-),V1`, 00 14 [),),, I 'hop m It, a C,p V � I S Ma p,V 1 ', 00 14 xd Vicinity Map .. ........ ... . , . .. ... .... V nyV201 C,-), V 1 00 14 lJentrn S, i It e C,p V IS M, p,V 1 00 14 xd 150 300 600 mmmmommmmmmmmmm Feet CITY DENTON LOCATION MAP Project No: Z15 -0014 Denton Shop with a Cop [ I )", lh S Vl'n I ,, V i,�201 1, C,-),V1`, 00 14 [),),, I 'hop m It, a C,p V � I S Ma p,V 1 ', 00 14 xd Vicinity Map Neighborhood Residential Permitted Uses RESIDENTIAL: P Agriculture, Single- family Dwellings, Community Homes for the Disabled L(7) Livestock L(1), SUP Accessory Dwelling Units COMMERCIAL: P Home Occupation, Outdoor Recreation L(38) Temporary Uses SUP Equestrian Facilities INDUSTRIAL: L(37) L(14) L(27) Kennels Veterinary Clinics Gas Wells INSTITUTIONAL: P Parks and Open Space, Churches L(25) Basic Utilities L(41) WECS (Free Standing Monopole Structure) L(42) WECS (Building Mounted SUP Semi - Public, Halls, Clubs, and Lodges, Adult or Child Day Care, Kindergarten, Elementary School, P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(1) — Subject to the following criteria: 1. The proposal must conform with the overall maximum lot coverage and setbacks requirements of the underlying zone. 2. The maximum number of accessory dwelling units shall not exceed one per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, and shall not exceed 1,000 square feet 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 the DDC. 5. The maximum GHFA of the accessory residential structure shall not exceed 50% of the GHFA of the primary residence on the lot, where the lot size is equal to or greater than 10 acres in size. An SUP is not required for such an accessory residential structure where the lot size is equal to or greater than 10 acres. L(7) — Limited to two animals on parcels one to three acres in size. Additional animals may be added at a rate of one per each acre over three acres. L(14) — Uses are limited to no more than 10,000 square feet of gross floor area. L(25) — If proposed use is within 200 feet of a residential zone, approval is subject to an SUP. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(37) — Five acre minimum land area required and no more than 25 kennels per acre allowed, included indoor and outdoor runs. A natural buffer stil is required adjacent to any residential use. L(38) — Must meet the requirements of Section 35.12.9. L(41) — Lots where the proposed WECS will be located shall have a minimum lot area of two acres. A maximum of one WECS is permitted by right. Multiple WECS are permitted only with approval of an SUP. L(42) — Building mounted WECS may not extend higher than 10 feet above where the WECS is mounted on the building. The height shall be measured from the base of the WECS where it is mounted on the building to the highest point of the arc of the blades' elevation. If the WECS does not use blades, then height is measured from the base of the WECS where it is mounted on the building to the highest point of the WECS. Rural Residential Permitted Uses RESIDENTIAL: Agriculture, Single- family Dwellings, Accessory Dwelling Units, Live /Work P Units, Community Homes for the Disabled, Manufactured Housing Developments L(7) Livestock SUP Group Homes COMMERCIAL: P Home Occupation, Sale of Products Grown on Site, Equestrian Facilities, Outdoor Recreation L(10) Bed and Breakfast L(38) Temporary Uses SUP Administrative or Research Facilities, Broadcasting or Production Studio INDUSTRIAL: P Wholesale Nurseries, Veterinary Clinics L(14) Kennels L(27) Gas Wells SUP Feed Lots INSTITUTIONAL: P Basic Utilities, Parks and Open Space, Churches, Adult or Child Day Care, Kindergarten, Elementary School L(41) WECS (Free- standing Monopole Support Structure) L (42) WECS (Building- mounted) P = Permitted, L( #) = Permitted with a Limitation, SUP = Specific Use Permit LIMITATIONS: L(7) — Limited to two animals on parcels one to three acres in size. Additional animals may be added at a rate of one per each acre over three acres. L(8) — Travelers' accommodations, are permitted, provided that: 1. The business -owner or manager shall be required to reside on the property occupied by the accommodation, or adjacent property. 2. That each accommodation unit shall have one (1) off - street parking space, and the owners shall have two (2) parking spaces. All spaces shall be in conformance with the requirements of the Off - Street Parking section of this Chapter. 3. That only one (1) ground or wall sign, constructed of a non - plastic material, non - interior illuminated of four (4) sq. ft. maximum size be allowed. Any exterior illumination of signage shall be installed such that it does not directly illuminate any residential structures adjacent or nearby the travelers' accommodation. 4. That the number of accommodation units allowed shall be proportional to the permitted density of the zone. Each traveler's accommodation unit shall be counted as 0.6 units for the purpose of calculating the permitted number of traveler's accommodations. 5. All traveler's accommodations shall be within two hundred (200) feet of a collector or arterial. Street designations shall be as determined by the City Comprehensive Plan. Distances shall be measured via public street or alley access to the site from the arterial. 6. Excluding the business - owner's unit and the area of the structure it will occupy, there must be at least four hundred (400) sq. ft. of gross interior floor space remaining per unit. 7. Traveler's accommodations are limited to no more than eight (8) guest units. L(10) — All restrictions of L(8), but limited to no more than five (5) guest units. L(14) — Uses are limited to no more than ten thousand (10,000) square feet of gross floor area. L(27) — Must comply with the provisions of Subchapter 22, Gas Well Drilling and Production L(38) — Must meet the requirements of Section 35.12.9. L(41) — Lots where the proposed WECS will be located shall have a minimum lot area of two (2) acres. A maximum of one (1) WECS is permitted by right. Multiple WECS are permitted only with approval of a SUP. L(42) — Building- mounted WECS may not extend higher than ten (10) feet above where the WECS is mounted on the building. The height shall be measured from the base of the WECS where it is mounted on the building to the highest point of the arc of the blades' elevation. If the WECS does not use blades, then height is measured from the base of the WECS where it is mounted on the building to the highest point of the WECS. 14 HAI 110 NTH INS IR Pg qp is smi 1 met 1.1 - .............. ............ 0 150 300 600 ONEEEEEEEEEENEEEmmEm Feet CITY DENTON LOCATION MAP Project No: Z15 -0014 Denton Shop with a Cop I ... . . ..... . ... 'll.", ..... ....... .... I .......... . . .. . ... . .... elh .VIeai,, V nyV201 1, C,-), V 1 1, 00 14 fJen 1n S h,, m It e C,p V IS M, p,V 1 ', 00 14 xd Vicinity Map July 8, 2015, Planning & Zoning Commission Meeting Minutes B. Ilold_a _p.a bl c_hear ng_q!lcl_cons der a recommend t on to_C" ty_C'oa ,inc i tg ��c��ng_�_t�roL Ig re nest from 1�Tei �hborhood I esidential 4 1�fI _� to Communit Mixed Ilse eneralCM- ()._c>n � �s c> land, _� lid sa b�� �t 1c2p t� s ra( rKall looted on the west side of Teasle llickor Creek Road. 3 Mike Bell, Associate Planner, presented this request. He provided the location map, zoning map, 4 Future Land Use Map, and criteria for approval. Staff sent out 13 public hearing notices to 5 property owners within 200 feet of the subject site, and 42 courtesy notices to property owners 6 within 500 feet of the subject site. At this time staff has received one returned response in favor 7 of this request. Staff recommends approval of this request. Bell stated the applicant is present. 8 9 Vice -Chair Conner opened the Public Hearing. 10 11 The following individuals spoke during the public hearing: 12 13 Michael Guthrie, 2471 Hickory Creek Road, Denton, Texas. He is opposed to this 14 request. He has concerns with fencing on his property. He has livestock on the property. 15 16 Bell stated there is a proposed eight foot masonry wall that will screen the property. The wall 17 will be located on the western property line. 18 19 There was no further discussion. Vice -Chair Conner closed the public hearing. 20 21 Commissioner Taylor informed Guthrie that this is one step in the review and approval process. 22 He suggested that Guthrie stay tuned for additional steps for predevelopment with City Council. 23 24 Commissioner Devin Taylor motioned, Commissioner Frank Dudowicz seconded to approve this 25 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 26 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 27 Vice -Chair Frank Conner, "aye ". 28 C. Hold a public hearin W and consider making a recommendation to Cit I Council re )ardin) an nitial rc>n��� c>� 1�f �i ��bc�1��c>c�c� Res de t a1_ 1 _(�f 1�-1l District _and _a _Sr)eciftc_t7se Kermit S1�71' fc>r a Semi- 1'aiblic l lall. C "laib. c>r l:,c>cl pe c>n a � rc>ximatel 1.0.8 acre site is penerall looted on the _east_s de;_of arthold toad and_gp).L>��Ij�tgl 27:0 feet south of G nzer Road. 115 -0014 Denton Sho with a Co Ja�lie W att 29 30 Julie Wyatt, Assistant Planner, presented this request. She stated there are two projects that will 31 be heard together. She provided the location map, current zoning classification, surrounding area 32 zoning, and Future Land Use Map. Wyatt provided the criteria for approval. Staff sent out two 33 public hearing notices to property owners within 200 feet of the subject site and six courtesy 34 notices to property owners within 500 feet of the subject site. At this time staff has returned one 35 response in opposition of this request. A supermaj ority vote would be required by City Council. 36 7 1 Staff recommends approval of Z15 -0014. Staff recommends approval of S15-0005, subject to the 2 following conditions: 1. Limit the hours of meeting times from 8:00 A.M. to 10:00 P.M. Sunday 3 through Thursday and 8:00 A.M. to 11:00 P.M. Friday and Saturday to reduce noise impacts on 4 adjacent properties. 2. Parking must be located to the side or behind the building to retain the 5 residential nature of the property and the area. Parking areas must be screened from adjacent 6 properties with a Type B buffer. A Type B buffer is a 10 -foot planted strip that includes a 7 combination of 5 evergreen and deciduous trees and 30 shrubs per 100 linear feet. 3. Any 8 additional improvements to expand the use other than adding 400 square feet to the existing 9 building for meeting space and restrooms and associated parking improvements will require 10 approval of a new Specific Use Permit. 4. The approval of the SUP is for the Denton Police 11 Officer's Association's Shop with a Cop and cannot be transferred to another entity. 12 13 Commissioner Bentley stated he is in favor of Conditions 3 and 4; however, he has some 14 concerns with Conditions 1 and 2. Wyatt stated the screening could be limited to the parking lot. 15 She stated the property already has six parking spaces. However, they would have to make some 16 changes for American's with Disabilities Act (ADA) parking requirements. 17 18 Commissioner Dudowicz questioned the calculation on the parking space requirements. Wyatt 19 stated they are calculated one parking space per four seats. 20 21 Commissioner Taylor questioned why the Denton Police Department would want a location this 22 far out of town. Wyatt deferred to the applicant. 23 24 Commissioner Taylor questioned if property owners not located within the City are notified. 25 Wyatt stated notices were sent to property owners within 200 feet and 500 feet of the subject site. 26 The public hearing was also noticed in the newspaper. Vice -Chair Conner opened the public 27 hearing. 28 29 The following individuals spoke during the public hearing: 30 31 Lisa McQuinn, 7202 Barthold Road, Krum, Texas. McQuinn stated she is in favor of this 32 request. The applicant will be good neighbors, and nice to have police officers in the area. 33 34 Commissioner Strange questioned McQuinn if she feels it is necessary to have the screen buffer 35 area. McQuinn stated she doesn't feel it is necessary. 36 37 J. R. Merritt, 2946 Ganzer Road, Denton, Texas. Merritt stated he is opposed to this 38 request unless he can gather more information to assure that this will not become another 39 wedding event center. He stated he is not sure if his property is still considered within the 40 City limits or not. Merritt was the one opposed returned response from the Public 41 Notification process. Merritt withdrew his opposition to this request. 42 43 Applicant, Virginia Nichols, City of Denton Police Department, P.O. Box 19103, Denton, Texas. 44 Nichols stated the proposed site is only 12 minutes from the Police Department. They would like 45 to have a location for staff to use for their lunch breaks for a downtime. Many of the officers do E3 1 not live in Denton and do not have somewhere to go on their long shifts for downtime. Nichols 2 stated she has spoken with Merritt in regards to the request. 3 4 Commissioner Dudowicz questioned the parking situation. Nichols stated there are currently six 5 parking spaces on the rear of the building that are covered parking spaces. There is one proposed 6 to be converted to an ADA parking space. 7 8 Commissioner Taylor questioned Nichols if she has any concerns with the four conditions on the 9 request. Nichols stated she doesn't have any concerns with those conditions. There was no 10 further discussion. Vice -Chair Conner closed the public hearing. 11 12 Commissioner Bentley stated he would motion to approve this request with the removal of staff's 13 conditions 1 and 2. 14 15 Commissioner Brian Bentley motioned, Commissioner Jim Strange seconded to approve the 16 request for Z15 -0014 and S15 -0005, based on the following conditions: 1. Any additional 17 improvements to expand the use other than adding 400 square feet to the existing building for 18 meeting space and restrooms and associated parking improvements will require approval of a 19 new Specific Use Permit. 2. The approval of the SUP is for the Denton Police Officer's 20 Association's Shop with a Cop and cannot be transferred to another entity. Motion approved (5- 21 0). Commissioner Brian Bentley, "aye ", Commissioner Jim Strange, "aye ", Commissioner Frank 22 Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and Vice -Chair Frank Conner, "aye ". 23 D. Hoid_a _p.a bl c_hear ng_q!lcl_cons der a recommend t on to_C" tv._C'oa ,ittc i EggglcILng,_a_ig;roltLig re nest from Nei �hborhood F esidential 2 M -Z to Communit Mixed 1Jse General (CM- ( )._c>rn ? 1c> 11a t� .7 � s_of land,_�`he— sa�b���t_p.Igp qt- - s_����r���-located-on-the-east side of North Bonnie Brae Street a rc>ximatei 475 feet north of West t.-Jniversitv Drive 24 25 Mike Bell, Associate Planner, presented this request. Bell provided the location map, zoning 26 map, and Future Land Use Map. He provided the criteria for approval. Staff sent out one public 27 notices to property owners within 200 feet of the subject site, and five courtesy notice to property 28 owners within 500 feet of the subject site. At this time staff has not received any returned 29 responses. Staff recommends approval of this request. 30 31 Vice -Chair Conner opened the Public Hearing. There was no one to speak. Vice -Chair Conner 32 closed the Public Hearing. 33 34 Commissioner Frank Dudowicz motioned, Commissioner Devin Taylor seconded to approve this 35 request. Motion approved (5 -0). Commissioner Brian Bentley, "aye ", Commissioner Jim 36 Strange, "aye ", Commissioner Frank Dudowicz, "aye ", Commissioner Devin Taylor, "aye ", and 37 Vice -Chair Frank Conner, "aye ". 38 P]