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HomeMy WebLinkAbout2016-12-06 Agenda with BackupCity of Denton Meeting Agenda City Council City Hall 215 E. McKinney St. Denton, Texas 76201 www.cityofdenton.com Tuesday, December 6, 2016 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, December 6, 2016 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 Agenda Items This section of the agenda allows citizens to speak on Consent Agenda Items only. Each speaker will be given a total of three (3) minutes to address any items he/she wishes that are listed on the Consent Agenda. A Request to Speak Card should be completed and returned to the City Secretary before Council considers this item. 2. Requests for clarification of agenda items listed on the agenda for December 6, 2016. 3. Work Session Reports A. ID 16-1500 Receive a report, hold a discussion, and give staff direction regarding findings and recommendations from Denton's recently completed citywide tree resource assessment. Attachments: Presentation of Findings - the State of the Denton Urban Forest 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 16-1488 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 and discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests generally located in the northeast corner of East Sherman Drive and Hartlee Field Road, in the City of Denton, Denton County, Texas; discussions had, deliberation, and direction given, by the Denton City Council in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third parry. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above; discussion of these legal matters in an open meeting 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 City ofDenton Page 1 Printed on 121212016 City Council Meeting Agenda December 6, 2016 of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. [Hartlee Field Road Substation] B. ID 16-1555 Consultation with Attorneys - Under Texas Government Code Section 551.071. Consultation with the City's attorneys regarding legal issues associated with: (i) the management of the City's Rights -of -Way, including, but not limited to, third -parry use of the City's Rights -of -Way for telecommunications, fiber infrastructure, and fiber -based network deployment purposes, all of which include wired and/or wireless facilities; and (ii) the physical attachment of telecommunications, fiber infrastructure, and fiber -based network deployment facilities to the City's electric utility poles, dusk -to -dawn and/or street lighting and traffic signals. Discussion of these legal issues in an open meeting 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. C. ID 16-1556 Consultation with Attorneys - under Texas Government Code Section 551.071. Consult with City's attorneys regarding liability associated with valet parking services and give staff direction on permitting the same, where a public discussion of this legal matter would clearly 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 16-1559 Deliberations regarding Real Property -Under Texas Government Code, Section 551.072; and Consultation with Attorneys Under Texas Government Code, Section 551.071. Discuss, deliberate, receive information from staff and provide staff with direction pertaining to the potential disposal, exchange and/or sale of certain real property interests located in the David Hough Survey, Abstract Number 646, generally located in the 2100 block of South Mayhill Road, in the City of Denton, Denton County, Texas, being 4.936, 3.457, and 0.295 acre tracts of land. Consultation with the City's attorneys regarding legal issues associated with the potential disposal, exchange and/or sale involving the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. (Mayhill Road Widening - Nelms/Greb Parcel M137 M138 & Quail Creek South, LP Parcel M236 dispositions) City ofDenton Page 2 Printed on 121212016 City Council Meeting Agenda December 6, 2016 ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION'). THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE, §551.001, ET 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 §551.071-551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: 1. PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag "Honor the Texas Flag — I pledge allegiance to thee, Texas, one state under God, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. ID 16-1492 Gold -Level Certified Scenic City B. ID 16-1512 Police Appreciation Day C. ID 16-1569 Presentation by the Denton Citizens Police Academy to Officer Shane Kizer. 3. PRESENTATION FROM MEMBERS OF THE PUBLIC A. Review of procedures for addressing the City Council. B. Receive Scheduled Citizen Reports from Members of the Public. 1. ID 16-1489 Deborah Armintor regarding citizen comments on sidewalks around the Courthouse. 2. ID 16-1494 Susan Vaughan regarding rebuilding the sidewalks around the Denton County Courthouse on the Square. 3. ID 16-1519 Craig Clifton regarding single room occupancy issues. C. Additional Citizen Reports - This section of the agenda permits any person not registered for a citizen report to make comments regarding public business on items not listed on the agenda. This is limited to two speakers per meeting with each speaker allowed a maximum of four (4) minutes. Such person(s) shall have filed a 'Blue Card" requesting to speak during this period prior to the calling of this agenda item. 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 City ofDenton Page 3 Printed on 121212016 City Council Meeting Agenda December 6, 2016 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 — DD). 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 — DD 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 16-1331 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Black Chamber of Commerce for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance B. ID 16-1332 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance C. ID 16-1334 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitors Bureau) providing for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinancepdf D. ID 16-1335 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton Dog Days, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance E. ID 16-1336 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Festival Foundation, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance F. ID 16-1337 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Holiday Festival Association, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance G. ID 16-1338 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Kiwanis Club of Denton, Breakfast, Denton, TX, for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance City ofDenton Page 4 Printed on 121212016 City Council Meeting Agenda December 6, 2016 H. ID 16-1339 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Area Running Club for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance L ID 16-1340 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton African American Scholarship Foundation, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance J. ID 16-1341 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Market, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Oridnance K. ID 16-1342 Consider adoption of an ordinance authorizing the City Manager to execute an interlocal agreement between the City of Denton and Denton County for the payment and use of hotel tax revenue in support of the Denton County Office of History and Culture; and providing an effective date. Attachments: Exhibit 1 - Ordinance L. ID 16-1344 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Greater Denton Arts Council, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance M. ID 16-1345 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Central Business District Association, Inc., d/b/a Denton Main Street Association for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance N. ID 16-1346 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Music Theatre of Denton for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance O. ID 16-1347 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the North Texas State Fair Association for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance P. ID 16-1348 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Tejas Storytelling Association, Inc. for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance City ofDenton Page 5 Printed on 121212016 City Council Meeting Agenda December 6, 2016 Q. ID 16-1349 Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Texas Filmmakers' Corporation for the payment and use of hotel tax revenue; and providing an effective date. Attachments: Exhibit 1 - Ordinance R. ID 16-1486 Consider adoption of an ordinance of the City of Denton, Texas, authorizing an agreement between the City of Denton, Texas and the Children's Advocacy Center for Denton County, Incorporated for providing aid to the City of Denton Police Department; in the investigation of child abuse cases; providing client and clinical services to victims of child abuse and non -offending family members; providing for the expenditure of funds in the amount of $102,862 therefor; and providing for an effective date. Attachments: Exhibit 1 - 16-17 DACDC Ordinance and Contract S. ID 16-1490 Consider adoption of an ordinance of the City of Denton, Texas prohibiting parking on opposite sides of McCormick Street from Underwood Street to Margie Street; providing a repealer clause; providing a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance; providing that violations of this ordinance shall be governed by Chapter 18 of the Code of Ordinances of the City of Denton; and providing for an effective date. The Traffic Safety Commission recommends Option 1 (5-0). ($19,400.00), and other Attachments: Exhibit 1 Location Map as prescribed in the Agreement, Exhibit 2 On -street Parking Condition-McCorrmick St. to the ordinance and Exhibit 3 International Fire Code part thereof as Exhibit "A", by and Exhibit 4 City of Denton Code of Ordinance City and Mohamad R. Exhibit 5 Letter Notice Exhibit 6 Door Hanger Notice Exhibit 7 Traffic Safety Committee Minutes Exhibit 8 Proposed Ordinance T. ID 16-1491 Consider adoption of an ordinance of the City of Denton, Texas amending the Fiscal Year 2016-17 Budget and Annual Program of Services of the City of Denton to allow for adjustments to the Tourist and Convention Fund of one hundred fifty six thousand seven hundred and twenty dollars ($156,720); declaring a municipal purpose; providing a severability clause; providing an open meetings clause; and providing for an effective date. Attachments: Budget Amendment Ordinance.pdf Exhibit 2- Tourist and Convention Fund Resources and Expenditure Summary U. ID 16-1503 Consider adoption of an ordinance authorizing the City Manager of the City of Denton, Texas ("City") to execute, for and on behalf of the City, an Easement Purchase and Abandonment Agreement ("Agreement"), for the purchase price of Nineteen Thousand Four Hundred Dollars and No Cents ($19,400.00), and other consideration, as prescribed in the Agreement, as attached to the ordinance and made a part thereof as Exhibit "A", by and between the City and Mohamad R. City ofDenton Page 6 Printed on 121212016 City Council Meeting Agenda December 6, 2016 Haghighi and Soraya Irannejad, providing for (a) the purchase by the City of (i) a Sanitary Sewer Easement, encumbering a 0.1105 acre tract, being more particularly described in the Sanitary Sewer Easement, being attached to and made a part of the Agreement; and (ii) a Temporary Construction Easement encumbering 0.0403 acre tract of land, being more particularly described in the Temporary Construction Easement, being attached to and made a part of the Agreement; (b) the Partial Abandonment and Release by the City of a portion of that certain water and sanitary sewer easement, dated February 12, 1960, from Dwight L. Archer, Jr. and Duane H. Archer to the City, recorded in Volume 454, Page 6, Deed Records, Denton County, Texas; and (c) the Complete Abandonment and Release of (i) that certain water and sanitary sewer easement, dated February 12, 1960, from Ravanelle McMahan to the City, recorded in Volume 454, Page 1, Deed Records, Denton County, Texas; (ii) that certain water and sanitary sewer easement, dated February 18, 1960, from Herbert Cottle and wife, Fae Cottle to the City, recorded in Volume 454, Page 117, Deed Records, Denton County, Texas; (iii) that water and sanitary sewer easement, dated February 12, 1960, from Ruth Rich to the City, recorded in Volume 454, Page 3, Deed Records, Denton County, Texas; and (iv) that certain public utility easement dated April 5, 1974, from Joe Belew and Terry Schneider to the City, recorded in Volume 702, Page 243, Deed Records, Denton County, Texas; all tracts of real property being in the William Daniel Survey, Abstract No. 378, generally located in the 2300 block of Fort Worth Drive; authorizing the expenditure of funds; providing a savings clause; and providing an effective date. (Fort Worth Drive Utility Relocations Project - Parcel 12E) Attachments: Exhibit 1 - Location Map Exhibit 2 - Site Plan Exhibit 3 - Ordinance Exhibit 4 - Funding Source V. ID 16-1508 Consider adoption of an ordinance authorizing the City Manager of the City of Denton, Texas ("City") to execute, for and on behalf of the City, an Easement Purchase and Abandonment agreement ("Agreement"), as attached to the ordinance and made a part thereof as Exhibit "A", for the purchase price of Twelve Thousand Three Hundred Fifty Dollars and No Cents ($12,350.00), and other consideration, as prescribed in the Agreement by and between the City and Regi Investments, Inc., providing for (A) the granting to the City of (i) a sanitary sewer easement, encumbering a 0.0066 acre tract of land, a 0.0218 acre tract of land, and a 0.1318 acre tract of land, all being more particularly described in the Sanitary Sewer Easement, being attached to and made a part of the Agreement; and (ii) a temporary construction easement, encumbering 0.0066 acre of land, being more particularly described in the Temporary Construction Easement, being attached to and made a part of the Agreement; and (b) the Partial Abandonment and Release ("Release") by the City of a 0.11 acre portion of that certain sanitary sewer easement, dated November 26, 1956, from R.M. Dobbins and wife, Maude Dobbins to the City, recorded in Volume 427, Page 441, Deed Records, Denton County, Texas; all tracts of real property being in the William Daniel Survey, Abstract No. 378, generally located in the 2200 block of Fort Worth Drive; authorizing the expenditure of funds, City ofDenton Page 7 Printed on 121212016 City Council Meeting Agenda December 6, 2016 providing a savings clause; and providing an effective date. (Fort Worth Drive Utility Relocations Project - Parcel 12W) Attachments: Exhibit 1 - Location Map P12W- Regi Exhibit 2 - Site Map P12W -Regi W. ID 16-1514 Consider approval of a resolution of the City Council of the City of Denton, Texas, appointing a Primary and Alternate Member as official voting representatives to the North Central Texas Council of Governments Regional Transportation Council (Hereinafter "RTC"); and providing an effective date. The Mobility Committee recommends approval (3-0). Attachments: Exhibit 1 RTC R2014-014pdf Exhibit 2 RTC .pdf Exhibit 3 RTC Exhibit 4 Resolution X. ID 16-1515 Consider adoption of an ordinance of the City of Denton, Texas, amending the provisions of Chapter 18 relating to Motor Vehicles and Traffic by adding Section 18-91.50 to prohibit stopping or parking of vehicles in certain places: providing a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance: and providing for an effective date. The Traffic Safety Commission recommends approval (5-0). Attachments: Exhibit 1 On -street Parkingpdf Exhibit 2 On -Street Parking.docx Exhibit 3 On -Street Parking(002).docx Exhibit 4 - Minutes On Street Parking.docx Exhibit 5 Parking Enforcement Code.pdf Y. ID 16-1520 Consider adoption of an ordinance authorizing the City Manager to execute a professional services agreement for Pipeline Inspection and Condition Assessment at the Lake Lewisville Water Treatment Plant; providing for the expenditure of funds therefor; and providing an effective date (File 6281 -awarded to Pure Technologies U.S. Inc. in an amount not -to -exceed $592,740). The Public Utilities Board recommends approval (6-0). Attachments: Exhibit 1 -Staff Sole Source Memo Exhibit 2 -PUB Minutes Exhibit 3 -Ordinance Exhibit 4 -Contract Z. ID 16-1521 Consider adoption of an ordinance authorizing the City Manager to execute a professional services agreement for Bond Counsel Services for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (File 6254 -awarded to McCall, Parkhurst and Horton, LLP ("MPH"). The Audit/Finance Committee recommends approval (3-0). City ofDenton Page 8 Printed on 121212016 City Council Meeting Agenda December 6, 2016 Attachments: Exhibit 1 -Original MPH Agreement Exhibit 2 -MPH Statement of Qualifications Exhibit 3 -Ordinance Exhibit 4 -Contract AA. ID 16-1523 Consider adoption of an ordinance authorizing the City Manager to execute a consulting services agreement for Financial Advisory, Arbitrage Rebate and Continuing Disclosure Services for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (File 6228 -awarded to FirstSouthwest, a Division of Hilltop Securities Inc. and FSC Continuing Disclosure Services, a Division of Hilltop Securities Inc., hereinafter called "Hilltop Securities" and affiliate, First Southwest Asset Management, LLC). The Audit/Finance Committee recommends approval (3-0). Attachments: Exhibit 1 -Current Contract Exhibit 2-FSW Statement of Qualifications Exhibit 3 -Ordinance Exhibit 4 -Contract BB. ID 16-1526 Consider adoption of an ordinance closing, abandoning and vacating the right of way of Gary Street, conveyed in Volume 66 Page 623, Deed Records, Denton County, Texas, and located in the B.B.B. & C.R.R. Survey, Abstract No. 185, to accommodate construction by the Denton Independent School District; and declaring an effective date. [Abandonment of Gary Street - situated between North Locust and North Elm Street - DISD Administration facility expansion] Attachments: Exhibit 1 - Location Map Exhibit 2 - Site Map Exhibit 3 - DISD project narrative letter Exhibit 4 - DISD Near Term Gary Street Concept map Exhibit 5 - DISD Long Term Gary Street Concept map Exhibit 6 - Ordinance - Gary St. Abandonment CC. ID 16-1531 Consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No. 2015-306 to prescribe updated titles and number of positions for certain classifications of Fire Department personnel; providing repealer, cumulative and severability clauses; and declaring an effective date. Attachments: Exhibit 1 Ordinance No 2015-306 Exhibit 2 Ordinance DD. ID 16-1573 Consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No. 2015-230 to prescribe updated titles and number of positions for certain classifications of Police Department personnel; providing repealer, cumulative and severability clauses; and declaring an effective date. Attachments: Exhibit 1 Ordinance No. 2015-230 Exhibit 2 Proposed Ordinance (Police) City ofDenton Page 9 Printed on 121212016 City Council Meeting Agenda December 6, 2016 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. ID 16-1459 Consider a nomination to the City's Economic Development Partnership Board. B. ID 16-1485 Consider adoption of an ordinance of the City of Denton, Texas amending Section 18-38 of the Code of Ordinances relating to the use of wireless communication devices while driving to prohibit the use of wireless communication devices while operating a motor vehicle; providing a repealer clause; providing for a penalty as a Class C Misdemeanor for violations of this ordinance; and providing for an effective date. Traffic Safety Commission recommends approval (5-0). Attachments: Exhibit 1 - Current Ordinance 2014-112 Exhibit 2 - Transportation Code Definitions C. ID 16-1558 Consider approval of a resolution of the City of Denton, Texas, adopting the City of Denton's 2017 State Legislative Program for the 85th Texas Legislature; and providing an effective date. Attachments: Exhibit 1 2017 State Legislatiive Program Exhibit 2 HOT Fund Legislative Proposal White Paperf Exhibit 3 Tax Code 351.101 referenced in HOT Fund Legislative Proposal Exhibit 4 - Proposed Resolution for 2017 State Legislative Program 6. PUBLIC HEARINGS A. Z16 -0007a Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending Subchapter 35.7.5, the Fry Street Overlay District, to create a new subarea and development standards for a mixed use development on approximately 1.75 acres of land, generally located north of Hickory Street, south of Oak Street, approximately 200 feet east of Avenue B and approximately 125 feet west of Fry Street, in the City of Denton, Denton County, Texas; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. The Planning and Zoning Commission recommends denial (4-1). A supermajority vote by Council is required for approval. Attachments: Exhibit 1 - Site Location Exhibit 2 -Zoning Map Exhibit 3 - Future Land Use Map Exhibit 4 - Project Narrative Exhibit 5 - Draft Fry Street Overlay District Amendment Exhibit 6 - Notification Map Exhibit 7 - Public Hearing Notice Responses Exhibit 8 - Draft Planning and Zoning Commission Meeting Minutes Exhibit 9 - Draft Ordinance 7. CONCLUDING ITEMS City ofDenton Page 10 Printed on 121212016 City Council Meeting Agenda December 6, 2016 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 , 2016 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 11 Printed on 121212016 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1500, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Solid Waste & Recycling CM/ ACM: Jon Fortune Date: December 6, 2016 SUBJECT Receive a report, hold a discussion, and give staff direction regarding findings and recommendations from Denton's recently completed citywide tree resource assessment. BACKGROUND A city's urban forest is comprised of all the trees that grow on public or private land within the city limits and extraterritorial jurisdictions (ETJs). Much can be learned through surveying the urban forest's condition, characteristics, and associated risks. The City of Denton first conducted an inquiry into urban forest condition in 2010, through a partnership with faculty and students from the University of North Texas (UNT) Geography Department. This project obtained an estimated percentage of canopy cover for the city using aerial satellite imagery, but had limited applicability in terms of urban forest resource management and planning. Since 2010, advances in tree assessment technology, along with Denton's ongoing residential and commercial growth, have created the opportunity to obtain in-depth information on the state of Denton's urban forest. In early 2016, the City's key community partner for urban forestry programs, Keep Denton Beautiful, was tasked with leading the effort to complete a citywide tree resource assessment and tree canopy analysis. In coordination with key City staff from Planning, Parks, Environmental Services & Sustainability, and other departments, a Request for Proposals (RFP) was issued, and Preservation Tree Services was selected to complete the study. Field work began in June, and the final project report was delivered at the beginning of November. Research and Analysis The goals of the Tree Resource Assessment project include: 1) establish a baseline of data for the state of Denton's urban forest; 2) obtain a comprehensive picture of tree diversity, age, distribution, locations, and condition; 3) assist in future policy and management decisions; and 4) allow for more strategic, targeted distribution and planting of new trees through the Denton Tree Initiative, and other efforts led by Keep Denton Beautiful and the City of Denton. The project consisted of two assessment methods: 1) an i -Tree ECO Resource Assessment, which used a random sample of 251 study plots to quantify tree population, species composition, and distribution, as well as structural and environmental benefits; and City of Denton Page 1 of 3 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1500, Version: 1 2) an Urban Tree Canopy (UTC) Analysis, which used detailed land cover data from high-resolution aerial imagery to determine overall tree canopy cover, tree distribution, and opportunities for planting and preservation. Results and Deliverables A total of four project deliverables have been produced by Preservation Tree: 1) Canopy Planner, a cloud -based GIS tool that can be used to set management goals for Denton's urban forest; 2) complete project files and raw data from the study; 3) a presentation of project findings; and 4) an in-depth State of the Denton Urban Forest Report. The report and other deliverables provide detailed information to help Denton policymakers and residents increase their understanding of the urban tree population, and assist community leaders in making informed decisions about the future management of this important natural asset. Key findings from the project include: - A total population of 3,463,000 trees, with a total structural (or replacement) value of $2.06 billion. - Denton's trees provide an additional $7.2 million annually in environmental benefits (i.e., pollution removal, energy savings, avoided run-off, and carbon sequestration). - 46% of Denton's urban tree canopy is located on undeveloped land. - 14% of the surface area in Denton is covered with impervious surface, such as buildings, cement, roads, and parking lots. - Denton's most common tree species are Sugarberry (a.k.a. Hackberry), Cedar Elm, and Post Oak. - Trees such as Post Oaks and Pecans made up a relatively small percentage of the total tree population, yet accounted for a very high percentage of total benefits value for the city. For example, Post Oaks accounted for only 9% of the total tree population, yet provide 23% of the total environmental benefits of our urban forest. - Nearly 50% of Denton's tree population is comprised of just three species, indicating low species diversity, which presents higher risk for loss from pest and disease. Recommendations and Next Steps Taking into consideration the key findings of this study, Preservation Tree has compiled a list of five recommendations to help guide Denton's next steps in urban forestry management: 1) Use results of this assessment to preserve and promote urban tree canopy, especially in undeveloped and single-family residential land use classes. 2) Conduct further analyses of the Urban Tree Canopy data produced by this study, including comparisons of public versus privately owned parcels on undeveloped land. 3) Use this assessment to help drive policy to strengthen tree protection during development, and manage professional care of trees. 4) Use results of this assessment to enhance current tree planting initiatives. 5) Use trees and green infrastructure to off -set urban heat island effect, and reduce storm water impacts. PRIOR ACTION/REVIEW (Council, Boards, Commissions) May 3, 2016 Budget Amendment Approved by Council April 5, 2016 City Council Work Session Discussion January 21, 2016 Keep Denton Beautiful Board Resolution March 3, 2015 City Council Work Session Discussion January 13, 2015 City Council Work Session Discussion February 5, 2013 City Council Work Session Discussion City of Denton Page 2 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, File #: ID 16-1500, Version: 1 FISCAL INFORMATION The original estimated cost for the project was $150,000; actual cost after completing an RFP was $93,000. Funding came from the Tree Mitigation Fund, under which permitted uses include "to perform and maintain a City-wide tree inventory" (DDC Section 35.13.7.A.7.e). STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Safe, Liveable & Family -Friendly Community Related Goal: 4.2 Seek clean and healthy neighborhoods in Denton EXHIBITS Exhibit 1 - Presentation of Findings: the State of the Denton Urban Forest Respectfully submitted: Vance Kemler General Manager Prepared by: Lauren Barker Keep Denton Beautiful Program Manager City of Denton Page 3 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, w H H L 4 U Gn to w 0 (1) F N LL O ® J: CO L "'015 tl e U CO W CMy, W � N O L (B N O L- cfj NCo�r N n y< L 4 U to (1) N LL CO L � N O L- cfj n u , H wl O •— ca LM = = O E E c � V Q 4w N _ O W 0 V i Otic LM M V Lm m •— m H O v a1 = E E LL � V Q W x H 40 H L H i O 4+ 4+ 40 vi 40 E O E V � O - N O � O O O s E 40 O r .O .N 40 _ r E V E Q 0 Ln E O 0 Q %+- -0 O +�-+ L co:O �� '� > cn Ln O E- O ca In . _ -0— -0 -0 O Q O O _ C: Ln V O +-' O L •L L O O Ln •> N O N Q Q > Ln Ln E O Ln a) V O .� Q Ln LU o � = o � o a O ° LL- O 400 H 0 40 N V; LM 0 LM vi vi 0 0 0 0 N 6� LM 0 00 (1) u vi LM r V, LM LM VI 40 vi = 40 I.Vi 0 o 40 -W *0 E w 0 0 vi mw LM L. 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CD, CD C� C, 0 Lr) r -i IH CD CD rn CD ko Ci 00 0') (D kD -4 (LI fu > CN m N > fN fN N fN fN r -q 0 m vC �T 0 ro to tS 0 0 C: < C:7 >, A }' O '> ca u _0 � 40 _>1 V L Q N 40 O Ul N 2 (6 V Ln � O V _ -0 >, � 47 V N Q � � i H O LA +-+ >, •ELA C V N a� LL DD s N N � O D _O a rl 47 N N 0-0 O +� _ +� C = = V E E O O Q GC N GC 0 n� W -n� W 0) O ' ^I-- 4-/)J '^J nV I1 W k O LL E M 0 GE W :) W 4—J 0 vp City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON File #: ID 16-1488, Version: 1 Legislation Text 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 and discuss, deliberate, and provide staff with direction regarding the potential acquisition of real property interests generally located in the northeast corner of East Sherman Drive and Hardee Field Road, in the City of Denton, Denton County, Texas; discussions had, deliberation, and direction given, by the Denton City Council in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third party. Consultation with the City's attorneys regarding legal issues associated with the acquisition of the real property interests described above; discussion of these legal matters in an open meeting 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. [Hardee Field Road Substation] City of Denton Page 1 of 1 Printed on 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON File #: ID 16-1555, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consultation with Attorneys - Under Texas Government Code Section 551.071. Consultation with the City's attorneys regarding legal issues associated with: (i) the management of the City's Rights -of -Way, including, but not limited to, third -party use of the City's Rights -of -Way for telecommunications, fiber infrastructure, and fiber -based network deployment purposes, all of which include wired and/or wireless facilities; and (ii) the physical attachment of telecommunications, fiber infrastructure, and fiber -based network deployment facilities to the City's electric utility poles, dusk -to -dawn and/or street lighting and traffic signals. Discussion of these legal issues in an open meeting would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas or would jeopardize the City's legal position in any administrative proceeding or potential litigation. City of Denton Page 1 of 1 Printed on 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON File #: ID 16-1556, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Consultation with Attorneys - under Texas Government Code Section 551.071. Consult with City's attorneys regarding liability associated with valet parking services and give staff direction on permitting the same, where a public discussion of this legal matter would clearly 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 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON Legislation Text File #: ID 16-1559, Version: 1 Agenda Information Sheet SUBJECT Deliberations regarding Real Property -Under Texas Government Code, Section 551.072; and Consultation with Attorneys Under Texas Government Code, Section 551.071. Discuss, deliberate, receive information from staff and provide staff with direction pertaining to the potential disposal, exchange and/or sale of certain real property interests located in the David Hough Survey, Abstract Number 646, generally located in the 2100 block of South Mayhill Road, in the City of Denton, Denton County, Texas, being 4.936, 3.457, and 0.295 acre tracts of land. Consultation with the City's attorneys regarding legal issues associated with the potential disposal, exchange and/or sale involving the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. (Mayhill Road Widening - Nelms/Greb Parcel M137_M138 & Quail Creek South, LP Parcel M236 dispositions) City of Denton Page 1 of 1 Printed on 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON Legislation Text File #: ID 16-1492, Version: 1 Agenda Information Sheet SUBJECT Gold -Level Certified Scenic City City of Denton Page 1 of 1 Printed on 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON Legislation Text File #: ID 16-1512, Version: 1 Agenda Information Sheet SUBJECT Police Appreciation Day City of Denton Page 1 of 1 Printed on 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON File #: ID 16-1569, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Presentation by the Denton Citizens Police Academy to Officer Shane Kizer. City of Denton Page 1 of 1 Printed on 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON File #: ID 16-1489, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Deborah Armintor regarding citizen comments on sidewalks around the Courthouse. City of Denton Page 1 of 1 Printed on 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON File #: ID 16-1494, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Susan Vaughan regarding rebuilding the sidewalks around the Denton County Courthouse on the Square. City of Denton Page 1 of 1 Printed on 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com DEN, ` ON File #: ID 16-1519, Version: 1 Legislation Text Agenda Information Sheet SUBJECT Craig Clifton regarding single room occupancy issues. City of Denton Page 1 of 1 Printed on 12/2/2016 povveied by I_egivt9i IN City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1331, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Denton and the Denton Black Chamber of Commerc providing an effective date. BACKGROUND e Manager to execute an agreement between the City of for the payment and use of hotel tax revenue; and This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $22,572 for FY 2016-2017 and has been included in the Annual Program of Services STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1331, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, sAegahour documents\ordinances\I6\hot funds py2017\bcoc ordinance.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON BLACK CHAMBER OF COMMERCE, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Black Chamber of Commerce, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 72016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS EY AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON BLACK CHAMBER OF COMMERCE, INC. (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Black Chamber of Commerce, Inc., a legal entity existing under the laws of the State of Texas (the "CHAMBER"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, CHAMBER is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with CHAMBER, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and CHAMBER agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CHAMBER under this Agreement, CITY agrees to pay to CHAMBER a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to CHAMBER, sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Black Chamber HOT Funds, PY2017 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers. (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31", June 30tH September 30th, and December 31" of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to CHAMBER an amount of money in each contract year equal to the lesser amount of Ninety -Seven Hundredths percent (0.97%) of the annual base payment amount, or the fixed contract amount of Twenty -Two Thousand Five Hundred and Seventy -Two Dollars ($22,572). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 0.97% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce CHAMBER's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to CHAMBER of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of CHAMBER. Black Chamber HOT Funds, PY2017 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that CHAMBER's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to CHAMBER of the agreed payments of hotel tax funds specified above, CHAMBER agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 315 of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the CHAMBER may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in CHAMBER's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the CHAMBER for which hotel tax funds may be used shall not exceed that portion of the CHAMBER's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) CHAMBER shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of CHAMBER funded by hotel tax revenues. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to CHAMBER any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. Black Chamber HOT Funds, PY2017 - Page 3 (b) CHAMBER acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in CHAMBER with respect to the hotel tax funds paid by CITY to CHAMBER under this Agreement. CHAMBER shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a), and in the budget as approved by CITY. (c) Upon the application or consent of CHAMBER, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of CHAMBER, without approval of the City Council by ordinance. 3.2 Separate Accounts. CHAMBER shall maintain any hotel tax funds paid to CHAMBER by CITY in a separate account, or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. CHAMBER shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by CHAMBER. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, CHAMBER shall make such financial records available for inspection and review by the party making the request. CHAMBER understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, CHAMBER shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds, pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e. g., front and back copies of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. CHAMBER shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. CHAMBER shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of CHAMBER's Board of Directors, as well as any other meeting of any constituency of CHAMBER, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017 and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter Black Chamber HOT Funds, PY2017 - Page 4 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse CHAMBER for any contractual obligations of CHAMBER undertaken by CHAMBER in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse CHAMBER or to assume the performance of any contractual obligations of CHAMBER for or under any contract entered into by CHAMBER as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), CHAMBER will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by the City; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. CHAMBER will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by CHAMBER after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in T¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of CHAMBER; (b) The insolvency of CHAMBER, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by CHAMBER for the benefit of creditors; Black Chamber HOT Funds, PY2017 - Page 5 (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or CHAMBER for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of CHAMBER to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, CHAMBER agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by CHAMBER with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that CHAMBER enters into any arrangement, contractual or otherwise, with such other entity, person or organization, CHAMBER shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. CHAMBER shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. CHAMBER shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and CHAMBER shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. CHAMBER shall not be considered a partner or joint venturer with CITY, nor shall CHAMBER be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. CHAMBER AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CHAMBER OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT Black Chamber HOT Funds, PY2017 - Page 6 OR INTENTIONAL ACTS OF CHAMBER, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. CHAMBER shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY City Manager CITY OF DENTON 215 E. McKinney Denton, TX 76201 CHAMBER John Baines DENTON BLACK CHAMBER OF COMMERCE, INC. P. O. Box 51026 Denton, TX 76206 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and CHAMBER and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. Black Chamber HOT Funds, PY2017 - Page 7 5.12 Insurance. CHAMBER shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: LIN 2017. THE CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: ANITA BURG , CITY ATTORNEY DENYON BLACK CHAMBER OF COMMERCE, INC. �. By- OW Chaff an/Director APPROVED AS TO LEGAL FORM: By: Secretary Black Chamber HOT Funds, PY2017 - Page 8 Black Chamber of Commerce Denton Blues Festival 2017 Program Year 2017 Budget Advertising Internet Radio Billboards Printed Matter Art Musicians Exhibit A 1,500 5,500 5,500 1,072 13,572 9,000 Total Budget $ 22,572 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1332, Version: 1 DEPARTMENT: ACM: Date: Finance Brian Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $25,000 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1332, Version: 1 Chuck Springer, 349-8260 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, sAlegal\our documentslordinances\1 6\bot funds py2017\dct ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON COMMUNITY THEATRE, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Community Theatre, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: Ali CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COMMUNITY THEATRE, INC. (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Community Theatre, Inc., a legal entity incorporated under the laws of the State of Texas (the "THEATRE"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, THEATRE is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with THEATRE, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and THEATRE agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by THEATRE under this Agreement, CITY agrees to pay to THEATRE a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to THEATRE sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. DCT HOT Funds, PY2017 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30t'', September 30`", and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to THEATRE an amount of money in each contract year equal to the lesser amount of. One and Eight Hundredths percent (1.08%) of the annual base payment amount, or the fixed contract amount of Twenty -Five Thousand Dollars ($25,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 1.08% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce THEATRE's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to THEATRE of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of THEATRE. DCT HOT Funds, PY2017 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that THEATRE's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to THEATRE of the agreed payments of hotel tax funds specified above, THEATRE agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity, as authorized by TEX. TAX CODE §351.101(a) (3). Funds for any calendar year which are unused by midnight December 31' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the THEATRE may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in THEATRE's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the THEATRE for which hotel tax funds may be used shall not exceed that portion of the THEATRE's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) THEATRE shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of THEATRE in which the hotel tax funds shall be used by THEATRE. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to THEATRE any hotel tax revenues as set forth in Section I of this contract DCT HOT Funds, PY2017 - Page 3 during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) THEATRE acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in THEATRE with respect to the hotel tax funds paid by CITY to THEATRE under this Agreement. THEATRE shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of THEATRE, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of THEATRE, without approval of the City Council by ordinance. 3.2 Separate Accounts. THEATRE shall maintain any hotel tax funds paid to THEATRE by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. THEATRE shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by THEATRE. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, THEATRE shall make such financial records available for inspection and review by the party making the request. THEATRE understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, THEATRE shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. THEATRE shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. THEATRE shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of THEATRE's Board of Directors, as well as any other meeting of any constituency of THEATRE, at which this Agreement or any matter subject to this Agreement shall be considered. DCT HOT Funds, PY2017 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017 and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse THEATRE for any contractual obligations of THEATRE undertaken by THEATRE in satisfactory performance of those activities specified in T¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse THEATRE, or to assume the performance of any contractual obligations of THEATRE, for or under any contract entered into by THEATRE as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), THEATRE will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. THEATRE will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by THEATRE after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: DCT HOT Funds, PY2017 - Page 5 (a) The termination of the legal existence of THEATRE; (b) The insolvency of THEATRE, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by THEATRE for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or THEATRE for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of THEATRE to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, THEATRE agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by THEATRE with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that THEATRE enters into any arrangement, contractual or otherwise, with such other entity, person or organization, THEATRE shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. THEATRE shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. THEATRE shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and THEATRE shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. THEATRE shall not be considered a partner or joint venturer with CITY, nor shall THEATRE be considered, nor in any manner hold itself out as, an agent or official representative of CITY. DCT HOT Funds, PY2017 - Page 6 5.3 Indemnification. THEATRE AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THEATRE OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF THEATRE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. THEATRE shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY THEATRE City Manager Mike Barrow CITY OF DENTON DENTON COMMUNITY THEATRE, INC. 215 E. McKinney 214 West Hickory Denton, TX 76201 Denton, Texas 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and THEATRE and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. DCT HOT Funds, PY2017 - Page 7 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. THEATRE shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY 2018. THE CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER APPROVEDA GAL FO By: 4TA BURGESS, CITY ATTORNE DENTON By: Chairman/Director DCT HOT Funds, PY2017 - Page 8 THEATRE, INC. ATTEST: Secretary APPROVED AS TO LEGAL FORM: DCT HOT Funds, PY2017 - Page 9 Denton Community Theatre Program Year 2027 Budget Advertising CVB Coops Brochures & Postcards Internet / Website Print Advertising Exhibt A $ 4,000 7,500 12,500 1,000 25,000 Total Budget $ 25,000 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1334, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitors Bureau) providing for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $1,284,995 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1334, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, sAlegal\our documents\ordinances\16\hot funds py20171chamber ordinance.doc ORDINANCE NO, AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE (CONVENTION AND VISITORS BUREAU) FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Chamber of Commerce (Convention and Visitors Bureau) for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IMA APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CHAMBER OF COMMERCE (CONVENTION & VISITORS BUREAU) (PY 2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Chamber of Commerce (Convention & Visitors Bureau), a non-profit corporation incorporated under the laws of the State of Texas (the "BUREAU"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, TEX. TAX CODE §351.101(a)(1) authorizes the expenditure of municipal hotel tax revenue for construction, improvement, enlarging, equipping, repairing, operating, and maintaining convention center facilities managed in part by the CITY, visitor information centers, or both; and WHEREAS, BUREAU is well equipped to perform those activities through its Denton Convention and Visitor's Bureau; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with BUREAU, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and BUREAU agree and contract as follows: L HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by BUREAU under this Agreement, CITY agrees to pay to BUREAU a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to BUREAU sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of CVB HOT Funds, PY2017 -- Page I the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30`h, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to BUREAU an amount of money in each contract year equal to the lesser amount of Fifty -Five and Twenty -Nine Hundredths percent (55.29%) of the annual base payment amount, or the fixed contract amount of One Million, Two Hundred Eighty -Four Thousand Nine Hundred and Ninety -Five Dollars ($1,284,995). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 52.29% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce BUREAU's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to BUREAU of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25' day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. CVB HOT Funds, PY2017 -- Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of BUREAU. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that BUREAU's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to BUREAU of the agreed payments of hotel tax funds specified above, BUREAU agrees to use such hotel tax funds only for: (1) advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity as authorized by TEX. TAX CODE §351.101(a); and (2) constructing, improving, enlarging, equipping, repairing, operating, and maintaining a visitor information center on the downtown Denton Square, as authorized by TEX. TAX CODE §351.101(a)(1). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. (a) Advertise and conduct solicitations and promotional programs to attract tourists and convention delegates or registrants to the Denton Convention Center, including, but not limited to: i. Marketing at the state and local level (including market analysis, campaign development, branding, promotion, etc.); ii. Collecting and reporting metrics on marketing activity; iii. Sales missions developed in conjunction with the Owner's hotel sales team to pre -identify and pre -qualify business -appropriate meetings for the Property; and iv. Partnership development to create collaborative opportunities with local private, public, and non-profit sector entities. (b) Provide meeting, event, and pre -convention services, including, but not limited to: i. Conducting site visits and familiarization tours for potential clients; CVB HOT Funds, PY2017 -- Page 3 ii. Customized servicing for groups (registration assistance, delegate name badge preparation, welcome packets, off-site function arrangements, etc.); and iii. Serving as liaison between meeting planner client and hotel, local business, and transportation. (c) Identifying, collecting rate bids from, and securing overflow hotels in Denton for convention delegates. 2.2 Administrative Costs. The hotel tax funds received from CITY by BUREAU may be spent for day-to-day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in BUREAU's budget (Exhibit "A") and each are directly attributable to work on programs, which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) BUREAU agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by TEX. TAX CODE §351.101(f) and §351.108 (c) and (d). BUREAU shall not utilize hotel tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in ¶T2.1 and 2.2 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) BUREAU shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of BUREAU funded by hotel tax revenue. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to BUREAU any hotel tax revenues as set forth in Section 1 of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) BUREAU acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in BUREAU with respect to the hotel tax funds paid by CITY to BUREAU under this Agreement. BUREAU shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a), and in the budget as approved by CITY. CVB HOT Funds, PY2017 -- Page 4 (c) Upon the application or consent of BUREAU, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of BUREAU, without approval of the City Council by ordinance. 3.2 Separate Accounts. BUREAU shall maintain any hotel tax funds paid to BUREAU by CITY in a separate checking account or with segregated fund accounting, such that any reasonable person can review the revenue source of any given expenditure. 3.3 Financial Records. BUREAU shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by BUREAU. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, BUREAU shall make such financial records available for inspection and review by the party making the request. BUREAU understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty (30) days after the end of every contract quarter, BUREAU shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures made or copies of the invoice or receipts with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). BUREAU shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. BUREAU shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. BUREAU shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of BUREAU's Board of Directors, as well as any other meeting of any constituency of BUREAU at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017 and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. CVB HOT Funds, PY2017 -- Page 5 (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse BUREAU for any contractual obligations of BUREAU undertaken by BUREAU in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶T2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse BUREAU or to assume the performance of any contractual obligations of BUREAU for or under any contract entered into by BUREAU as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), BUREAU will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. BUREAU will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by BUREAU after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of BUREAU; (b) The insolvency of BUREAU, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by BUREAU for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or BUREAU for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of BUREAU to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice CVB HOT Funds, PY2017 -- Page 6 to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, BUREAU agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by BUREAU with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that BUREAU enters into any arrangement, contractual or otherwise, with such other entity, person or organization, BUREAU shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. BUREAU shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. BUREAU shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and BUREAU shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. BUREAU shall not be considered a partner or joint venturer with CITY, nor shall BUREAU be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. BUREAU AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY BUREAU OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF BUREAU, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. BUREAU shall not assign this Agreement without first obtaining the written consent of CITY. CVB HOT Funds, PY2017 -- Page 7 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY BUREAU City Manager Kim Phillips CITY OF DENTON DENTON CHAMBER OF COMMERCE 215 E. McKinney Denton Convention & Visitors Bureau Denton, TX 76201 P.O. Box 1719 Denton, TX 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and BUREAU and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. BUREAU shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, 2. $1,000,000 Event Insurance, covering all events taking place on City -owned property, 3. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), 4. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served, and CVB HOT Funds, PY2017 -- Page 8 5. $500,000 Business Automobile Liability on any owned, non -owned or hired vehicles. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of ATTEST: BY: JENNIFER WALTERS, CITY SECRETARY ATTEST: Secretary 2016. THE CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: CITY ATTORNEY DENTON CII By: President OF COMMERCE APPROVED AS TO LEGAL FORM: am CVB HOT Funds, PY2017 -- Page 9 Exhibit A Denton Chamber of Commerce Convention and Visitors Bureau Program Year 2017 Budget Advertising General Administration: Print Advertising (Adding Welcome Center, Refresh Brand) Salaries & Benefits $ 165,000 Liability Insurance 800 Travel &Training 10,000 Memberships & Subscriptions 9,000 Computer Equipment (Adding: server, photo drive, POS Square) 35,000 Copy Machine 6,000 Office Supplies (Adding building maintenance to Chamber) 5,800 Telephones 17,000 Postage 5,000 Office Rent (Increase) 16,155 $ 269,755 Program Disbursements: Print Advertising (Adding Welcome Center, Refresh Brand) 5 50,000 DentonRadio.Com 12,000 Internet Marketing 33,090 Tourism Promotional Material 10,000 Brochures (Increase print for Welcome Center) 10,000 Travel & Trade Shows 24,000 Tourism & PR Services 9,000 Event Magazine 45,000 Event Magazine Distribution (increase from 20K to 60K 2X's a year) 11,000 $ 204,090 Communications & Social Media Salaries & Benefits $ 180,000 Memberships & Professional Development 10,000 Website (maintenance, updates, 3 new apps) 10,000 Communications (eNewsletter, email outreach) 2,400 Social & Digital Media (FaceBook, Plnterest, Twitter...) 70,000 272,400 Convention & Group Sales & Servicing Salaries and Benefits (Adding one Full Time Position $64,000) 186,000 Travel & Training 10,000 Print & Electronic Advertising ($33,900 increase due to Convention Center) 33,400 Sales & Marketing Missions ($33,000 Increase due to Convention Center) 16,500 Trade Shows & Conferences ($27,000 increase due to Convention Center) 20,500 Research, Mining, Lead Gen & Tracking ($21,100 increase due to Convention Center) 14,100 Site Visits & Fam Tours 8,ODO Servicing 2,500 Bid Fees 1$19,500 increase due to Convention Center) 20,E Memberships & Professional Development 1,650 $ 312,650 Group Tour Marketing: Print & Electronic Advertising $ 4,500 Sales & Marketing Missions 5,000 Trade Shows & Conferences 12,000 Site Visits & Fam Tours 1,500 Servicing 1,000 Memberships & Professional Development 2,100 $ 26,100 Downtown Welcome Center & Denton Store: Lease $ 57,500 Computer Equipment 81000 Operations & Maintenance 15,000 Insurance 7,500 Office Supplies 6,000 F/T Manager 66,000 Professional Development 4•000 P/T Assistant & Paid Interns 36,000 $ 200,000 Total Budget $ 1,284,995 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1335, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Denton Dog Days, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $18,086 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1335, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, sAlegal\our documents\ordinances\16\hot funds py2017\dog days ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON DOG DAYS, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Denton Dog Days, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY MIN APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON DOG DAYS, INC. (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Dog Days, Inc., a legal entity incorporated under the laws of the State of Texas (the "ENTITY"): WHEREAS, TEX. Tax CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ENTITY is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ENTITY, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ENTITY agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ENTITY under this Agreement, CITY agrees to pay to ENTITY a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ENTITY sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Dog Days HOT Funds, PY2017 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30`h, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ENTITY an amount of money in each contract year equal to the lesser amount of: Seventy -Eight Hundredths percent (0.78%) of the annual base payment amount, or the fixed contract amount of Eighteen Thousand Eighty -Six Dollars ($18,086). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 0.78% of the base payment amount, whichever is less. If CITY'S Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY will reduce the ENTITY's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ENTITY of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ENTITY. Dog Days HOT Funds, PY2017 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ENTITY's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ENTITY of the agreed payments of hotel tax funds specified above, ENTITY agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity, as authorized by TEX. TAX CODE §351.101(a) (3). Funds for any calendar year which are unused by midnight December 315 of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by ENTITY may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ENTITY's budget (Exhibit "A") and each such expenditure is directly attributable to work on programs which promote tourism and the hotel and convention industry, and promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of ENTITY for which hotel tax funds may be used shall not exceed that portion of ENTITY's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity, the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry and the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ENTITY shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of ENTITY in which the hotel tax funds shall be used by ENTITY. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not Dog Days HOT Funds, PY2017 - Page 3 pay to ENTITY any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ENTITY acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in ENTITY with respect to the hotel tax funds paid by CITY to ENTITY under this Agreement. ENTITY shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ENTITY, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ENTITY, without approval of the City Council by ordinance. 3.2 Separate Accounts. ENTITY shall maintain any hotel tax funds paid to ENTITY by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ENTITY shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ENTITY. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, ENTITY shall make such financial records available for inspection and review by the party making the request. ENTITY understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, ENTITY shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. ENTITY shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ENTITY shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ENTITY's Board of Directors, as well as any other meeting of any constituency of ENTITY, at which this Agreement or any matter subject to this Agreement shall be considered. Dog Days NOT Funds, PY2017 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017 and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse ENTITY for any contractual obligations of ENTITY undertaken by ENTITY in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ENTITY, or to assume the performance of any contractual obligations of ENTITY, for or under any contract entered into by ENTITY as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ENTITY will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ENTITY will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ENTITY after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: Dog Days HOT Funds, PY2017 - Page 5 (a) The termination of the legal existence of ENTITY; (b) The insolvency of ENTITY, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ENTITY for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ENTITY for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ENTITY to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, ENTITY agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ENTITY with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that ENTITY enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ENTITY shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. ENTITY shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ENTITY shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ENTITY shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ENTITY shall not be considered a partner or joint venturer with CITY, nor shall ENTITY be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ENTITY AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST Dog Days HOT Funds, PY2017 - Page 6 ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ENTITY OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ENTITY, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ENTITY shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY City Manager CITY OF DENTON 215 E. McKinney Denton, TX 76201 ENTITY Kevin Lechler DENTON DOG DAYS, INC. PO Box 1158 Denton, TX 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ENTITY and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. Dog Days HOT Funds, PY2017 - Page 7 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ENTITY shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this oPoll day of 2016. ATTEST: LON THE CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: JENNIFER WALTERS, - 6�i CITY SECRETARY CITY A DENT D G DAYS, INC By: Cha an/Director Dog Days HOT Funds, PY2017 - Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: Dog Days HOT Funds, PY2017 - Page 9 Exhibit A Denton Dog Days, Inc. Dog Days of Denton Celebration Program Year 2017 Budget Advertising Printed Matter $ 3,386 Internet/Website 7,700 Event Director Contract 4,000 Social Media Contract Labor 3,000 $ 18,086 Total Budget $ 18,086 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1336, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Festival Foundation, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $100,000 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1336, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, s:\Iegal\our documents\ordinances\16\11ot funds py201 Nestival foundation ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Festival Foundation, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY LOW APPROVED AS TO LEGAL FORM: A] NO CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON FESTIVAL FOUNDATION, INC. (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Festival Foundation, Inc. a legal entity incorporated under the laws of the State of Texas (the "FOUNDATION"): WHEREAS, TEX. TAX CODE §351.002 authorizes the CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, the CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes the CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, the FOUNDATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes the CITY to delegate by contract with the FOUNDATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, the CITY and the FOUNDATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by the FOUNDATION under this Agreement, the CITY agrees to pay to the FOUNDATION a portion of the hotel tax revenue collected by the CITY at the rates and in the manner specified herein (such payments by the CITY to the FOUNDATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by the City as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Festival Foundation HOT Funds, PY2017 - Page 1 Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for the CITY's fiscal year. It will include hotel tax revenue due to the City for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by the CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of the CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in. which this Agreement is in force. Contract quarters will end on March 31St, June 301n, September 30t", and December 3151 of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, the CITY shall pay to FOUNDATION an amount of money in each contract year equal to the lesser amount of Four and Thirty Hundredths percent (4.30%) of the annual base payment amount, or the fixed contract amount of One Hundred Thousand Dollars ($100,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless the CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 4.30% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget. projection, CITY may reduce the FOUNDATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by the CITY to the FOUNDATION of those amounts specified in 11.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25`x' day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. The CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. Festival Foundation HOT Funds, PY2017 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits the CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of the FOUNDATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of the CITY. (c) CITY may withhold further allocations if CITY determines that FOUNDATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by the CITY to the FOUNDATION of the agreed payments of hotel tax funds specified above, the FOUNDATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as well as the promotion of tourism through the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major arts forms, as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited, to signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the FOUNDATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in FOUNDATION's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the FOUNDATION for which hotel tax funds may be used shall not exceed that portion of the FOUNDATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. Festival Foundation HOT Funds, PY2017 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) The FOUNDATION shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of the FOUNDATION funded by hotel tax revenues. In other words, the CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. The CITY shall not pay to the FOUNDATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) The FOUNDATION acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in the FOUNDATION with respect to the hotel tax funds paid by the CITY to the FOUNDATION under this Agreement. The FOUNDATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a), and in the budget as approved by the CITY. (c) Upon the application or consent of FOUNDATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of FOUNDATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. The FOUNDATION shall maintain any hotel tax funds paid to the FOUNDATION by the CITY in a separate account or with segregated fund accounting, such that any reasonable person can review the source of expenditures of tax funds. 3.3 Financial Records. The FOUNDATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by the FOUNDATION. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, shall make such financial records available for inspection and review by the party making the request. FOUNDATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. GOv'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds and within thirty (30) days after the end of every contract quarter, FOUNDATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. The FOUNDATION shall respond promptly to any Festival Foundation HOT Funds, PY2017 - Page 4 request from the City Manager of the CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. The FOUNDATION shall give the City Manager of the CITY, or his designate, reasonable advance written notice of the time and place of all meetings of FOUNDATION's Board of Directors, as well as any other meeting of any constituency of the FOUNDATION at which this Agreement or any matter the subject of this Agreement shall be considered. This provision shall not be deemed to require the FOUNDATION to give notice of any executive session of the Executive Committee of the FOUNDATION. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017 and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, MIT Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), the CITY agrees to reimburse the FOUNDATION for any contractual obligations of the FOUNDATION undertaken by the FOUNDATION in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of the CITY to reimburse the FOUNDATION or to assume the performance of any contractual obligations of the FOUNDATION for or under any contract entered into by the FOUNDATION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), the FOUNDATION will provide the CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by the City; 3) within five (5) business days of a request from the CITY, a Festival Foundation HOT Funds, PY2017 - Page 5 listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. The FOUNDATION will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by the FOUNDATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of the FOUNDATION; (b) The insolvency of the FOUNDATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by the FOUNDATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either the CITY or the FOUNDATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of the FOUNDATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶T4.3 or 4.4, FOUNDATION agrees to refund any and all unused funds, or funds determined by the CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by the FOUNDATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that the FOUNDATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, the FOUNDATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE Ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. Festival Foundation HOT Funds, PY2017 - Page 6 5.2 Independent Contractor. The FOUNDATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of the CITY. The FOUNDATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and the FOUNDATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. The FOUNDATION shall not be considered a partner or joint venturer with the CITY, nor shall the FOUNDATION be considered nor in any manner hold itself out as an agent or official representative of the CITY. 5.3 Indemnification. THE FOUNDATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THE FOUNDATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF FOUNDATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. The FOUNDATION shall not assign this Agreement without first obtaining the written consent of the CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY FOUNDATION City Manager Carol Short CITY OF DENTON DENTON FESTIVAL FOUNDATION, INC. 215 E. McKinney P.O. Box 2104 Denton, TX 76201 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of the CITY and the FOUNDATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail Festival Foundation HOT Funds, PY2017 - Page 7 notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. The FOUNDATION shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), and 3. $500,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY 2016. THE CITY OF DENTON, TEXAS By: HOWARD MARTIN, CITY MANAGER APPROVED AS TO L ITA BURGKEY CITY ATT Festival Foundation HOT Funds/PY2017 - Page 8 ATTEST: Secretary DENTON FESTIVAL FOUNDATION, INC. By: &tszu4x�' Chairman/Director APPROVED AS TO LEGAL FORM: Festival Foundation HOT Funds, PY2017 - Page 9 Denton Festival Foundation, Inc. Denton Arts & Jazz Festival Program Year 2017 Budget Advertising Exhibit A Brochures $ 6,000 Magazines 6,000 Newspaper & Internet 5,000 Commercials / Photography 8,000 $ 25,000 Art Musicians Site Operations $ 48,000 27,000 $ 75,000 Total Budget $ 100,000 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1337, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Holiday Festival Association, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $17,700 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1337, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, sAlegal\our documents\ordinances\16\hot funds py2017\holiday festival ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Holiday Festival Association, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY :• APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY IM CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Holiday Festival Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Holiday Festival HOT Funds, PY2017 - Page 1 Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during fiscal year 2005, less: (1) attorney and auditing costs incurred during such period for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31 St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an amount of money in each contract year equal to the lesser amount of: Seventy -Six Hundredths percent (0.76%) of the annual base payment amount, or the fixed contract amount of Seventeen Thousand Seven Hundred Dollars ($17,700). This amount will be divided into two payments equal to 50% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The final payment will represent 50% of the fixed contract amount or the unpaid remainder of 0.76% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce ASSOCIATION's current budget at any time during the contract period. Each payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each payment shall be paid upon receipt of the required reports and after the 25' of April 2017 and after the 25th of July 2017. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. Holiday Festival HOT Funds, PY2017 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ASSOCIATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of the ASSOCIATION's administrative costs actually incurred in conducting the activities specified in 12.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. Holiday Festival HOT Funds, PY2017 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. GOVT CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or Holiday Festival HOT Funds, PY2017 - Page 4 designate. ASSOCIATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION, or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by ASSOCIATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to Holiday Festival HOT Funds, PY2017 - Page 5 return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating parry, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of Holiday Festival HOT Funds, PY2017 - Page 6 services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY City Manager CITY OF DENTON 215 E. McKinney Denton, TX 76201 ASSOCIATION Warren Dane DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. P. O. Box 2765 Denton, TX 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, Holiday Festival HOT Funds, PY2017 - Page 7 notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ASSOCIATION shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of , 2016. THE CITY OF DENTON, TEXAS By: HOWARD MARTIN, CITY MANAGER ATTEST: APPROVED AS TO LEGAL FORM: JENNIFER WALTERS, CITY SECRETARY Holiday Festival HOT 1 ATTEST: Secretary DENTON HOLIDAY FESTIVAL ASSOCIATION, INC. By: a' an/Direc or APPROVED AS TO LEGAL FORM: RM Holiday Festival HOT Funds, PY2017 - Page 9 Denton Holiday Lighting Festival Association, Inc. Denton Holiday lighting Festival Program Year 2017 Budget Advertising Magazines Internet Newspaper / Radio $ 750 4,325 2,625 $ 7,700 Art Site Operations (Stages, Generators, Fencing & Port A Potties) $ 8,000 Orchestra Fee 2,000 $ 10,000 Total Budget $ 17,700 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1338, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Kiwanis Club of Denton, Breakfast, Denton, TX, for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $5,325 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1338, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, s:\legal\our documents\ordinances\16\hot funds py2017\kiwanis club ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND KIWANIS CLUB OF DENTON, BREAKFAST, DENTON, TX, FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Kiwanis Club of Denton, Breakfast, Denton, Texas, for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12016. ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: I CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND KIWANIS CLUB OF DENTON, BREAKFAST, DENTON, TEXAS (TURKEY ROLL BICYCLE RALLY) (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY'), and Kiwanis Club of Denton, Breakfast, Denton, Texas, a legal entity incorporated under the laws of the State of Texas (the "CLUB"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, CLUB is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with CLUB, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and CLUB agree and contract as follows: L HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CLUB under this Agreement, CITY agrees to pay to CLUB a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to CLUB sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Kiwanis Club Breakfast HOT Funds, PY2017 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to CLUB an amount of money in each contract year equal to the lesser amount of Twenty -Three Hundredths percent (0.23%) of the annual base payment amount, or the fixed contract amount of Five Thousand Three Hundred Twenty -Five Dollars ($5,325). This amount will be paid in one lump sum after the 25th of January 2017. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce CLUB's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to CLUB of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25' day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of CLUB. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that CLUB's expenditures deviate materially from their approved budget. Kiwanis Club Breakfast HOT Funds, PY2017 - Page 2 II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to CLUB of the agreed payments of hotel tax funds specified above, CLUB agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 315' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audience outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the CLUB may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in CLUB's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the CLUB for which hotel tax funds may be used shall not exceed that portion of the CLUB's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) CLUB shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of CLUB in which the hotel tax funds shall be used by CLUB. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to CLUB any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) CLUB acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in CORPORATION with respect to the hotel tax funds paid by CITY to CLUB under this Agreement. CLUB shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(x) and in the budget as approved by CITY. Kiwanis Club Breakfast HOT Funds, PY2017 - Page 3 (c) Upon the application or consent of CLUB, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in 11.2(b), extend the term, or otherwise alter the performance obligations of CLUB, without approval of the City Council by ordinance. 3.2 Separate Accounts. CLUB shall maintain any hotel tax funds paid to CLUB by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. CLUB shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by CLUB. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, CLUB shall make such financial records available for inspection and review by the party making the request. CLUB understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. GOv'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, CLUB shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. CLUB shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. CLUB shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of CLUB's Board of Directors, as well as any other meeting of any constituency of CLUB, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. Kiwanis Club Breakfast HOT Funds, PY2017 - Page 4 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse CLUB for any contractual obligations of CLUB undertaken by CLUB in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse CLUB, or to assume the performance of any contractual obligations of CLUB, for or under any contract entered into by CLUB as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), CLUB will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. CLUB will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by CLUB after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of CLUB; (b) The insolvency of CLUB, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by CORPORATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or CLUB for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or Kiwanis Club Breakfast HOT Funds, PY2017 - Page 5 (d) The failure of CLUB to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, CLUB agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by CLUB with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that CLUB enters into any arrangement, contractual or otherwise, with such other entity, person or organization, CLUB shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. CLUB shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. CLUB shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and CLUB shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. CLUB shall not be considered a partner or joint venturer with CITY, nor shall CLUB be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. CLUB AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CLUB OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF CLUB, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. CLUB shall not assign this Agreement without first obtaining the written consent of CITY. Kiwanis Club Breakfast HOT Funds, PY2017 - Page 6 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY CLUB City Manager Mary Harris CITY OF DENTON KIWANIS CLUB OF DENTON BREAKFAST 215 E. McKinney DENTON, TX Denton, TX 76201 P. O. Box 1044 Denton, TX 76205 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and CLUB and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. CLUB shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), and Kiwanis Club Breakfast HOT Funds, PY2017 - Page 7 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: Secretary THE CITY OF DENTON, TEXAS BY: HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: :p-Appd, CITY ATTORNEY KIWANIS CLUB OF DENTON, BREAKFAST, DENTON, TEXAS ^, By: ', C . tnn rector v APPROVED AS TO LEGAL FORM: Lo Kiwanis Club Breakfast HOT Funds, PY2017 - Page 8 Denton Breakfast Kiwanis Turkey Roll Bicycle Rally Program Year 2017 Budget Advertising Printing and Postage Other Rally Booth Rental & Advertising CVB Coop Public Relations & Marketing Contract Exhibit A 2,250 1,075 1,500 500 Total Budget $ 5,325 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON Legislation Text File #: ID 16-1339, Version: 1 Agenda Information Sheet DEPARTMENT: Finance ACM: Bryan Langley Date: December 6, 2016 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Area Running Club for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $3,500 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner FXUTRTTC 1. Ordinance Respectfully submitted: City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1339, Version: 1 Chuck Springer, 349-8260 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, s:\legal\our documents\ordinances\16\hot funds py2017\area running club ordinance.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON AREA RUNNING CLUB FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Area Running Club for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .12016. ATTEST: JENNIFER WALTERS, CITY SECRETARY ON APPROVED AS TO LEGAL FORM: AN : CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON AREA RUNNING CLUB (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the DENTON AREA RUNNING CLUB, a legal entity incorporated under the laws of the State of Texas (the "AREA RUNNING CLUB"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, AREA RUNNING CLUB is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with AREA RUNNING CLUB, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and AREA RUNNING CLUB agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by AREA RUNNING CLUB under this Agreement, CITY agrees to pay to AREA RUNNING CLUB a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to AREA RUNNING CLUB sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Denton Area Running Club HOT Funds, PY2017 - Page 1 Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such period for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to AREA RUNNING CLUB an amount of money in each contract year equal to the lesser amount of: Fifteen Hundredths percent (0.15%) of the annual base payment amount, or the fixed contract amount of Three Thousand Five Hundred Dollars ($3,500). This amount will be paid in one lump sum after the 25th of January 2017. If CITY's Chief Financial Officer determines that hotel tax receipts to the CITY are not meeting the anticipated budget projection, CITY may reduce AREA RUNNING CLUB'S current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to AREA RUNNING CLUB of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter.. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of AREA RUNNING CLUB. Denton Area Running Club HOT Funds, PY2017 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that AREA RUNNING CLUB's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to AREA RUNNING CLUB of the agreed payments of hotel tax funds specified above, AREA RUNNING CLUB agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the AREA RUNNING CLUB may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in AREA RUNNING CLUB's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the AREA RUNNING CLUB for which hotel tax funds may be used shall not exceed that portion of the AREA RUNNING CLUB's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. Denton Area Running Club HOT Funds, PY2017 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) AREA RUNNING CLUB shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of AREA RUNNING CLUB in which the hotel tax funds shall be used by AREA RUNNING CLUB. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to AREA RUNNING CLUB any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) AREA RUNNING CLUB acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in AREA RUNNING CLUB with respect to the hotel tax funds paid by CITY to AREA RUNNING CLUB under this Agreement. AREA RUNNING CLUB shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of AREA RUNNING CLUB, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of AREA RUNNING CLUB, without approval of the City Council by ordinance. 3.2 Separate Accounts. AREA RUNNING CLUB shall maintain any hotel tax funds paid to AREA RUNNING CLUB by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. AREA RUNNING CLUB shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by AREA RUNNING CLUB. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, AREA RUNNING CLUB shall make such financial records available for inspection and review by the party making the request. AREA RUNNING CLUB understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. GOV'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, AREA RUNNING CLUB shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back Denton Area Running Club HOT Funds, PY2017 - Page 4 cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. AREA RUNNING CLUB shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. AREA RUNNING CLUB shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of AREA RUNNING CLUB's Board of Directors, as well as any other meeting of any constituency of AREA RUNNING CLUB, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse AREA RUNNING CLUB for any contractual obligations of AREA RUNNING CLUB undertaken by AREA RUNNING CLUB in satisfactory performance of those activities specified in ¶T2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse AREA RUNNING CLUB, or to assume the performance of any contractual obligations of AREA RUNNING CLUB, for or under any contract entered into by AREA RUNNING CLUB as contemplated herein, shall not exceed 66 2/3% of the current payment. (c) Further, upon termination pursuant to ¶4.2(a), AREA RUNNING CLUB will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget Denton Area Running Club HOT Funds, PY2017 - Page 5 will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. AREA RUNNING CLUB will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by AREA RUNNING CLUB after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in T¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of AREA RUNNING CLUB; (b) The insolvency of AREA RUNNING CLUB, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by AREA RUNNING CLUB for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or AREA RUNNING CLUB for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of AREA RUNNING CLUB to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶T4.3 or 4.4, AREA RUNNING CLUB agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by AREA RUNNING CLUB with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that AREA RUNNING CLUB enters into any arrangement, contractual or otherwise, with such other entity, person or organization, AREA RUNNING CLUB shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of Denton Area Running Club HOT Funds, PY2017 - Page 6 this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. AREA RUNNING CLUB shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. AREA RUNNING CLUB shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and AREA RUNNING CLUB shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. AREA RUNNING CLUB shall not be considered a partner or joint venturer with CITY, nor shall AREA RUNNING CLUB be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. AREA RUNNING CLUB AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY AREA RUNNING CLUB OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF AREA RUNNING CLUB, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. AREA RUNNING CLUB shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY City Manager CITY OF DENTON 215 E. McKinney Denton, TX 76201 AREA RUNNING CLUB Tony Roman DENTON AREA RUNNING CLUB PO Box 2591 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and AREA RUNNING CLUB and their respective successors and assigns. Denton Area Running Club HOT Funds, PY2017 - Page 7 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. AREA RUNNING CLUB shall, at a minimum, provide insurance as follows: 1. $5,000,000 Commercial General Liability, or $5,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) OR an Occupational Accident Insurance program if approved by the City's Risk Manager, and 3. $500,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of , 2016. THE CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER Denton Area Running Club HOT Funds, PY2017 - Page 8 ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: Secretary APPROVED AS TO LEGAL FORM: CITY ATTORNEY DENTON RUNNING CLUB Chairman/ irector APPROVED AS TO LEGAL FORM: Denton Area Running Club HOT Funds, PY2017 - Page 9 Exhibit A Road Runners Club of America Denton Area Running Club's Downtown Denton Turkey Trot Program Year 2017 Budget Advertising Banners $ 500 Posters 500 Flyers 1,000 Radio 1,500 Total Budget $ 3,500 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1340, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton African American Scholarship Foundation, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $8,000 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1340, Version: 1 Chuck Springer, 349-8260 Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, s:\legal\our documents\ordinances\16\hot funds py20l7\daasf ordinance. doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON AFRICAN AMERICAN SCHOLARSHIP FOUNDATION, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton African American Scholarship Foundation, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY B AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON AFRICAN AMERICAN SCHOLARSHIP FOUNDATION, INC. (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the DENTON AFRICAN AMERICAN SCHOLARSHIP FOUNDATION, INC., a legal entity incorporated under the laws of the State of Texas (the "AFRICAN AMERICAN SCHOLARSHIP"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, AFRICAN AMERICAN SCHOLARSHIP is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with AFRICAN AMERICAN SCHOLARSHIP, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and AFRICAN AMERICAN SCHOLARSHIP agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by AFRICAN AMERICAN SCHOLARSHIP under this Agreement, CITY agrees to pay to AFRICAN AMERICAN SCHOLARSHIP a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to AFRICAN AMERICAN SCHOLARSHIP sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: Denton African American Scholarship HOT Funds, PY2017 - Page I (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i. e. , fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such period for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31 St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to AFRICAN AMERICAN SCHOLARSHIP an amount of money in each contract year equal to the lesser amount of: Thirty -Four Hundredths percent (0.34%) of the annual base payment amount, or the fixed contract amount of Eight Thousand Ninety Dollars ($8,000). . This amount will be paid in one lump sum after the 25th of January 2017. If CITY's Chief Financial Officer determines that hotel tax receipts to the CITY are not meeting the anticipated budget projection, CITY may reduce AFRICAN AMERICAN SCHOLARSHIP's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to AFRICAN AMERICAN SCHOLARSHIP of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. Denton African American Scholarship HOT Funds, PY2017 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of AFRICAN AMERICAN SCHOLARSHIP. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that AFRICAN AMERICAN SCHOLARSHIP's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to AFRICAN AMERICAN SCHOLARSHIP of the agreed payments of hotel tax funds specified above, AFRICAN AMERICAN SCHOLARSHIP agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the AFRICAN AMERICAN SCHOLARSHIP may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in AFRICAN AMERICAN SCHOLARSHIP 's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the AFRICAN AMERICAN SCHOLARSHIP for which hotel tax funds may be used shall not exceed that portion of the AFRICAN AMERICAN SCHOLARSHIP's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. Denton African American Scholarship HOT Funds, PY2017 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) AFRICAN AMERICAN SCHOLARSHIP shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of AFRICAN AMERICAN SCHOLARSHIP in which the hotel tax funds shall be used by AFRICAN AMERICAN SCHOLARSHIP . In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to AFRICAN AMERICAN SCHOLARSHIP any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) AFRICAN AMERICAN SCHOLARSHIP acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in AFRICAN AMERICAN SCHOLARSHIP with respect to the hotel tax funds paid by CITY to AFRICAN AMERICAN SCHOLARSHIP under this Agreement. AFRICAN AMERICAN SCHOLARSHIP shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of AFRICAN AMERICAN SCHOLARSHIP, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of AFRICAN AMERICAN SCHOLARSHIP, without approval of the City Council by ordinance. 3.2 Separate Accounts. AFRICAN AMERICAN SCHOLARSHIP shall maintain any hotel tax funds paid to AFRICAN AMERICAN SCHOLARSHIP by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. AFRICAN AMERICAN SCHOLARSHIP shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by AFRICAN AMERICAN SCHOLARSHIP. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, AFRICAN AMERICAN SCHOLARSHIP shall make such financial records available for inspection and review by the party making the request. AFRICAN AMERICAN SCHOLARSHIP understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, AFRICAN AMERICAN SCHOLARSHIP shall furnish to CITY: (1) a completed financial report, Denton African American Scholarship HOT Funds, PY2017 - Page 4 (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. AFRICAN AMERICAN SCHOLARSHIP shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. AFRICAN AMERICAN SCHOLARSHIP shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of AFRICAN AMERICAN SCHOLARSHIP 's Board of Directors, as well as any other meeting of any constituency of AFRICAN AMERICAN SCHOLARSHIP , at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse AFRICAN AMERICAN SCHOLARSHIP for any contractual obligations of AFRICAN AMERICAN SCHOLARSHIP undertaken by AFRICAN AMERICAN SCHOLARSHIP in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in T¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse AFRICAN AMERICAN SCHOLARSHIP, or to assume the performance of any contractual obligations of AFRICAN AMERICAN SCHOLARSHIP, for or under any contract entered into by AFRICAN AMERICAN SCHOLARSHIP as contemplated herein, shall not exceed 66 2/3% of the current payment. (c) Further, upon termination pursuant to ¶4.2(a), AFRICAN AMERICAN SCHOLARSHIP will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Denton African American Scholarship HOT Funds, PY2017 - Page 5 Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. AFRICAN AMERICAN SCHOLARSHIP will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by AFRICAN AMERICAN SCHOLARSHIP after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of AFRICAN AMERICAN SCHOLARSHIP; (b) The insolvency of AFRICAN AMERICAN SCHOLARSHIP, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by AFRICAN AMERICAN SCHOLARSHIP for the benefit of creditors, (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or AFRICAN AMERICAN SCHOLARSHIP for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of AFRICAN AMERICAN SCHOLARSHIP to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶T4.3 or 4.4, AFRICAN AMERICAN SCHOLARSHIP agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. Denton African American Scholarship HOT Funds, PY2017 - Page 6 V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by AFRICAN AMERICAN SCHOLARSHIP with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that AFRICAN AMERICAN SCHOLARSHIP enters into any arrangement, contractual or otherwise, with such other entity, person or organization, AFRICAN AMERICAN SCHOLARSHIP shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. AFRICAN AMERICAN SCHOLARSHIP shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. AFRICAN AMERICAN SCHOLARSHIP shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and AFRICAN AMERICAN SCHOLARSHIP shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. AFRICAN AMERICAN SCHOLARSHIP shall not be considered a partner or joint venturer with CITY, nor shall AFRICAN AMERICAN SCHOLARSHIP be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. AFRICAN AMERICAN SCHOLARSHIP AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY AFRICAN AMERICAN SCHOLARSHIP OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF AFRICAN AMERICAN SCHOLARSHIP , ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. AFRICAN AMERICAN SCHOLARSHIP shall not assign this Agreement without first obtaining the written consent of CITY. Denton African American Scholarship HOT Funds, PY2017 - Page 7 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY AFRICAN AMERICAN SCHOLARSHIP City Manager Harry Eaddy CITY OF DENTON DENTON AFRICAN AMERICAN 215 E. McKinney SCHOLARSHIP FOUNDATION, INC. Denton, TX 76201 P.O. Box 1217 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and AFRICAN AMERICAN SCHOLARSHIP and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. AFRICAN AMERICAN SCHOLARSHIP shall, at a minimum, provide insurance as follows: $1,000,000 Commercial General Liability or Event Insurance, covering all events taking place on City -owned property, Denton African American Scholarship HOT Funds, PY2017 - Page 8 2. $500,000 Liquor/Dram Shop Liability for all events occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: Secretary 2016. THE CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY DENTON AFRICAN AMERICAN SCHOLARSHIP FOUNDATION, INC. AP: Denton African American Scholarship HOT Funds, PY2017 - Page 9 Denton African American Scholarship Foundation, Inc. Denton Black Film Festival Program Year 2017 Budget Advertising Social Media & Coops Printed Matter Billboards Art Speakers & Performers Sound Equipment Rental Exhibit A $ 3,200 1,000 1,800 $ 6,000 $ 1,000 1,000 $ 2,000 Total Budget $ 8,000 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1341, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Denton Community Market, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $15,500 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1341, Version: 1 Chuck Springer, 349-8260 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, s\legal\our documents\ordinances\16\hot funds py2017\community market ordinance I st.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON COMMUNITY MARKET, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Community Market, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AN] BY: CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COMMUNITY MARKET, INC. (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Community Market, a legal entity incorporated under the laws of the State of Texas (the "MARKET"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a)(3) and (a)(4) authorize the expenditure of municipal hotel tax revenues for advertising and promotional programs to attract tourists to the municipality or its vicinity, and in the promotion, improvement and application of the arts to promote tourism and the convention and hotel industry; and WHEREAS, MARKET is well equipped to perform those activities; and WHEREAS, TEx, TAX CODE §351.101(c) authorizes CITY to delegate by contract with MARKET, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and MARKET agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by MARKET under this Agreement, CITY agrees to pay to MARKET a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to MARKET sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Denton Community Market HOT Funds, PY2017 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 20th day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such period for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to MARKET an amount of money in each contract year equal to the lesser amount of: Sixty -Seven Hundredths percent (0.67%) of the annual base payment amount, or the fixed contract amount of Fifteen Thousand Five Hundred Dollars ($15,500). This amount will be divided into two payments equal to 50% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The final payment will represent 50% of the fixed contract amount or the unpaid remainder of 0.67% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce MARKET's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to MARKET of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each payment shall be paid upon receipt of the required reports and after the 25th of January 2017 and after the 25th of April 2017. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of MARKET. Denton Community Market HOT Funds, PY2017 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that MARKET'S expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to MARKET of the agreed payments of hotel tax funds specified above, MARKET agrees to use such hotel tax funds only for: (1) advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity, as authorized by TEX. TAX CODE §351.101(a) ; and (2) encourage promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms, as authorized by TEX. TAX CODE §351.101(a)(4). Funds for any calendar year which are unused by midnight December 31s' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the MARKET may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in MARKET'S budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the MARKET for which hotel tax funds may be used shall not exceed that portion of the MARKET's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. Denton Community Market HOT Funds, PY20 ] 7 - Page 3 III. RECORD KEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) MARKET shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of MARKET in which the hotel tax funds shall be used by MARKET. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to MARKET any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) MARKET acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in MARKET with respect to the hotel tax funds paid by CITY to MARKET under this Agreement. MARKET shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of MARKET, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in T1.2(b), extend the term, or otherwise alter the performance obligations of MARKET, without approval of the City Council by ordinance. 3.2 Separate Accounts. MARKET shall maintain any hotel tax funds paid to MARKET by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. MARKET shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by MARKET. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, MARKET shall make such financial records available for inspection and review by the party making the request. MARKET understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. GOVT CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, MARKET shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. MARKET shall Denton Community Market HOT Funds, PY2017 - Page 4 respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. MARKET shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of MARKET's Board of Directors, as well as any other meeting of any constituency of MARKET, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse MARKET for any contractual obligations of MARKET undertaken by MARKET in satisfactory performance of those activities specified in ¶T2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse MARKET, or to assume the performance of any contractual obligations of MARKET, for or under any contract entered into by MARKET as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), MARKET will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. MARKET will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by Denton Community Market HOT Funds, PY2017 - Page 5 MARKET after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of MARKET; (b) The insolvency of MARKET, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by MARKET for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or MARKET for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of MARKET to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to T¶4.3 or 4.4, MARKET agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by MARKET with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that MARKET enters into any arrangement, contractual or otherwise, with such other entity, person or organization, MARKET shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. MARKET shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. MARKET shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and MARKET shall be Denton Community Market HOT Funds, PY2017 - Page 6 solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. MARKET shall not be considered a partner or joint venturer with CITY, nor shall MARKET be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. MARKET AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY MARKET OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF MARKET, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. MARKET shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY MARKET City Manager Vicki Oppenheim CITY OF DENTON DENTON COMMUNITY MARKET, INC. 215 E. McKinney PO Box 30507 Denton, TX 76201 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and MARKET and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. Denton Community Market HOT Funds, PY2017 - Page 7 5.9 Duplicate Originals. This Agreement is executed in duplicate originals 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. MARKET shall, at a minimum, provide insurance as follows: 1. $5,000,000 Commercial General Liability, or $5,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000) OR an Occupational Accident Insurance program if approved by the City's Risk Manager, and 3. $500,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of 2016. ATTEST: L -on JENNIFER WALTERS, CITY SECRETARY THE CITY OF DENTON, TEXAS IM HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: Denton Community Market HOT Funds, PY2017 - Page 8 ATTEST: DENTON COMMUNITY MARKET, INC. By: /�' (v cju Chairman/ Director EXeu4rk APPROVED AS TO LEGAL FORM: By:�r /- M' By: Secretary Denton Community Market HOT Funds, PY2017 - Page 9 Denton Community Market Program Year 2017 Budget Advertising Exhibit A Coordinator Salary $ 1,400 Publications 3,500 Printed Matter 975 $ 5,875 Art Coordinators Salary $ 4,375 Performers 5,250 $ 9,625 Total Budget $ 15,500 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1342, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an interlocal agreement between the City of Denton and Denton County for the payment and use of hotel tax revenue in support of the Denton County Office of History and Culture; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $150,000 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1342, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, S:\Legal\Our Documents\Ordinances\16\HOT Funds PY2017\Denton County Ordinance lst.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE IN SUPPORT OF THE DENTON COUNTY OFFICE OF HISTORY AND CULTURE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton County Office of History and Culture for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C. APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY, TEXAS (DENTON COUNTY OFFICE OF HISTORY AND CULTURE) (PY 2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and County of Denton, Texas, a governmental entity existing under the laws of the State of Texas, contracting on behalf of its Office of History and Culture (collectively, the "COUNTY"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality, or its vicinity; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with COUNTY, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; WHEREAS, both CITY and COUNTY have a secondary source of authority to enter into the Agreement as an inter -local cooperation agreement, pursuant to Chapter 791 of the Texas Government Code, as: the Agreement is authorized by both governmental bodies; the Agreement states the purpose, terms, rights, and duties of the contracting parties; the consideration is being paid by CITY out of current revenues; the compensation is fair; and the services to be performed are "museum services" authorized under §791.003(3)(F) of the Texas Government Code, which each parry is authorized to perform individually; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and COUNTY agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by COUNTY under this Agreement, CITY agrees to pay to COUNTY a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to COUNTY sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: County HOT Funds, PY2017 -- Page 1 (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against or auditing of such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to COUNTY an amount of money in each contract year equal to the lesser amount of Six and Forty -Five Hundredths percent (6.45%) of the annual base payment amount, or the fixed contract amount of One Hundred Fifty Thousand Dollars ($150,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 6.45% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce COUNTY's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to COUNTY of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25' day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be County HOT Funds, PY2017 -- Page 2 held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of COUNTY. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that COUNTY's expenditures deviate materially from their approved budget. H. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to COUNTY of the agreed payments of hotel tax funds specified above, COUNTY agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by COUNTY may be spent for day-to-day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in COUNTY's budget (Exhibit "A") and each are directly attributable to work on programs, which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) COUNTY agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by TEX. TAX CODE §351.101(f) and §351.108 (c) and (d). COUNTY shall not utilize hotel tax funds for any expenditure which has not been specifically documented to satisfy the purposes set forth in T¶2.1 and 2.2 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. County HOT Funds, PY2017 -- Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) COUNTY shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of COUNTY funded by hotel tax revenue. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to COUNTY any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) COUNTY acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in COUNTY with respect to the hotel tax funds paid by CITY to COUNTY under this Agreement. COUNTY shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a), and in the budget as approved by CITY. (c) Upon the application or consent of COUNTY, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of COUNTY, without approval of the City Council by ordinance. 3.2 Separate Accounts. COUNTY shall maintain any hotel tax funds paid to COUNTY by CITY in a separate checking account or with segregated fund accounting, such that any reasonable person can review the revenue source of any given expenditure. 3.3 Financial Records. COUNTY shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by COUNTY. These funds shall be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees and attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, COUNTY shall make such financial records available for inspection and review by the party making the request. COUNTY understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty (30) days after the end of every contract quarter, COUNTY shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures made or copies of the invoice or receipts with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). COUNTY shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. COUNTY shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. County HOT Funds, PY2017 -- Page 4 3.5 Notice of Meetings. COUNTY shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of COUNTY's Commissioners Court, as well as any other meeting of any constituency of COUNTY at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017 and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse COUNTY for any contractual obligations of COUNTY undertaken by COUNTY in satisfactory performance of those activities specified in ¶T2.1 and 2.2 above and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse COUNTY or to assume the performance of any contractual obligations of BUREAU for or under any contract entered into by COUNTY as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), COUNTY will provide CITY: 1) within ten (t 0) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. COUNTY will be obligated to return any unused funds or funds determined to be used improperly. Any use of remaining funds by COUNTY after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services County HOT Funds, PY2017 -- Page 5 contemplated in ¶T2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of COUNTY; (b) The insolvency of COUNTY, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by COUNTY for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or COUNTY for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of COUNTY to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, COUNTY agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by COUNTY with another private entity, person, or organization for the performance of those services described in 12.1 above. In the event that COUNTY enters into any arrangement, contractual or otherwise, with such other entity, person or organization, COUNTY shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. COUNTY shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. COUNTY shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same and COUNTY shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. COUNTY shall not be considered a partner or joint venturer with CITY, nor shall County HOT Funds, PY2017 -- Page 6 COUNTY be considered nor in any manner hold itself out as an agent or official representative of CITY. 5.3 Indemnification. COUNTYAGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY COUNTYOF 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 OFCOUNTY, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. COUNTY shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY COUNTY City Manager Peggy Riddle CITY OF DENTON DENTON COUNTY OFFICE OF HISTORY 215 E. McKinney AND CULTURE Denton, TX 76201 110 West Hickory Denton, TX 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and COUNTY and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. County HOT Funds, PY2017 -- Page 7 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. COUNTY shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served, and 4. $500,000 Business Automobile Liability on any owned, non -owned or hired vehicles. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of ATTEST: IN JENNIFER WALTERS, CITY SECRETARY 2016. THE CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: County HOT Funds, PY2017 -- Page 8 ATTEST: By: Secretary DENTOX COUNTY OFFICE OF HISTORY AN LTURE rhAA By: Chair, an/Direct r„ - County HOT Funds, PY2017 -- Page 9 TO LEGAL FORM: Exhibit A Denton County Office of History & Culture Denton County Museums Program Year 2017 Budget Advertising Magazines, Newspapers & Digital Media $ 10,000 Visitors Guide 1,000 Brochures 4,000 $ 15,000 Historical Contract Labor $ 37,000 Archival Supplies 10,000 New Exhibit Supplies 18,000 Restoration of Taylor Log Cabin & Reconstruction of Barn 30,000 Restoration of Wood Home (Quakertown House) 40,000 $ 135,000 Total Budget $ 150,000 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1344, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Greater Denton Arts Council, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $140,000 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1344, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, s:\legal\our documents\ordinances\16\hot funds py2017\gdac ordinance 1 st.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Greater Denton Arts Council, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 52016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY mv APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND THE GREATER DENTON ARTS COUNCIL, INC. (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Greater Denton Arts Council, Inc., a non-profit corporation incorporated under the laws of the State of Texas (the "GDAC"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the city of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, GDAC is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with GDAC; as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and GDAC agree and contract as follows: L HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by GDAC under this Agreement, CITY agrees to pay to GDAC a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to GDAC sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. GDAC HOT Funds, PY2017 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31 June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to GDAC an amount of money in each contract year equal to the lesser amount of: Six and Two Hundredths percent (6.02%) of the annual base payment amount, or the fixed contract amount of One Hundred Forty Thousand Dollars ($140,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 6.02% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the GDAC's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to GDAC of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports, and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. GDAC HOT Funds, PY2017 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of GDAC. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that GDAC's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to GDAC of the agreed payments of hotel tax funds specified above, GDAC agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity and by the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms. Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by GDAC may be spent for day-to-day operations, office supplies, salaries, travel expenses and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in GDAC's budget (Exhibit "A") and each such expenditure is directly attributable to work on programs which promote tourism and the hotel and convention industry, and promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) GDAC agrees to demonstrate strict compliance with the record keeping and apportionment limitations imposed by TEX. TAX CODE §351.101(f) and §351.108 (c) and (d). GDAC shall not utilize hotel tax funds for any expenditure, which has not been specifically documented to satisfy the purposes set forth in ¶T2.1 and 2.2 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity, the primary purpose of which is not directly related to the promotion of GDAC HOT Funds, PY2017 - Page 3 local tourism and the convention and hotel industry and the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) GDAC shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of GDAC in which the hotel tax funds shall be used by GDAC. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to GDAC any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) GDAC acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in GDAC with respect to the hotel tax funds paid by CITY to GDAC under this Agreement. GDAC shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of GDAC, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of GDAC, without approval of the City Council by ordinance. 3.2 Separate Accounts. GDAC shall maintain any hotel tax funds paid to GDAC by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. GDAC shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by GDAC. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, GDAC shall make such financial records available for inspection and review by the party making the request. GDAC understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. GOVT CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every contract quarter, GDAC shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all GDAC HOT Funds, PY2017 - Page 4 financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). GDAC shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. GDAC shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. GDAC shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of GDAC's Board of Directors, as well as any other meeting of any constituency of GDAC, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse GDAC for any contractual obligations undertaken by GDAC in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse GDAC, or to assume the performance of any contractual obligations of GDAC, for or under any contract entered into by GDAC as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), GDAC will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget, the budget will be considered approved; 2) within thirty (30) days, a GDAC HOT Funds, PY2017 - Page 5 full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. GDAC will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by GDAC after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of GDAC; (b) The insolvency of GDAC, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by GDAC for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or GDAC for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of GDAC to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, GDAC agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (3 0) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by GDAC with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that GDAC enters into any arrangement, contractual or otherwise, with such other entity, person or organization, GDAC shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds GDAC HOT Funds, PY2017 - Page 6 maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. GDAC shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. GDAC shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and GDAC shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. GDAC shall not be considered a partner or joint venturer with CITY, nor shall GDAC be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. GDAC AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY, OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY GDAC OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF GDAC, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. GDAC shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY GDAC City Manager Tracy Bays -Boothe CITY OF DENTON GREATER DENTON ARTS COUNCIL, 215 E. McKinney INC. Denton, TX 76201 400 E. Hickory Denton, TX 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and GDAC and their respective successors and assigns. GDAC HOT Funds, PY2017 - Page 7 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. GDAC shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,0001$500,000/$100,000), 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City - owned property where alcohol will be provided or served, and 4. $500,000 Business Automobile Liability on any owned, non -owned or hired vehicles. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of 2016. GDAC HOT Funds, PY2017 - Page 8 ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: Secretary THE CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: ANITA BUR CITY ATTO GREATER INC. / SS N ARTS COUNCIL, r pw / 111 N�E APPROVED AS TO LEGAL FORM: GDAC HOT Funds, PY2017 - Page 9 Greater Denton Arts Council Program Year 2017 Budget Advertising Website Partial Salary Direct Promotion: Print, Internet, News/Mag Exhibit A $ 15,000 2,000 $ 17,000 Convention Center Facility Staff $ 30,000 Art Executive Director Partial Salary Administrative Staff Partial Salary Exhibition Partial Salary Exhibition Honorees and Displays Office Supplies $ 33,000 10,000 20,000 25,000 5,000 $ 93,000 Total Budget $ 140,000 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1345, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Central Business District Association, Inc., d/b/a Denton Main Street Association for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $30,369 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1345, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, sAlegallour documents\ordinances\16\hot funds py201?\main street ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CENTRAL BUSINESS DISTRICT ASSOCIATION, INC., d/b/a DENTON MAIN STREET ASSOCIATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the Denton Central Business District Association, Inc., d/b/a Denton Main Street Association for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FO ANITA BURGESS,_TTORNEY IC AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CENTRAL BUSINESS DISTRICT ASSOCIATION INC., (DENTON MAIN STREET ASSOCIATION) (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Denton Central Business District Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: L HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Main Street HOT Funds, PY2017 - Page 1 Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31 st, June 3011, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay ASSOCIATION an amount of money in each contract year equal or lesser amount of: One and Thirty -One Hundredths percent (1.31 %) of the annual base payment amount, or the fixed contract amount of Thirty Thousand Three Hundred Sixty -Nine Dollars ($30,369). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 1.31% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the ASSOCIATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. Main Street HOT Funds, PY2017 - Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a) (3). Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from CITY by ASSOCIATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A") and each such expenditure is directly attributable to work on programs which promote tourism and the hotel and convention industry, and promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry and the performance of the person's job in an efficient and professional manner. Main Street HOT Funds, PY2017 - Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e. g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or Main Street HOT Funds, PY2017 - Page 4 designate. ASSOCIATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to 14.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by the ASSOCIATIION as contemplated herein shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds Main Street HOT Funds, PY2017 - Page 5 by the ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, Main Street HOT Funds, PY2017 - Page 6 employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THE ASSOCIATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY City Manager CITY OF DENTON 215 E. McKinney Denton, TX 76201 ASSOCIATION Christine Gossett DENTON CENTRAL BUSINESS DISTRICT ASSOCIATION, INC. (Denton Main Street Association) PO Box 2017 Denton, Texas 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. Main Street HOT Funds, PY2017 - Page 7 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ASSOCIATION shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of , 2016. ATTEST: am THE CITY OF DENTON, TEXAS LOSE HOWARD MARTIN, CITY MANAGER JENNIFER WALTERS, �NITA CITY SECRETARY CITY A LEGAL FO DENT9K CENTRAL BUSINESS DISTRICT ASS CIATION, INC. (Denton Main Street By: Chairman/Dire Main Street HOT Funds, PY2017 - Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: 0 Main Street HOT Funds, PY2017 - Page 9 Denton Main Street Association Downtown Denton Promotion & Special Events Twilight Tunes, Arts Antiques & Autos Program Year 2017 Budget Advertising AAA Brochures Downtown Visitor Guide Printed Matter Social Media Campaigns Denton Live Ads Billboards Website Postage Contract Labor Membership R Exhibit A 850 7,244 3,000 3,500 2,000 1,750 1,750 375 9,500 400 Total Budget $ 30,369 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1346, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Music Theatre of Denton for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $5,250 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1346, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, sAlegal\our documents\ordinances\161hot funds py2017\music theatre ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND MUSIC THEATRE OF DENTON FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Music Theatre of Denton for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY :• APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND MUSIC THEATRE OF DENTON (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the Music Theatre of Denton, a legal entity incorporated under the laws of the State of Texas (the "THEATRE"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, THEATRE is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with THEATRE, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and THEATRE agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by THEATRE under this Agreement, CITY agrees to pay to THEATRE a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to THEATRE sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Music Theatre of Denton HOT Funds, PY2017 - Page I (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30t'', September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to THEATRE an amount of money in each contract year equal to the lesser amount of Twenty -Three Hundredths percent (0.23%) of the annual base payment amount, or the fixed contract amount of Five Thousand Two Hundred Fifty Dollars ($5,250). This amount will be paid in one lump sum after the 25th of January 2017. If CITY's Chief Financial Officer determines that hotel tax receipts to the CITY are not meeting the anticipated budget projection, CITY may reduce THEATRE's current budget at any time during the contract period. Payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to THEATRE of those amounts specified in T1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of THEATRE. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. Music Theatre of Denton HOT Funds, PY2017 - Page 2 (c) CITY may withhold further allocations if CITY determines that THEATRE's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to THEATRE of the agreed payments of hotel tax funds specified above, THEATRE agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31' of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the THEATRE may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in THEATRE's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the THEATRE for which hotel tax funds may be used shall not exceed that portion of the THEATRE's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) THEATRE shall prepare and submit to the City Manager of CITY an annual budget (see Exhibit "A") as approved by the City Council for each calendar year, for all operations of THEATRE in which the hotel tax funds shall be used by THEATRE. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to THEATRE any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. Music Theatre of Denton HOT Funds, PY2017 - Page 3 (b) THEATRE acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in THEATRE with respect to the hotel tax funds paid by CITY to THEATRE under this Agreement. THEATRE shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of THEATRE, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of THEATRE, without approval of the City Council by ordinance. 3.2 Separate Accounts. THEATRE shall maintain any hotel tax funds paid to THEATRE by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. THEATRE shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by THEATRE. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, THEATRE shall make such financial records available for inspection and review by the party making the request. THEATRE understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, THEATRE shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e. g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. THEATRE shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. THEATRE shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of THEATRE's Board of Directors, as well as any other meeting of any constituency of THEATRE, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter Music Theatre of Denton HOT Funds, PY2017 - Page 4 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse THEATRE for any contractual obligations of THEATRE undertaken by THEATRE in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse THEATRE, or to assume the performance of any contractual obligations of THEATRE, for or under any contract entered into by THEATRE as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), THEATRE will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. THEATRE will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by THEATRE after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in T¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of THEATRE; (b) The insolvency of THEATRE, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by THEATRE for the benefit of creditors; Music Theatre of Denton HOT Funds, PY2017 - Page 5 (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or THEATRE for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of THEATRE to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to T¶4.3 or 4.4, THEATRE agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by THEATRE with another private entity, person, or organi- zation for the performance of those services described in ¶2.1 above. In the event that THEATRE enters into any arrangement, contractual or otherwise, with such other entity, person or organization, THEATRE shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. THEATRE shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. THEATRE shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and THEATRE shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. THEATRE shall not be considered a partner or joint venturer with CITY, nor shall THEATRE be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. THEATRE AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY THEATRE OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN Music Theatre of Denton HOT Funds, PY2017 - Page 6 WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF THEATRE, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. THEATRE shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY THEATRE City Manager David Pierce CITY OF DENTON MUSIC THEATRE OF DENTON 215 E. McKinney 214 West Hickory Denton, TX 76201 Denton, Texas 76201 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and THEATRE and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. Music Theatre of Denton HOT Funds, PY2017 - Page 7 5.12 Insurance. THEATRE shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,0001$500,000/$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this ATTEST: am JENNIFER WALTERS, CITY SECRETARY ATTEST: By: Secretary day of 2016. THE CITY OF DENTON, TEXAS By: HOWARD MARTIN, CITY MANAGER TO LEGAL NITA BUSS, CITY O j'S THEATRE OF DENTON. By: Chairman/Director APPROVED AS TO LEGAL FORM: Music Theatre of Denton HOT Funds, PY2017 - Page 8 Exhibt A Music Theatre of Denton 2017 Season Program Year 2017 Budget Advertising Billboards $ 2,400 Social Media 1,800 Printed Matter & Postage 1,050 Total Budget $ 5,250 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1347, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2106 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the North Texas State Fair Association for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $150,000 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1347, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, sAlegal\our documents\ordinances\16\hot funds py201 7\ntsford.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS STATE FAIR ASSOCIATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and the North Texas State Fair Association for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of )2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY lim API AN IM CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE NORTH TEXAS STATE FAIR ASSOCIATION (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and the North Texas State Fair Association, a non-profit corporation incorporated under the laws of the State of Texas (the "ASSOCIATION"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. North Texas State Fair HOT Funds, PY2017 — Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an amount of money in each contract year equal to the lesser amount of Six and Forty -Five Hundredths percent (6.45%) of the annual base payment amount, or the fixed contract amount of One Hundred Fifty Thousand Dollars ($150,000). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 6.45% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce the ASSOCIATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. North Texas State Fair HOT Funds, PY2017 — Page 2 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited- to, imitedto, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ASSOCIATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of the ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. North Texas State Fair HOT Funds, PY2017 — Page 3 III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonably advance written request of the Denton City Council, the City Manager or designate, or any other person, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax fund, and within thirty (30) days after the end of every contract quarter, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). ASSOCIATION shall prepare and deliver all reports in a form and manner approved by the City Manager or designate. ASSOCIATION shall North Texas State Fair HOT Funds, PY2017 — Page 4 respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by ASSOCIATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) North Texas State Fair HOT Funds, PY2017 — Page 5 within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. North Texas State Fair HOT Funds, PY2017 — Page 6 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY ASSOCIATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY City Manager CITY OF DENTON 215 E. McKinney Denton, TX 76201 ASSOCIATION Glenn Carlton NORTH TEXAS STATE FAIR ASSOCIATION P. O. Box 1695 Denton, TX 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. North Texas State Fair HOT Funds, PY2017 — Page 7 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ASSOCIATION shall, at a minimum, provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,000/$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City - owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this day of 2016. THE CITY OF DENTON, TEXAS IIn HOWARD MARTIN, CITY MANAGER North Texas State Fair HOT Funds, PY2017 - Page 8 ATTEST: JENNIFER WALTERS, CITY SECRETARY ATTEST: X�cu�vt .Jt rZ7zw' APPROVED AS TO LEGAL FORM: CITY ATTORNEY NORTH TEXAS ATE FAIR ASSOCIATIO By: President APPROVED AS TO LEGAL FORM: North Texas State Fair HOT Funds, PY2017 — Page 9 Exhibit A North Texas State Fair Association North Texas State Fair & Rodeo Program Year 2017 Budget Advertising Internet $ 10,000 Radio 40,000 Hispanic Radio 10,000 Newspaper & Magazine 5,000 Billboards 13,000 Television 22,000 Marketing/Advertising Salary 50,000 Total Budget $ 150,000 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1348, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6. 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and the Tejas Storytelling Association, Inc. for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $52,747 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1348, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, sAlegal\our documents\ordinances\16\hot funds py2017\tejas ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND THE TEJAS STORYTELLING ASSOCIATION, INC. FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and The Tejas Storytelling Association, Inc. for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: .4 lM CHRIS WATTS, MAYOR AGREEMENT BETWEEN THE CITY OF DENTON AND THE TEJAS STORYTELLING ASSOCIATION, INC. (PY2017), PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and The Tejas Storytelling Association, Inc., a legal entity incorporated under the laws of the State of Texas (the "ASSOCIATION"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, ASSOCIATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODe §351.101(c) authorizes CITY to delegate by contract with ASSOCIATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and ASSOCIATION agree and contract as follows: L HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by ASSOCIATION under this Agreement, CITY agrees to pay to ASSOCIATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to ASSOCIATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Tejas HOT Funds, PY2017 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31st, June 30th, September 30th, and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to ASSOCIATION an amount of money in each contract year equal to the lesser amount of: Two and Twenty -Seven Hundredths percent (2.27%) of the annual base payment amount, or the fixed contract amount of Fifty -Two Thousand Seven Hundred Forty -Seven Dollars ($52,747). This amount will be divided into quarterly payments equal to 25% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The fourth quarterly payment will represent 25% of the fixed contract amount or the unpaid remainder of 2.27% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce ASSOCIATION's current budget at any time during the contract period. Each quarterly payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "quarterly payments" shall mean payments by CITY to ASSOCIATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each quarterly payment shall be paid upon receipt of the required reports and after the 25th day following the last day of the contract quarter. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold the quarterly payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of ASSOCIATION. Tejas HOT Funds, PY2017 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that ASSOCIATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to ASSOCIATION of the agreed payments of hotel tax funds specified above, ASSOCIATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity's; as well as the encouragement, promotion, improvement, and application of the arts including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31" of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audiences outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the ASSOCIATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in ASSOCIATION's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the ASSOCIATION for which hotel tax funds may be used shall not exceed that portion of the ASSOCIATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) ASSOCIATION shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of ASSOCIATION in which the hotel tax funds shall be used by ASSOCIATION. In other words, CITY should be able to audit specifically the Tejas HOT Funds, PY2017 - Page 3 purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax funds. CITY shall not pay to ASSOCIATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. (b) ASSOCIATION acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in ASSOCIATION with respect to the hotel tax funds paid by CITY to ASSOCIATION under this Agreement. ASSOCIATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §351.101(a) and in the budget as approved by CITY. (c) Upon the application or consent of ASSOCIATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of ASSOCIATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. ASSOCIATION shall maintain any hotel tax funds paid to ASSOCIATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. ASSOCIATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by ASSOCIATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, ASSOCIATION shall make such financial records available for inspection and review by the party making the request. ASSOCIATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of the hotel tax funds, and within thirty (30) days after the end of every contract quarter, ASSOCIATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back of cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. ASSOCIATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. ASSOCIATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of ASSOCIATION's Board of Directors, as well as any other meeting of any constituency of ASSOCIATION, at which this Agreement or any matter subject to this Agreement shall be considered. Tejas HOT Funds, PY2017 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017 and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to 14.2(a), CITY agrees to reimburse ASSOCIATION for any contractual obligations of ASSOCIATION undertaken by ASSOCIATION in satisfactory performance of those activities specified in ¶T2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶T2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse ASSOCIATION, or to assume the performance of any contractual obligations of ASSOCIATION, for or under any contract entered into by ASSOCIATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), ASSOCIATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget, the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. ASSOCIATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by ASSOCIATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶T2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: Tejas HOT Funds, PY2017 - Page 5 (a) The termination of the legal existence of ASSOCIATION; (b) The insolvency of ASSOCIATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by ASSOCIATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or ASSOCIATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of ASSOCIATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶1.3 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, ASSOCIATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by ASSOCIATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that ASSOCIATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, ASSOCIATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. ASSOCIATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. ASSOCIATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and ASSOCIATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. ASSOCIATION shall not be considered a partner or joint venturer with CITY, nor shall ASSOCIATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. ASSOCIATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER HIND OR CHARACTER, ARISING OUT OF OR IN Tejas HOT Funds, PY2017 - Page 6 CONNECTION WITH THE PERFORMANCE BY ASSOCIATION OF THOSE SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL SUCH CLAIMS OR CAUSES OF ACTION BASED UPON COMMON, CONSTITUTIONAL OR STATUTORY LAW, OR BASED, IN WHOLE OR IN PART, UPON ALLEGATIONS OF NEGLIGENT OR INTENTIONAL ACTS OF ASSOCIATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. ASSOCIATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY City Manager CITY OF DENTON 215 E. McKinney Denton, TX 76201 ASSOCIATION Elizabeth Ellis THE TEJAS STORYTELLING ASSOCIATION, INC. P. O. Box 2806 Denton, TX 76202 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and ASSOCIATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of the City of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Tejas HOT Funds, PY2017 - Page 7 Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. 5.12 Insurance. ASSOCI.ATION shall provide insurance as follows: L $500,000 Commercial General Liability, or $1,000,000 Event hisurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers" Liability ($100,000/$500,0001S100,000). and 3. $250,000 Liquor/Drain Shop Liability for any event occurring on City -awned property- where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation) and proof of coverage shall be submitted prior to any payment by CITY. EXECUTED this day of , 2016. ATTEST: THE CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: By: By: JENNIFER WALTERS, CITY SECRETARY THF ASS Tejas HOT Funds, PY2017 - Page 8 ATTEST: Secretary APPROVED AS TO LEGAL FORM: LIZA Tejas HOT Funds, PY2017 - Page 9 Exhibt A Tejas Storytelling Association Tejas Storytelling Festival Program Year 2017 Budget Advertising Radio & Television $ 17,937 Photography 550 Print Advertising 10,000 Internet 3,000 Direct Marketing 4,660 Contract Labor 3,750 $ 39,897 Art Performers Site Operations $ 9,600 3,250 $ 12,850 Total Budget $ 52,747 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1349, Version: 1 DEPARTMENT: ACM: Date: Finance Bryan Langley December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute an agreement between the City of Denton and Texas Filmmakers' Corporation for the payment and use of hotel tax revenue; and providing an effective date. BACKGROUND This organization is recommended to receive funding from the Hotel Occupancy Tax funds. This contract is for a thirteen month term beginning January 1, 2017 through midnight January 31, 2018. Allocations are dependent upon requests for funding, as well as availability of revenues. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Hotel Occupancy Tax Committee reviewed all budget applications and recommended allocations to the City Council as part of the FY 2016-2017 budget development process. FISCAL INFORMATION The Hotel Occupancy Tax allocation for this organization is $15,769 for FY 2016-2017 and has been included in the Annual Program of Services. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance Respectfully submitted: Chuck Springer, 349-8260 City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1349, Version: 1 Director of Finance Prepared by: Randee Klingele Treasury Services Specialist City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, Olegal\our documents\ordinances\16\hot funds py2017\texas filmmakers ord.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND TEXAS FILMMAKERS' CORPORATION FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Texas Filmmakers' Corporation for the payment and use of hotel tax revenue, under the terms and conditions contained in the agreement, a copy of which is attached hereto and made a part hereof. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 32016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY mm APPROVED AS TO LEGAL FORM: AGREEMENT BETWEEN THE CITY OF DENTON AND TEXAS FILMMAKERS' CORPORATION (PY2017) PROVIDING FOR THE PAYMENT AND USE OF HOTEL TAX REVENUE THIS AGREEMENT made between the City of Denton, Texas, a municipal corporation (the "CITY"), and Texas Filmmakers' Corporation, a legal entity incorporated under the laws of the State of Texas (the "CORPORATION"): WHEREAS, TEX. TAX CODE §351.002 authorizes CITY to levy by ordinance a municipal hotel occupancy tax ("hotel tax") not exceeding seven percent (7%) of the consideration paid by a hotel occupant; and WHEREAS, by ordinance, CITY has provided for the assessment and collection of a municipal hotel occupancy tax in the City of Denton of seven percent (7%); and WHEREAS, TEX. TAX CODE §351.101(a) authorizes CITY to use revenue from its municipal hotel occupancy tax to promote tourism and the convention and hotel industry by advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; and WHEREAS, CORPORATION is well equipped to perform those activities; and WHEREAS, TEX. TAX CODE §351.101(c) authorizes CITY to delegate by contract with CORPORATION, as an independent entity, the management and supervision of programs and activities of the type described hereinabove funded with revenue from the municipal hotel occupancy tax; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein, CITY and CORPORATION agree and contract as follows: I. HOTEL TAX REVENUE PAYMENT 1.1 Consideration. For and in consideration of the activities to be performed by CORPORATION under this Agreement, CITY agrees to pay to CORPORATION a portion of the hotel tax revenue collected by CITY at the rates and in the manner specified herein (such payments by CITY to CORPORATION sometimes herein referred to as the "agreed payments" or "hotel tax funds"). 1.2 Amount of Payments. (a) As used in this Agreement, the following terms shall have the following specific meanings: (i) The term "hotel tax revenue" shall mean the gross monies collected and received by CITY as municipal hotel occupancy tax at the rate of seven percent (7%) of the price paid for a room in a hotel, pursuant to Texas Tax Code §351.002 and City Ordinance. Hotel tax revenue will include penalty and interest related to the late payments of the tax revenue by the taxpayer. Texas Filmmakers HOT Funds, PY2017 - Page 1 (ii) The term "Collection period" will mean the collection period for CITY's fiscal year. It will include hotel tax revenue due to CITY for the relevant fiscal year and collected through the 22nd day of the month following the close of the relevant fiscal year. (iii) The term "base payment amount" shall mean a net amount of money equal to the total hotel tax revenue collected by CITY during any relevant period of time (i.e., fiscal year or fiscal quarter), less: (1) attorney and auditing costs incurred during such relevant period of time for costs of collection or auditing of hotel taxpayers (attorney and auditing costs include fees paid to attorneys or agents not in the regular employ of CITY for which attorneys or agents effect compliance or collection of the hotel tax from taxpayers); and (2) court costs and other expenses incurred in litigation against, or auditing of, such taxpayers. (iv) The term "contract quarter" shall refer to any quarter of the calendar year in which this Agreement is in force. Contract quarters will end on March 31St, June 30, September 30t'', and December 31St of each contract year. (b) In return for satisfactory performance of the activities set forth in this Agreement and all attachments hereto, CITY shall pay to CORPORATION an amount of money in each contract year equal to the lesser amount of Sixty -Eight Hundredths percent (0.68%) of the annual base payment amount, or the fixed contract amount of Fifteen Thousand Seven Hundred Sixty - Nine Dollars ($15,769). This amount will be divided into two payments equal to 50% of the annual fixed contract amount, unless CITY can show with reasonable certainty that the annual base payment amount will be less than originally estimated for the fiscal year. The final payment will represent 50% of the fixed contract amount or the unpaid remainder of 0.68% of the base payment amount, whichever is less. If CITY's Chief Financial Officer determines that hotel tax receipts by the CITY are not meeting the anticipated budget projection, CITY may reduce CORPORATION's current budget at any time during the contract period. Each payment is subject to refund of any unused or improperly expended funds from the prior contract period, and CITY's timely receipt of the required quarterly reports. 1.3 Dates of Payments. (a) The term "payments" shall mean payments by CITY to CORPORATION of those amounts specified in ¶1.2, above, as determined by the hotel tax revenue collected. (b) Each payment shall be paid upon receipt of the required reports and after the 25th of January 2017 and after the 25th of April 2017. If any quarterly financial report is not received within thirty (30) days of the end of the applicable contract quarter, the recipient may be held in breach of this Agreement. CITY may withhold payment(s) until the appropriate reports are received and approved, which approval shall not be unreasonably withheld. 1.4 Other limitations regarding consideration. (a) The funding of this project in no way commits CITY to future funding of this program beyond the current contract period. Any future funding is solely the responsibility of CORPORATION. Texas Filmmakers HOT Funds, PY2017 - Page 2 (b) It is expressly understood that this contract in no way obligates the General Fund or any other monies or credits of CITY. (c) CITY may withhold further allocations if CITY determines that CORPORATION's expenditures deviate materially from their approved budget. II. USE OF HOTEL TAX REVENUE 2.1 Use of Funds. For and in consideration of the payment by CITY to CORPORATION of the agreed payments of hotel tax funds specified above, CORPORATION agrees to use such hotel tax funds only for advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; as authorized by TEX. TAX CODE §351.101(a). Funds for any calendar year which are unused by midnight December 31St of that year shall be refunded to CITY within sixty (60) days. Advertising materials purchased with the hotel occupancy tax funds must be targeted to reach audience outside the Denton city limits. These materials include, but are not limited to, signs, posters, postcards, newsletters and print advertising. 2.2 Administrative Costs. The hotel tax funds received from the CITY by the CORPORATION may be spent for day-to-day operations, office supplies, salaries, travel expenses, and other administrative costs allowed by TEX. TAX CODE §351.101(e), but only if specified in CORPORATION's budget (Exhibit "A") and each are directly attributable to work on programs which promote tourism and the hotel and convention industry, and if each promotes at least one of the six statutory purposes enumerated within TEX. TAX CODE §351.101(a). 2.3 Specific Restrictions on Use of Funds. (a) That portion of total administrative costs of the CORPORATION for which hotel tax funds may be used shall not exceed that portion of the CORPORATION's administrative costs actually incurred in conducting the activities specified in ¶2.1 above. (b) Hotel tax funds may not be spent for travel for a person to attend an event or conduct an activity the primary purpose of which is not directly related to the promotion of local tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. III. RECORDKEEPING AND REPORTING REQUIREMENTS 3.1 Budget. (a) CORPORATION shall adhere to the budget (Exhibit "A") as approved by the City Council for each calendar year, for all operations of CORPORATION in which the hotel tax funds shall be used by CORPORATION. In other words, CITY should be able to audit specifically the purpose of each individual expenditure of hotel tax funds from the separate account relating to hotel tax. CITY shall not pay to CORPORATION any hotel tax revenues as set forth in Section I of this contract during any program year of this Agreement unless a budget for such respective program year has been approved in writing by the Denton City Council, authorizing the expenditure of funds. Texas Filmmakers HOT Funds, PY2017 - Page 3 (b) CORPORATION acknowledges that approval of the budget (Exhibit "A") by the Denton City Council creates a fiduciary duty in CORPORATION with respect to the hotel tax funds paid by CITY to CORPORATION under this Agreement. CORPORATION shall expend hotel tax funds only in the manner and for the purposes specified in this Agreement, TEX. TAX CODE §3 5 LI 01 (a) and in the budget as approved by CITY. (c) Upon the application or consent of CORPORATION, the City Manager or his designate may authorize minor amendments to the approved budget as necessary to carry out the intent of this Agreement, in a manner consistent with efficient use of public funds, and in accordance with State law. Such minor amendments may not increase the overall funding set forth in ¶1.2(b), extend the term, or otherwise alter the performance obligations of CORPORATION, without approval of the City Council by ordinance. 3.2 Separate Accounts. CORPORATION shall maintain any hotel tax funds paid to CORPORATION by CITY in a separate account or with segregated fund accounting, such that any reasonable person can ascertain the revenue source of any given expenditure. 3.3 Financial Records. CORPORATION shall maintain complete and accurate financial records of each expenditure of the hotel tax funds made by CORPORATION. These funds are required to be classified as restricted funds for audited financial purposes, and may not be used for contracted services, including, but not limited to, auditing fees or attorney fees. Upon reasonable advance written request of the Denton City Council, the City Manager or designate, or any other person, CORPORATION shall make such financial records available for inspection and review by the party making the request. CORPORATION understands and accepts that all such financial records, and any other records relating to this Agreement shall be subject to the Texas Public Information Act, TEX. Gov'T CODE, ch. 552, as hereafter amended. 3.4 Quarterly Reports. After initial receipt of hotel tax funds, and within thirty (30) days after the end of every quarter thereafter, until all funds have been expended and reported to CITY, CORPORATION shall furnish to CITY: (1) a completed financial report, (2) a list of the expenditures or copies of the invoices or receipts made with regard to hotel tax funds pursuant to TEX. TAX CODE §351.101(c), and (3) a copy of all financial records (e.g., copies of front and back cleared checks or bank statements, and other relevant documentation). Both the financial and expenditure reports will be in a form either determined or approved by the City Manager or designate. CORPORATION shall respond promptly to any request from the City Manager of CITY, or designate, for additional information relating to the activities performed under this Agreement. 3.5 Notice of Meetings. CORPORATION shall give the City Manager of CITY, or his designate, reasonable advance written notice of the time and place of all meetings of CORPORATION's Board of Directors, as well as any other meeting of any constituency of CORPORATION, at which this Agreement or any matter subject to this Agreement shall be considered. Texas Filmmakers HOT Funds, PY2017 - Page 4 IV. TERM AND TERMINATION 4.1 Term. The term of this Agreement shall commence on January 1, 2017, and terminate at midnight on January 31, 2018. However, the program period shall commence on January 1, 2017 and terminate at midnight on December 31, 2017. Only those expenditures authorized by Chapter 351 of the Texas Tax Code and the program guidelines, which are actually incurred during the program period, for events and activities taking place within the program period, are eligible for funding under this agreement, and any ineligible expenditures or unspent funds shall be forfeited to CITY upon termination of the Agreement. 4.2 Termination Without Cause. (a) This Agreement may be terminated by either party, with or without cause, by giving the other party sixty (60) days advance written notice. (b) In the event this contract is terminated by either party pursuant to ¶4.2(a), CITY agrees to reimburse CORPORATION for any contractual obligations of CORPORATION undertaken by CORPORATION in satisfactory performance of those activities specified in ¶¶2.1 and 2.2 above, and that were approved by the Council through the budget, as noted in ¶3.1. This reimbursement is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. Notwithstanding any provision hereof to the contrary, the obligation of CITY to reimburse CORPORATION, or to assume the performance of any contractual obligations of CORPORATION, for or under any contract entered into by CORPORATION as contemplated herein, shall not exceed 66 2/3% of the current quarterly payment. (c) Further, upon termination pursuant to ¶4.2(a), CORPORATION will provide CITY: 1) within ten (10) business days from the termination notification, a short-term budget of probable expenditures for the remaining sixty (60) day period between termination notification and contract termination. This budget will be presented to Council for approval within ten (10) business days after receipt by CITY. If formal approval is not given within ten (10) business days, and the budget does not contain any expenditures that would be prohibited by the Texas Tax Code, and is within the current contractual period approved budget; the budget will be considered approved; 2) within thirty (30) days, a full accounting of all expenditures not previously audited by CITY; 3) within five (5) business days of a request from CITY, a listing of expenditures that have occurred since the last required reporting period; 4) a final accounting of all expenditures and tax funds on the day of termination. CORPORATION will be obligated to return any unused funds, or funds determined to be used improperly. Any use of remaining funds by CORPORATION after notification of termination is conditioned upon such contractual obligations having been incurred and entered into in the good faith performance of those services contemplated in ¶¶2.1 and 2.2 above, and further conditioned upon such contractual obligations having a term not exceeding the full term of this Agreement. 4.3 Automatic Termination. This Agreement shall automatically terminate upon the occurrence of any of the following events: (a) The termination of the legal existence of CORPORATION; Texas Filmmakers HOT Funds, PY2017 - Page 5 (b) The insolvency of CORPORATION, the filing of a petition in bankruptcy, either voluntarily or involuntarily, or an assignment by CORPORATION for the benefit of creditors; (c) The continuation of a breach of any of the terms or conditions of this Agreement by either CITY or CORPORATION for more than thirty (30) days after written notice of such breach is given to the breaching party by the other party; or (d) The failure of CORPORATION to submit a financial quarterly report which complies with the reporting procedures required herein and generally accepted accounting principles prior to the beginning of the next contract term, or quarterly as required by ¶13 hereof. 4.4 Right to Immediate Termination Upon Litigation. Notwithstanding any other provision of this Agreement, to mitigate damages and to preserve evidence and issues for judicial determination, either party shall have the right to terminate this Agreement upon immediate notice to the other party in the event that any person has instituted litigation concerning the activities of the non -terminating party, and the terminating party reasonably believes that such activities are required or prohibited under this Agreement. 4.5 In the event that this Agreement is terminated pursuant to ¶¶4.3 or 4.4, CORPORATION agrees to refund any and all unused funds, or funds determined by CITY to have been used improperly, within thirty (30) days after termination of this Agreement. V. GENERAL PROVISIONS 5.1 Subcontract for Performance of Services. Nothing in this Agreement shall prohibit, nor be construed to prohibit, the agreement by CORPORATION with another private entity, person, or organization for the performance of those services described in ¶2.1 above. In the event that CORPORATION enters into any arrangement, contractual or otherwise, with such other entity, person or organization, CORPORATION shall cause such other entity, person, or organization to adhere to, conform to, and be subject to all provisions, terms, and conditions of this Agreement and to TEX. TAX CODE ch. 351, including reporting requirements, separate funds maintenance, and limitations and prohibitions pertaining to expenditure of the agreed payments and hotel tax funds. 5.2 Independent Contractor. CORPORATION shall operate as an independent contractor as to all services to be performed under this Agreement and not as an officer, agent, servant, or employee of CITY. CORPORATION shall have exclusive control of its operations and performance of services hereunder, and such persons, entities, or organizations performing the same, and CORPORATION shall be solely responsible for the acts and omissions of its directors, officers, employees, agents, and subcontractors. CORPORATION shall not be considered a partner or joint venturer with CITY, nor shall CORPORATION be considered, nor in any manner hold itself out as, an agent or official representative of CITY. 5.3 Indemnification. CORPORATION AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR INJURIES, DAMAGE, LOSS, OR LIABILITY OF WHATEVER KIND OR CHARACTER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE BY CORPORATION OF THOSE Texas Filmmakers HOT Funds, PY2017 - Page 6 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 CORPORATION, ITS OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, LICENSEES AND INVITEES. 5.4 Assignment. CORPORATION shall not assign this Agreement without first obtaining the written consent of CITY. 5.5 Notice. Any notice required to be given under this Agreement or any statute, ordinance, or regulation, shall be effective when given in writing and deposited in the United States mail, certified mail, return receipt requested, or by hand -delivery, addressed to the respective parties as follows: CITY CORPORATION City Manager Joshua Butler CITY OF DENTON TEXAS FILMMAKERS' CORPORATION 215 E. McKinney 5012 Pebble Beach Trail Denton, TX 76201 Denton, Texas 76208 5.6 Inurement. This Agreement and each provision hereof, and each and every right, duty, obligation, and liability set forth herein shall be binding upon and inure to the benefit and obligation of CITY and CORPORATION and their respective successors and assigns. 5.7 Application of Laws. All terms, conditions, and provisions of this Agreement are subject to all applicable federal laws, state laws, the Charter of CITY of Denton, all ordinances passed pursuant thereto, and all judicial determinations relative thereto. 5.8 Exclusive Agreement. This Agreement contains the entire understanding and constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, express or implied, between or among the parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein. The terms and conditions of this Agreement shall prevail, notwithstanding any variance in this Agreement from the terms and conditions of any other document relating to this transaction or these transactions. 5.9 Duplicate Originals. This Agreement is executed in duplicate originals. 5.10 Headings. The headings and subheadings of the various sections and paragraphs of this Agreement are inserted merely for the purpose of convenience and do not express or imply any limitation, definition, or extension of the specific terms of the section and paragraph so designated. 5.11 Severability. If any section, subsection, paragraph, sentence, clause, phrase or word in this Agreement, or application thereof to any person or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Agreement, and the parties hereby declare they would have enacted such remaining portions despite any such invalidity. Texas Filmmakers HOT Funds, PY2017 - Page 7 5.12 Insurance. CORPORATION shall provide insurance as follows: 1. $500,000 Commercial General Liability, or $1,000,000 Event Insurance, covering all events taking place on City -owned property, 2. Statutory Workers' Compensation and Employers' Liability ($100,000/$500,0001$100,000), and 3. $250,000 Liquor/Dram Shop Liability for any event occurring on City -owned property where alcohol will be provided or served. CITY must be named as an additional insured on all policies (except Workers' Compensation), and proof of coverage shall be submitted prior to any payment by the CITY. EXECUTED this ATTEST: BY: JENNIFER WALTERS, CITY SECRETARY ATTEST: By: Secretary day of 2016. THE CITY OF DENTON, TEXAS By: HOWARD MARTIN, CITY MANAGER APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNP!( TEXAS IN APPROVED AS TO LEGAL FORM: Texas Filmmakers HOT Funds, PY2017 - Page 8 Exhibit A Texas Filmmakers Thin Line Film Festival Program Year 2017 Budget Advertising Digital $ 5,000 Billboard 5,769 Regional Publications 5,000 Total Budget $ 15,769 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1486, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Police Department CM/ ACM: John Cabrales, Jr. Date: December 6, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, authorizing an agreement between the City of Denton, Texas and the Children's Advocacy Center for Denton County, Incorporated for providing aid to the City of Denton Police Department; in the investigation of child abuse cases; providing client and clinical services to victims of child abuse and non -offending family members; providing for the expenditure of funds in the amount of $102,862 therefor; and providing for an effective date. BACKGROUND investigation and prosecution of child abuse cases in Denton County. CACDC uses a team approach to consolidate law enforcement, Child Protective Services, prosecutors, therapists and volunteers in one location which helps to minimize the trauma experienced by victims of child abuse. CACDC also provides free counseling services to abused children and their family members. This collaborative approach has become the gold standard for investigating child abuse. The CACDC does not bill law enforcement for its services, but rather makes an annual request that participating municipalities consider allocating their "fair share" of funding based on the percentage of CACDC services received. The fair share is calculated by multiplying the police department's percent of services received from CACDC by the expenses remaining after subtracting federal and state funding, and special event/fundraising expenses from total agency expenses for the previous fiscal year. RECOMMENDATION Staff recommends that Council approve the ordinance as written. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On September 20, 2016, City Council formally approved an allocation of $102,862 as part of the 2016-17 budget process. FISCAL INFORMATION Subject to this Agreement the funds were allocated as part of the Fiscal Year 2016-17 Budget process. The funds will continue to be administered by the Denton Police Department. STRATEGIC PLAN RELATIONSHIP City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1486, Version: 1 The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Safe, Liveable & Family -Friendly Community Related Goal: 4.5 Provide support to citizens in need through social service agencies and programs EXHIBITS 2016-17 CACDC Ordinance and Contract Respectfully submitted: Lee Howell Chief of Police Prepared by: Lenn Carter Deputy Chief of Operations City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, S:\Legal\Our Documents\Ordinances\16\Childrens advocacy center 16-17.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND THE CHILDREN'S ADVOCACY CENTER FOR DENTON COUNTY, INCORPORATED FOR PROVIDING AID TO THE CITY OF DENTON POLICE DEPARTMENT IN THE INVESTIGATION OF CHILD ABUSE CASES; PROVIDING CLIENT AND CLINICAL SERVICES TO VICTIMS OF CHILD ABUSE AND NON -OFFENDING FAMILY MEMBERS; PROVIDING FOR THE EXPENDITURE OF FUNDS IN THE AMOUNT OF $102,862.00 THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Children's Advocacy Center for Denton County, Incorporated, a Texas non-profit corporation, (the "Organization") aids the City of Denton Police Department of investigation of child abuse cases and provides client and clinical services to victims of child abuse and non -offending families members from the city of Denton, Texas (the "Program"); and WHEREAS, the Organization and the City of Denton desire to enter into an agreement to provide for the continuance of the Program which agreement is substantially in the same form as the agreement attached hereto and made a part hereof by reference (the "Public Service Agreement"); and WHEREAS, the Program is a part of the City's community development program as authorized by Chapter 373 of the Local Government Code and it helps to eliminate conditions detrimental to the public health and safety by providing opportunities and services to low to moderate persons in Denton that would otherwise not be available; and WHEREAS, the Program and the Public Service Agreement are necessary to preserve and protect the public health and safety of the City's residents by helping to insure that assistance is provided to aid in the investigation of child abuse cases and that victims of child abuse and non offending families members have adequate client and clinical services; and WHEREAS, City Council finds that if the Program and the Public Service Agreement are not available, families would be at risk of further abuse and trauma, thereby creating a substantial health and safety risk for citizens of Denton; and WHEREAS, the Program is supervised and administered by professional personnel which maintain licenses as counselors or social workers; and WHEREAS, City Council finds that the Public Service Agreement and the expenditures provided for in the Agreement are exempt from competitive bidding as a procurement necessary to preserve or protect the public health or safety of the City's residents under Section 252.022(a)(2) of the Local Government Code and as a procurement for professional services under Section 252.022(a)(4) of the Local Government Code; and WHEREAS, the City Council of the City of Denton hereby finds that the Program and the Public Service Agreement serve important municipal and public purposes and are 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 Public Service Agreement, attached hereto and incorporated herein, and to carry out the duties and responsibilities of the City under the Public Service Agreement, including the expenditure of funds not to exceed $102,862.00, as provided in the Public Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Page 2 2016-2017'SERVICE AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND CHILDREN'S ADVOCACY CENTER FOR DENTON COUNTY, INCORPORATED This Agreement is hereby entered into by and between the CITY of Denton, Texas, a Texas municipal corporation, acting by and through its City Manager, hereinafter referred to as "CITY", and Children's Advocacy Center for Denton County, Incorporated, 1854 Cain Drive, Lewisville, TX 75077, hereinafter referred to as "ORGANIZATION"; WHEREAS, the Denton Police Department has reviewed the proposal for services and has determined that ORGANIZATION performs an important service for the residents of Denton without regard to race, religion, color, age or national origin, and recommends the purchase of services; and 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, CITY has designated the Denton Police Department with assistance from the Community Development Division as the department responsible for the administration of this Agreement and all matters pertaining thereto; and NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the perforinance and accomplishment of the conditions hereinafter described. 1. TERM This Agreement shall commence on or as of October 1, 2016, and shall terminate on September 30, 2017, unless sooner terminated in accordance with Section 25 "Termination". 2. RESPONSIBILITIES ORGANIZATION hereby accepts the responsibility for the performance of all services and activities described in the Scope of Services attached hereto as Exhibit A, and incorporated herein by reference, in a satisfactory and efficient manner as determined by CITY, in accordance with the terms herein. CITY will consider ORGANIZATION's executive officer to be ORGANIZATION's representative responsible for the management of all contractual matters pertaining hereto, unless written notification to the contrary is received from ORGANIZATION, and approved by CITY. The Denton Chief of Police or designee will be CITY's representative responsible for the administration of this Agreement. The ORGANIZATION certified that the beneficiaries of the activities to be provided MUST reside in the City of Denton. Eligibility documentation must be included in each client's file. 3. OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from CITY, ORGANIZATION agrees to the following terms and conditions: A. One hundred two thousand eight hundred sixty-two dollars ($102,862.00) may be paid to ORGANIZATION by CITY, and the only expenditures reimbursed from these funds, shall be those in accordance with the project budget, attached hereto as Exhibit B and incorporated herein by reference, for those expenses listed in the scope of services as provided herein. ORGANIZATION shall not utilize these funds for any other purpose. B. It will establish, operate, and maintain an account systemfor this program that will allow for a tracing of funds and a review of the financial status of the program. C. It will permit authorized officials of CITY to review its books at any time. D. It will reduce to writing all of its rules, regulations, and policies and file a copy with CITY's Police Department along with any amendments, additions, or revisions whenever adopted. E. It will not enter into any contracts that would encumber CITY funds for a period that would extend beyond the term of this Agreement. F. It will promptly pay all bills when submitted unless there is a discrepancy in a bill; any errors or discrepancies in bills shall be promptly reported to the Denton Police Department or their appointed representative in Community Development. Page 1 of 13 G. It will appoint a representative who will be available to meet with CITY officials when requested. H. It will indemnify and hold harmless CITY from any and all claims and suits arising out of the activities of ORGANIZATION, its employees, and/or contractors. I. It will submit to CITY copies of year-end audited financial statements. 4. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS A. ORGANIZATION shall comply with all applicable federal laws, laws of the State of Texas and ordinances of the City of Denton. 5. REPRESENTATIONS A. ORGANIZATION assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Agreement. B. The person or persons signing and executing this Agreement on behalf of ORGANIZATION, do hereby warrant and guarantee that he, she, or they have been fully authorized by ORGANIZATION to execute this Agreement on behalf of ORGANIZATION and to validly and legally bind ORGANIZATION to all terms, performances and provisions herein set forth. C. CITY shall have the right, at option, to either temporarily suspend or permanently terminate this Agreement if there is a dispute as to the legal authority of either ORGANIZATION or the person signing the Agreement to enter into this Agreement. ORGANIZATION is liable to CITY for any money it has received from CITY for performance of the provisions of this Agreement if CITY has suspended or terminated this Agreement for the reasons enumerated in this Section. D. ORGANIZATION agrees that the funds and resources provided ORGANIZATION under the terms of this Agreement will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, ORGANIZATION had this Agreement not been executed. 6. PERFORMANCE BY ORGANIZATION ORGANIZATION will provide, oversee, administer, and carry out all of the activities and services set out in the SCOPE OF SERVICES, attached hereto and incorporated herein for all purposes as Exhibit A, utilizing the funds described in Exhibit B, attached hereto and incorporated herein for all purposes and deemed by both parties to be necessary and sufficient payment for full and satisfactory performance of the program, as determined solely by CITY and in accordance with all other terms, provisions and requirements of this Agreement. No modifications or alterations maybe made in the Scope of Services without the prior written approval of the City's Chief of Police. 7. PAYMENTS A. Payments to ORGANIZATION. CITY shall pay to ORGANIZATION a maximum amount of money not to exceed one hundred two thousand'' eight hundred sixty-two dollars ($102,862.00) for services rendered under this Agreement. CITY will pay these funds on a reimbursement basis to ORGANIZATION within 15 days after CITY has received supporting documentation ORGANIZATION's failure to request reimbursement on a timely basis may jeopardize present or future funding. B. Excess Payment. ORGANIZATION shall refund to CITY within ten 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 ORGANIZATION;` 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. C. ORGANIZATION's reimbursement request for any one month period will not exceed one-tenth (1/10) of any budgeted line items for costs as specified in Exhibit B. D. Deobligation of Funds/Reversion of Assets. In the event that actual expenditures deviate from ORGANIZATION's provision of a corresponding level of performance, as specified in Exhibit A, CITY hereby reserves the right to reappropriate or recapture any such under expended funds. If CITY finds that Page 2 of 13 ORGANIZATION is unwilling and/or unable to comply with any of the terms of this Contract, CITY may require a refund of any and all money expended pursuant to this Contract by ORGANIZATION, as well as any remaining unexpended funds which shall be refunded to CITY within ten working days of a written notice to ORGANIZATION to revert these financial assets. The reversion of these financial assets shall be in addition to any other remedy available to CITY either at law or in equity for breach of this Contract. E. Contract Close Out. ORGANIZATION shall submit the contract close out package to CITY, together with a final expenditure report, for the time periodcovered by the last invoice requesting reimbursement of funds under this Agreement, within 15 working days following the close of the contract period. ORGANIZATION shall utilize the form agreed upon by CITY and ORGANIZATION. 8. WARRANTIES ORGANIZATION represents and warrants that: A. All information, reports and data heretofore or hereafter requested by CITY and furnished to CITY, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to CITY. B. Any supporting financial statements heretofore requested by CITY and furnished to CITY, are complete, accurate and fairly reflect the financial condition of ORGANIZATION on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of ORGANIZATION. C. No litigation or legal proceedings are presently pending or threatened against ORGANIZATION. D. None of the provisions herein contravene or are in conflict with the authority under which ORGANIZATION is doing business or with the provisions of any existing indenture or agreement of ORGANIZATION. E. ORGANIZATION 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 ORGANIZATION is subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by ORGANIZATION to CITY. G. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. 9. COVENANTS A. During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, ORGANIZATION shall not, without the prior written consent of the Community Development Administrator or her authorized representative: 1. Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of ORGANIZATION now owned or hereafter acquired by it, or permit any pre-existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of ORGANIZATION which are allocated to the performance of this Agreement and with respect to which CITY has ownership hereunder. 2. Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. 3. Sell, convey, or lease' all or substantial part of its assets. 4. Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. 5. Sell, donate, loan or transfer any equipment or item of personal property purchased with funds paid to ORGANIZATION by CITY, unless CITY authorizes such transfer. Page 3 of 13 _10. ALLOWABLE COSTS A. Costs shall be considered allowable only if incurred directly and specifically in the performance of and in compliance with this Agreement and in conformance with the standards and provisions of Exhibits A and B. B. Approval of ORGANIZATION's budget, Exhibit B, does not constitute prior written approval, even though certain items may appear herein. CITY's prior written authorization is required in order for the following to be considered allowable costs: 1. Encumbrances or expenditures during any one month period which exceeds one-tenth 1/10 of the total budget as specified in Exhibit B. 2. CITY shall not be obligated to any third parties, including any subcontractors of ORGANIZATION, and CITY funds shall not be used to pay for any contract service extending beyond the expiration of this Agreement., 3. Out of town travel. 4. Any alterations or relocation of the facilities on and in which the activities specified in Exhibit A are conducted. 5. Any alterations, deletions or additions to the Personnel Schedule incorporated in Exhibit B. 6. Costs or fees for temporary employees or services. 7. Any fees or payments for consultant services. 8. Fees for attending out of town meetings, seminars or conferences. Written requests for prior approval are ORGANIZATION's responsibility and shall be made within sufficient time to permit a thorough review by CITY. ORGANIZATION must obtain written approval by CITY prior to the commencement of procedures to solicit or purchase services, 'equipment, or real or personal property. Any procurement or purchase which may be approved under the terms of this Agreement must be conducted in its entirety in accordance with the provisions of this Agreement.. C. Expenditures will not be reimbursed to ORGANIZATION for the purchase of real property or equipment. These are not allowable costs under this agreement. 11. MAINTENANCE OF RECORDS A. ORGANIZATION agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Agreement, in compliance with the provisions of Exhibit B, attached hereto, and with any other applicable Federal and State regulations establishing standards for financial management. ORGANIZATION's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve ORGANIZATION of fiscal accountability and liability under any other provision of this Agreement or any applicable law. ORGANIZATION shall include the substance of this provision in all subcontracts. B. ORGANIZATION agrees to retain all books, records, documents, reports, and written accounting procedures pertaining to the operation of programs and expenditures of funds under this Agreement for five years. C. Nothing in the above subsections shall be construed to relieve ORGANIZATION of responsibility for retaining accurate and current records, which clearly reflect the level and benefit of services,` provided under this Agreement. D. At any reasonable time and as often as CITY may deem necessary, the ORGANIZATION shall make available to CITY, or any of their authorized representatives, all of its records and shall permit CITY, or any of their authorized representatives to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data requested by said representatives. 12. REPORTS AND INFORMATION At such times and in such form as CITY may require, organization shall furnish such statements, records, data and information as CITY may request and deem pertinent to matters covered by this Agreement. ORGANIZATION shall submit quarterly beneficiary and financial reports to CITY no less than once each three months. The beneficiary report shall detail client information, including race, income, female head' of household Page 4 of 13 and other statistics required by CITY. The financial report shall include information and data relative to all programmatic and financial reporting as of the beginning date specified in Section 1 of this Agreement. Unless the CITY has granted a written exemption, ORGANIZATION shall submit an audit conducted by independent examiners with ten days after receipt of such. 13. MONITORING & EVALUATION ORGANIZATION agrees to participate in an implementation and maintenance system whereby the services can be continuously monitored. ORGANIZATION agrees that CITY may carry out monitoring and evaluation activities to ensure adherence by ORGANZIATION to the Scope of Services, and Program Goals and Objectives, which are attached hereto as Exhibit A, as well as other provisions of this Agreement. ORGANZIATION agrees to cooperate fully with CITY and provide data determined by CITY to be necessary for CITY to effectively fulfill its monitoring and evaluation responsibilities. ORGANIZATION agrees to cooperate in such a way so as not to obstruct or delay CITY in such monitoring and to designate one of its staff to coordinate the monitoring process as requested by CITY staff. ORGANIZATION agrees to make available its financial records for review by CITY at CITY's discretion. In addition, ORGANIZATION agrees to provide CITY the following data and reports, or copies thereof: A. All external or internal audits. ORGANIZATION shall submit copy of the annual independent audit to CITY within ten days of receipt. B. All external or internal evaluation reports. C. Quarterly performance/beneficiary reports to be submitted in January, April, July and September, to include such information as requested by the CITYincluding but not limited to: number of persons or households assisted, race, gender, disability status and household income. Beneficiary reportsshallbe due to CITY within 15 working days after the completion of each quarter. D. ORGANIZATION agrees to submit no less than once each three months financial statements. Each statement shall include current and year-to-date period' accounting of all revenues, expenditures, outstanding obligations and beginning and ending balances. Financial reports shall be due to CITY within 15 working days after the completion of each quarter. E. An explanation of any major changes in program services. F. To comply with 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. ORGANIZATION's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. ORGANIZATION 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 the period of time and under the conditions specified by the CITY. G. Nothing in the above subsections shall be construed to relieve ORGANIZATION of responsibility for retaining accurate and current records, which clearly reflect the level and benefit of services, provided under this Agreement, 14. DIRECTORS' MEETINGS During the term of this Agreement, ORGANIZATION shall deliver to CITY copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof.' Such notice shall be delivered to CITY in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. ORGANIZATION understands and agrees that CITY's representatives shall be afforded access to all meetings of its Board of Directors. Minutes of all meetings of ORGANIZATION's governing body shall be available to CITY within ten days after Board approval. 15. INSURANCE A. ORGANIZATION shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. The premises on and in which the activities described in Exhibit A are conducted, and the employees conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" Page 5 of 13 coverage with CITY named as an additional insured. Upon request of ORGANIZATION, CITY may, at its sole discretion, approve alternate insurance coverage arrangements. C. ORGANIZATION will comply with applicable workers' compensation statues and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. D. ORGANIZATION will maintain adequate and continuous liability insurance on all vehicles owned, leased or operated by ORGANIZATION. All employees of ORGANIZATION who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in ORGANIZATION's files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of ORGANIZATION. F. The policy or policies of insurance shall contain a clause which requires that City and ORGANIZATION be notified in writing of any cancellation of change in the policy at least 30 days prior to such change or cancellation_ 16. CIVIL RIGHTS / EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. ORGANIZATION shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. The ORGANIZATION shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, national origin,gender, age or disability. The ORGANIZATION will take affirmative action to insure that all employment practices are free from such discrimination. Such employment practices include but are not limited to the following: hiring, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. B. ORGANIZATION shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. The ORGANIZATION agrees to comply with Title VI of the Civil Rights Act of 1964 as amended, Title VIII of the Civil Rights Act of 1968 as amended, Section 104(b) and Section 109 of Title 1 of the Housingand Community Development Act of 1974 as amended, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063 and Executive Order 11246 as amended by Executive Orders 11375 and 12086. C. ORGANIZATION will furnish all information and reports requested by the 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. D. In the event of ORGANIZATION's non-compliance with the non-discrimination requirements,' CITY may cancel or terminate the Agreement in whole or in part, and ORGANIZATION may be barred from further contracts with CITY. 17. PERSONNEL POLICIES Personnel policies shall be established by ORGANIZATION and shall be available for examination. Such personnel policies shall: A. Be no more liberal than CITY'S personnel policies, procedures, and practices, including policies with respect to employment, salary and wage rates, working hours and holidays, fringe benefits, vacation and sick leave privileges, and travel; and B. Be in writing and shall be approved by the governing body of ORGANIZATION and by CITY. 18. CONFLICT OF INTEREST A. ORGANIZATION 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. ORGANIZATION 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. ORGANIZATION 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 Page 6 of 13 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 or her personal interest or the interest in any corporation, partnership, or association in which he or she has a direct or indirect interest. 19. NEPOTISM ORGANIZATION shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by ORGANIZATION, or is a memberof ORGANIZATION's governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, stepparent, stepchild, half-brother and half-sister. 20. PUBLICITY A. Where such action is appropriate, ORGANIZATION shall publicize the activities conducted by ORGANIZATION under this Agreement. In any news release, sign, brochure, or other advertising medium, disseminating information prepared or distributed by or for ORGANIZATION, the advertising medium shall state that City of Denton funding has made the services possible. 21. 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. ORGANIZATION may not make changes to the budget set forth in Exhibit B without prior written approval of the Police Chief. ORGANIZATION shall request, in writing, the budget revision in a form prescribed by CITY, and such request for revision shall not increase the total monetary obligation of CITY under this Agreement. In addition, budget revisions cannot significantly change the nature, intent, or scope of the program funded under this Agreement. C. ORGANIZATION will submit revised budget and program information, whenever the level of funding for ORGANIZATION or the program(s) described herein is altered according to the total levels contained in any portion of Exhibit B. D. 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. E. CITY may, from time to time during the term of the Agreement, request changes in Exhibit A which may include an increase or decrease in the amount of ORGANIZATION's compensation. Such changes shall be incorporated in a written amendment hereto, as provided in Subsection A of this Section. F. Any alterations, deletions, or additions to the Contract Budget Detail incorporated in Exhibit B shall require the prior written approval of CITY. G. ORGANIZATION agrees to notify CITY of any proposed change in physical location for work performed under this Agreement at least 30 calendar days in advance of the change. H. ORGANIZATION shall notify CITY of any changes in personnel or governing board composition. I. It is expressly understood that neither the performance of Exhibit A for any program contracted hereunder nor the transfer of funds between or among said programs will be permitted. 22. SUSPENSION OF FUNDING Upon determination by CITY of ORGANIZATION's failure to timely and properly perform each of the requirements, time conditions and duties provided herein, CITY, without limiting any rights it may otherwise have, may, at its discretion, and upon ten working days written notice to ORGANIZATION, withhold further payments to ORGANIZATION. Such notice may be given by mail to the Executive Officer and the Board of Directors of ORGANIZATION. The notice shall set forth the default or failure alleged, and the action required for cure. Page 7 of 13 The period of such suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shall it exceed 30 calendar days. At the end of the suspension period, if CITY determines the default or deficiency has been satisfied, ORGANIZATION may be restored to full compliance status and paid all eligible funds withheld or impounded during the suspension period. If however, CITY determines that ORGANIZATION has not come into compliance, the provisions of Section 25 maybe effectuated. 23. TERMINATION A. CITY may terminate this Agreement for cause under any of the following reasons or for other reasons not specifically enumerated in this paragraph: 1. ORGANIZATION's failure to attain compliance during any prescribed period of suspension as provided in Section 24. 2. ORGANIZATION's failure to materially comply with any of the terms of this Agreement. 3. ORGANIZATION's violation of covenants, agreements or guarantees of this Agreement.' 4. Termination or reduction of funding by the City of Denton. 5. Finding by CITY that ORGANIZATION: a. is in such unsatisfactory financial condition as to endanger performance under this Agreement; b. has allocated inventory to this Agreement substantially exceeding reasonable requirements; C. is delinquent in payment of taxes, or of costs of performance of this Agreement in the ordinary course of business. 6. Appointment of a trustee, receiver or liquidator for all or substantial part of ORGANIZATION's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against ORGANIZATION. 7. ; ORGANIZATION's inability to conform to changes required by Federal, State and local laws or regulations as provided in Section 4, and Section 2, of this Agreement. 8. The commission of an act of bankruptcy. 9. ORGANIZATION's violation of any law or regulation to which ORGANIZATION is bound or shall be bound under the terms of the Agreement. CITY shall promptly notify ORGANIZATION in writing of the decision to terminate and the effective date of termination. Simultaneous notice of pending termination maybe made to other funding source specified in Exhibit B. B. CITY may terminate this Agreement for convenience at any time. If CITY terminates this Agreement for convenience, ORGANIZATION will be paid an amount not to exceed the total of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount which bears the same ratio to the total compensation as the 'services actually performed bears to the total services of ORGANIZATION covered by the Agreement, less payments previously made. C. ORGANIZATION may terminate this Agreement in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which ORGANIZATION depends for performance hereunder. ORGANIZATION may opt, within the limitations of this Agreement, to seek an alternative funding source, with the approval of CITY, provided the termination by the outside funding source was not occasioned by a breach of contract as defined herein or as defined in a contract between ORGANIZATION and the funding source in question. ORGANIZATION' may terminate this Agreement upon the dissolution of ORGANIZATION'S organization not occasioned by a breach of this Agreement. D. Upon receipt of notice to terminate, ORGANIZATION shall cancel, withdraw or otherwise terminate any outstanding orders or subcontracts, which relate to the performance of this Agreement. CITY shall not be liable to ORGANIZATION or ORGANIZATION's creditors for any expenses, encumbrances or obligations whatsoever incurred after the termination date listed on the notice to terminate referred to in this paragraph. E. Notwithstanding any exercise by CITY of its right of suspension or termination, ORGANIZATION shall not be relieved of liability to CITY for damages; sustained by CITY by virtue of any breach of the Agreement by Page 8 of 13 ORGANIZATION, and CITY may withhold any reimbursement to ORGANIZATION until such time as the exact amount of damages due to CITY from ORGANIZATION is agreed upon or otherwise determined. 24. NOTIFICATION OF ACTION BROUGHT In the event that any claim, demand, suit or other action is made or brought by any person(s), firm, corporation or other entity against ORGANIZATION, ORGANIZATION shall give written notice thereof to CITY within two working days after being notified of such claim, (demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by mail. 25. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with ORGANIZATION as an independent contractor and that as such, ORGANIZATION shall save and hold CITY, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any, claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of ORGANIZATION. B. ORGANIZATION agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees,or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willfulact or omission of CITY, its agents or employees. 26. NON -RELIGIOUS ACTIVITIES The ORGANIZATION will provide all services under this Agreement in a manner that is exclusively non- religious in nature and scope. There shall be no religious services, proselytizing, instruction or any other religious preference, influence or discrimination in connection with providing the services hereunder. 27. MISCELLANEOUS A. ORGANIZATION 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. All reports, documents, studies, charts, schedules, or other appended documentation to any proposal, content of basic' proposal, or contracts and any responses, inquiries, correspondence and related material submitted by ORGANIZATION shall become the property of CITY upon receipt. D. Debarment: ORGANIZATION certifies that they are not listed on the Excluded Parties List System (EPLS), which list the debarred, suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549 and 24 CFR Part 24. E. In no event shall any payment to ORGANIZATION 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 ORGANIZATION. 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. F. 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 antecedent to this Agreement, whether written or oral, shall have no force or effect whatsoever; nor shall an 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. Page 9 of 13 G. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing rules, codes, laws, ordinances or regulations, CITY as the party ultimately responsible, will have the final authority to render or to secure an interpretation. H. For purposes of this Agreement, 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, addressed to ORGANIZATION or CITY, as the case may be, at the following addresses: CITY ORGANIZATION City Manager Children's Advocacy Center for Denton County, Inc. City of Denton Attn: Executive Director 215 E. McKinney _ 1854 Cain Drive Denton, Texas 76201 Lewisville, TX 75077 I. 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 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 , 2016. CITY OF DENTON BY: HOWARD MARTIN, INTERIM CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA B GESS, CITY ATTORNEY BY: CHILDREN'S ADVOCACY CENTER FOR DENTON COUNTY, RPORATED BY: r EXECUTIVE DIRECTOR �. ATTEST: BY: BOARD SEC TARP ytia .L ssa Page 10 of 13 Exhibit A Scope of Services The Scope of Services under this Agreement shall be as follows: SECTION I — ACTIVITY ORGANIZATION shall provide services to minimize the trauma of child abuse to the children and non -offending family members by offering victim services that include client and clinical services. Client Services provide justice and support by coordinating the investigative process among the Denton Police Department and partner agencies and by; assisting families with crime victim services. The Clinical Services program provides specialized and comprehensive clinical services. Beneficiaries of the services to be provided hereunder must reside in the city of Denton and ORGANIZATION shall provide services to child victims and their non -offending family members. SECTION II — SERVICES In order to complete the agreed upon activity ORGANIZATION shall provide the followingservices to child abuse victims or children who have witness a violent crime and non-offendingfamily amily members: • Provide facility and staff to coordinate the investigative process among the Denton Police Department and partner agencies and to conduct: Client Services: 0 on-site forensic interview and assessments o multidisciplinary case reviews to insure coordination and progress of investigations by partner agencies o social service referrals and assistance with victim compensation o- social histories and support o liaison between the families and investigative agencies o referrals to community resources, and seasonal assistance programs Clinical Services: o individual, group, play and pet therapy o crisis counseling o consultation with the multidisciplinary team o court preparation services o psychological testing SECTION:III UNIT OF SERVICE A unit of service will be the tool by which the CITY and the ORGANIZATION can measure performance under this agreement. A unit of service shall be defined as client or clinical service for a child victim or non -offending family members including but not limited to the services as described in Section II — Services. SECTION IV - GOALS ORGANIZATION shall provide not less than 2,250 units of service to city of Denton residents during the contract year. The total number of units of service required constitutes the performance target for the ORGANIZATION under this Agreement. The ORGANIZATION will provide services to approximately 250 children ages zero to seventeen and non -offending family members during the term of this Agreement. ORGANIZATION shall provide the services listed in this Agreement within the monetary limits contained in Exhibit B, entitled `Budget", attached hereto and incorporated by reference herein. In no event shall compensation to the ORGANIZATION exceed the lesser of the ORGANIZATION'S costs attributable to the work performed as stated herein, or sum of one hundred two thousand eight hundred sixty-two dollars ($102,862.00). Page I 1 of 13 SECTION V — OUTCOMES Direct Service Outcome The services provided as the terms of this agreement will assist the ORGANIZATION in providing comprehensive services to child abuse victims, or children who have witness a violent crime, and non -offending family members. The expected benefits of the ORGANIZATION'S delivery of comprehensive services will provide a reduction in trauma and promotion of emotional healing through: • ORGANIZATION will serve at least 250 city of Denton clients and at least 70% of those referred for counseling will receive counseling services. • At least 20% of children served will continue in The Advocacy Center's clinical program. Community Outcome Children's Advocacy Center for Denton County assists the City of Denton in improving availability and accessibility of services promoting strong, supportive relationships for families, neighborhoods, and communities to promote a suitable living environment., as outlined in the 2010-2014 City of Denton Consolidated Plan. The Children's Advocacy Center for Denton County provides services necessary to (1) expand the current system of case coordination and centralize information among service providers and (2) continue allocation of scarce resources to meet urgent community needs. Children's Advocacy Center for Denton County benefits the citizens of the City of Denton and supports a coordinated effort to maximize community resources by; • Working in conjunction with the Denton Police Department, Child Protective Services, and appropriate service providers on the investigation and prosecution of cases. • Promoting collaboration between agencies through the use of their facilities for interviews, office space, case reviews, and other services. • Offering a variety of therapy sessions to assist victims and non -offending family members in the emotional healing process. Page 12 of 13 Allowable Expenditure Budget Amount Fee for Service $45.00 per 2,250 units of direct service $102,862.00 Total $102,862.00 Children's Advocacy Center for Denton County will be reimbursed monthly on a fee for service basis for services provided to residents of the city of Denton. Fees for particular services are described above. Page 13 of 13 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1490, Version: 1 DEPARTMENT: CM/ ACM: Date: Transportation John Cabrales, Jr. December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance of the City of Denton, Texas prohibiting parking on opposite sides of McCormick Street from Underwood Street to Margie Street; providing a repealer clause; providing a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance; providing that violations of this ordinance shall be governed by Chapter 18 of the Code of Ordinances of the City of Denton; and providing for an effective date. The Traffic Safety Commission recommends Option 1 (5-0). BACKGROUND Fire Station Number 3, located at 1204 McCormick Street, has expressed the need for a no parking restriction on both sides of McCormick Street. Due to the narrowness of the street and the regular on -street parking that occurs on both the east and west side of McCormick Street from Underwood Street to Margie Street, there is an inadequate amount of space for emergency vehicles to travel down McCormick Street. In order to improve response time efficiency and allow for the safe navigation of McCormick Street by emergency vehicles, it is recommended the affected area of McCormick Street be designated a no parking zone. (Exhibit 1, Location Map). McCormick Street is an asphalt street with concrete curb and gutter in certain areas of the street segment and no curb and gutter in other areas of the identified street segment. McCormick Street from Margie Street to Underwood Street has a width less than 24 feet from face of curb to face of curb with locations in the identified segment only 21 feet from face of curb to face of curb. Development on the east and west side of McCormick Street consists of leased and owner occupied single family homes. Because this section of McCormick Street is within a quarter mile of the University of North Texas, there is substantial student parking experienced (Exhibit 2, On -Street Parking Conditions - McCormick Street), with frequent City of Denton Code violations. Current City of Denton International Fire Code Amendments sets fire access road widths, Sec. D103.6.1 (Exhibit 3, International Fire Code) states, "Fire apparatus access roads 20 to 26 feet wide (6096 to 7925 mm) shall be posted on both sides as a fire lane." Additionally, Sec. 503.2.1 (Exhibit 4, City of Denton Code of Ordinance) of the International Fire Code states, "Fire apparatus access roads shall have an unobstructed width of not less than 20 feet (6096 mm)..." In order to establish the no park zone on McCormick, staff initiated the designation process. Correspondence letters (Exhibit 5, Letter Notice) were sent to 14 physical addresses and 13 owner billing addresses on October City of Denton Page 1 of 3 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1490, Version: 1 12, 2016 announcing the proposed restriction as well as the scheduled November 7, 2016 Traffic Safety Commission meeting. On October 24, 2016 door hangers (Exhibit 6, Door Hanger Notice) were distributed to each building on McCormick Street reminding the residents about the proposal and upcoming meeting for November 7, 2016. Two citizens attended the Traffic Safety Commission meeting and spoke in support and one citizen sent an email in opposition to the recommended parking restriction. The Traffic and Safety Commission approved the recommendation of the parting restriction on both sides of McCormick St. STAFF CONSIDERATIONS Due to the narrowness of the street and the ongoing violations of on -street parking relative to required distances from stop signs and drive ways, there are safety issues that warrant consideration of a no parking zone on McCormick Street between Margie Street and Underwood Street. This issue is compounded as there is a limited number of City staff available to enforce the violations impeding on the safety of residents and visitors. Additionally, partial blockage of driveways is a violation and inconvenience to the residents of the various properties. Because the average width of McCormick Street between Margie Street and Underwood Street is 23 feet, and the issues noted by Denton Fire Department concerning the safe navigation of this street segment, staff proposes restricting the east and west side of the McCormick Street between Margie Street and Underwood Street per the International Fire Code Sec. 503.2.1 as adopted by the City of Denton Code of Ordinances, Sec. 29-1. Allowing parking on one side would not meet the requirements set forth in the Fire Code that requires a minimum of 26 to allow parking on one side. OPTIONS 1. Approve the ordinance for a no parking restriction any time for the east and west side of McCormick Street from Underwood Street to Margie Street. 2. Deny approval of the ordinance for a no parking restriction any time for the east and west side of McCormick Street from Underwood Street to Margie Street. 3. Provide staff with additional direction to address on -street parking on McCormick Street from Underwood Street to Margie Street. RECOMMENDATION The Traffic Safety Commission recommends, 5-0, to consider Option 1. ESTIMATED SCHEDULE OF PROJECT If approved, the ordinance could be enforced 14 days after public notice was provided in the Denton Record Chronicle PRIOR ACTION /REVIEW (Council, Boards, Commissions) November 7, 2016 - The Traffic Safety Commission considered no parking restrictions on McCormick Street from Underwood to Margie Street and recommended approval of the City Council by a 5-0 vote. City of Denton Page 2 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, File #: ID 16-1490, Version: 1 FISCAL INFORMATION Approximately $350 for requisite signs and associated labor. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan built on five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainable and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Safe, Liveable & Family -Friendly Community Related Goal: 4.1 Enhance public safety in the community F UIRITC 1. Location Map 2. On -street parking conditions - McCormick Street 3. International Fire Code 4. City of Denton Code of Ordinance 5. Correspondence Letter 6. Door Hanger Notice 7. Traffic Safety Committee Minutes 8. Ordinance Respectfully submitted: Mark Nelson Transportation Director Prepared by: John Chapman CMO Intern City of Denton Page 3 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, m_ X w EXHIBIT 2 Looking south on McCormick Street towards Fire Station 3 Middle of McCormick facing south towards Fire Station 3 EXHIBIT 2 Looking north on McCormick Street F_1094• • a -,s _• -till I M4. ti s for the signs nee d to mark areas where parking is prohibited. SIGN TYPE "A" SIGN TYPE "C" SIGN TYPE "ID" r. ... .. NO NO NO PARKING PARKING PARKING FIRE LANE I FIRE LANE FIRE LANE 7tJ1 1- 12" — 12"r 12' - WHOM D103.6.1 Roads 20 to 26 feet in width. Fire apparatus access roads 20 to 26 feet wide (6096 to 7925 mm) shall be posted on both sides as afire lane. -.'-This section requires that parking be prohibited on both sides of narrower fire apparatus access roads. Twenty feet (6096 mm) is the appropriate width needed for two average -size fire trucks to pass one another. If that width is reduced by parking even on one side, it will be potentially difficult for a fire depart- ment to undertake emergency operations in that area. D103.6.2 Roads more than 26 feet in width. Fire apparatus access roads more than 26 feet wide (7925 mm) to 32 feet wide (9754 mm) shall be posted on one side of the road as afire lane. %*-Because this width is more than sufficient for maneu- vering at least two fire department vehicles by one an- other, parking would be allowed on one side. SECTION D1 04 COMMERCIAL AND INDUSTRIAL DEVELOPMENTS D104.1 Buildings exceeding three stories or 30 feet in height. Buildings or facilities exceeding 30 feet (9144 mm) or Three stories in height shall have at least two means of fire, appa- ratus access for each structure. -*eThis section addresses commercial and industrial buildings that, because of their height, have the poten- tial of creating a large challenge to a fire department. This section, along with Sections D105, D106 and D107, contains requirements for fire apparatus access roads for specific kinds of buildings or developments. Section 503 gives the fire code official the authority to require more access roads but does not specify when the additional roads are required. The need for addi- tional access roads will depend on so many factors EXHIBIT 3 that each situation must be judged individually. Because of the height of these buildings, various types of vehicles may be needed, and having two or more means of approaching the site may be necessary to manage and manipulate the vehicles. D104.2 Buildings exceeding 62,000 square feet in area. Buildings or facilities having a gross building area of more, than 62,000 square feet (5760 M2) shall be provided with two separate and approved fire apparatus access roads. Exception: Projects having a gross building avea of ' up to 124,000 square feet (11 520 ml) that have a single approved fire apparatus access road when all buildings are equipped throughout with approved aqwoniatic sprinkler systems. 4- When buildings are very large in area, two separate fire apparatus access roads are required because a large building may be difficult to access quickly, and if one of the access roads is blocked there is a large po- tential for loss. The exception acknowledges the ability of sprinklers to prevent most fires from growing quickly. D104.3 Remoteness. Where two access roads are required, they shall be placed a distanceaparl equal to not less than one half of the length of the maximum overall diagonal dimension of the property or area to be served, measured in a straight line between accesses. ❖This concept is similar to the one dealing with the re- moteness of exits. One of the primary reasons for mul- tiple access roads is to ensure that if one access road is blocked or otherwise unavailable, another will allow access to the fire department. Therefore, when more than one access road is required, they need to be sep- arated by enough distance to avoid a Situation where both would be blocked or unavailable simply because they are too close to one another. SECTION D105 AERIAL FIRE APPARATUS ACCESS ROADS D105.1 Where mluirvd. Buildings orporfions ofbuildings or facilities excecding30 feet (9144• innii in height abovethe low- c,gt level of lire department vehicle access sbUll lac PJ-Qvidul with approved, fire apparatus access roads capable cal' accorn- madating fire department acrial apparatus, overhead utility and power lines shall not be located widflinthe aefial Tire -IPPLA- raLus access roadway. -.'-When building height exceeds 30 feet (9144 mm) above the lowest level of fire department vehicle ac- cess, the use of aerial fire apparatus becomes more necessary, This section states in general terms that the access roads must be, capable of handling the larger aerial equipment and its need for wider road widths. The requirement for clear overhead space pre - and vents interference with the aerial apparatus , avoids the possibility of personnel injury and eqwp- ment damage from electrical shock. These factor,,,, must be included in site design to make certain the feredepartment has the needed access to the buildings. D105.2 Width. Aerial fire apparatus access roads shall have a minimum unobstructed width of 26 feet (7925 mm), exclusive of shoulders, in the immediate vicinity of any building or por- tion of building more than 30 feet (9144 mm) in height. This section specifies the rnininium, road width needed for aerial apparatus, This width allows the aerial appa- ratus outriggers to be set solidly on the road surface for safe operation of the aerial euipment. Including adjacent road shoulders in the width measurement could yield substandard and inadequate driving or set-up surfaces for aerial apparatus. Accordingly, this section rnakes it clear that any road Shoulders area` not to be included in the minimum fire apparatus access road width. D103.3 Proximity At 'l to building. east one of Che required access r0lileS moo . ting this condition shall be located within a minimunn of 15 feet C� (4572 rum) and it maximum of 30 fee, (9144 mrn) from the buillding, and shah be positioned parallel to one entire side of the building. ❖This section requires that the access road be specifi- cally located where aerial equipment will have maxi- mum access to the building. The fire code official, in consultation with the fire chief, Must approve the final location of the road required by this section. Although not stated in this section, fireground operation proto- cols often place a truck company on the front side of the building so that the entire front can be reached by the ladder or tower basket. The road that will meet the requirements of this section will often be the, public street upon which the building fronts, The distance from the building to the road must be reviewed and ap- proved to match the capabilities of the fire department aerial equipment versus the buildings height. SECTION D106 MULTIPLE -FAMILY RESIDENTIAL DEVELOPMENTS D106I pr(jects 11;1ving anon ilian loo dwelling units. Mul- tiplo-family msidenika i,-,,rojecls Inlying more than 100&Veliu�zg wax shrill be eLittippekl 1l111)uj1(?u1 with two separate and approved fire apparatus access roads. f?+ctlatitara: lea le lA lliVi1lo t1f) 11) ?()0 c,111-Wilitly, (VON III.-Ily have as single 4q)prored IIN appw-.Ilus acces,; road whei'111 bklildin1„�, including occupancies, are etILlipped dirou.1ghow wide appmved awmnalk, Slorinkler SYSIVhIls ii,Ntl Mill Section 903.3. 1 . I or 903.3.1.2. ❖ This section is intended to provide some specific guid- ance to jurisdictions for dealing with larger apartment complexes, Again, Section 503 suggests that more than one access road is needed when there is a poten- tial for an access road to be unavailable. In a large complex there is a large potential for loss. Lack of ac- cess should not become a factor in such a loss. This section requires at least two separate access roads any time the number of dwelling units exceeds. 100. The term "approved" is used because the layoul. of the complex may require some specific consider- ations when providing the access roads. For example, having two access roads leading onto a facility that come together before reaching the actual buildings may not satisfy the criterion of remoteness to be effec- tive in an emergency. The exception would allow a single access road for up to 200 dwelling units if all buildings op the site are fully sprinklered; to meet code requirements. This ex- ception acknowledges the effectiveness of sprinklers in slowing the growth of fires'- therefore, 1he risk of hay.ing the access road blocked or unusable is more acceptable. 771 "7 with an approved auiotnatic sprinkler system. Because of the large size of such complexes and the potential for large losses, even where sprinklers are in- stalled as required by Section 903.2.8, two approved access roads must be provided. This section empha- sizes that the exception in Section D 106.1 is for up to 200 units only. SECTION D107 VNE- OR TWO-FAMILY RESIDENTIA DEVELOPMENTS I D107.1 One- or two-family dwelling residential develop- ments. Developments or one- or two-family dwellings where, tile 11uniber uf&,t,e,(1hig units exceeds 30 shall be provided with separate and appawed fire apparatus access roads and shall iaIcct tfic of Section D 1043. Exceptions: 1. Where there are more than 30 dwelling units on a sin- gle public or ltriv:,ae ZtCCCNS road and all divelling llysit.y aro, ��qklippcd througlaartat %vi -,h an approved awomalic in accordance with Section 901-:3). 1, 1, 90,3..3, 1.2 or 903.3.1.3 of Lhe International Fire Code, access from two directions shall not be required, 2. The number of dwelling units on a single fire appara- tus access road shall not be increased unless fire appa- ratus access roads will connect with future development, as determined by thefire code official. This section requires that one= and two-family dwelling subdivisions with more than 30 dwellings have more than one fire apparatus access road into tl,ie develop- ment. The second access road is needed in case one access road for any reason becomes unusable, The two access roads rnust, also be rernole from one an- other as required by Section D1 04,3 to reduce, the like- lihood that both access roads would be compromised by a single fire or other emergency event. Exception 1 states that when the are more than 30 dwelling units equipped throughout wit.11 an approved sprinkler system in accordance with NFPA 13, °131 or 13 D. asapplicable or aj:)lproved, a second access road 2009 INTERNATIONAL FIRE CODE COMMENTARY APPENDIX D-5 FIRE SERVICE FEATURES including here those definitions that are most closely associated with the subject matter ofthis chapter isto provide more convenient access tothem without hav- ing torefer back toChapter 2.For convenience, these terms are also listed in Chapter 2 with a cross refer- ence to this section. The use and application of all de- fined terms, including those defined in this section, are efer-encebothioaection.Theumeondopp|ioadonofaUde- finedtenno.ino|udingthooedefinadinthioaecdon.are set forth in Section 201. FIRE APPARATUS ACCESS ROAD. & road that provides fin`uppumtuoaccess from afire station mufaci|i/y.bulidhogur portion thereof. This is xgonom7 term inclusive of all other terms such m/5,elane, public street, private street, parking lot lane and access roadway. �>Fire access meda are required to be all-weather sur- faced roadways that are designed for the weight and type ofemergency vehicle that may use the road. No specific surface material iurequired for afire appara- tus aooeea roadway. It is uptothe fire code official to decide whether the surface will support the load ofthe anticipated emergency vehicles in accordance with Section 503.2.3. It should be noted that this is a general herrn in- tended toinclude any private roadway providing the required access toa building. Assuch, private drive- ways could be included and subject tothe provisions ofSection 5O3. FIRE COMMAND CENTER. The principal attended or unattended location where the otxmo of the duo:cboo, alarm communications and control systems iodisplayed, andhnm which the xyntrm(n) can homanually controlled. v- Fire command centers are communication centers where dedicated manual and automatic facilities are lo- cated for the origination, control and transmission ofin- formation and instructions pertaining to e fire emer- gency to the occupants (including fire department personnel) ofthe building. Fire command centers must provide facilities for the control and display ofthe status ofall fire protection (deteution.signaling, eiojsystems. These stations must be located in secure areas as ap- proved by the fire code official. Often, this is a location near the primary building entrance. Fire command cen- ters may also be combined with other building opera- tions and security facilities, when allowed by the fine code official; however, operating controls for use bythe fire department must baclearly marked and not subject to tampering by unauthorized parsons (see the com- mentary toSection 5O8.1for further dimouosion). FIRE DEPARTMENT MASTER KEY. Alimited issue key "fspecial orcontrolled design /vbecarried byfire department officials incommund which will open key boxes on specified properties. -.*-Several companies market emergency entry systems that use master keys. These keys are used hoopen key boxes and entry gotma, and turn on/offe|ectmnin switches that control electric gates and certain build- ing funuduna, such as smoke ounbn| syotemu, fans and special processes. FIRE LANE. Aroad nrother passageway developed to allow 'the passage of fire apparatus. /\ Dm lane is on/ necessarily intended for vehicular traffic other than fire apparatus. ~*eThe term "fire lane" iasynonymous with "fire apparatus access road'';however, the driving surface may not be the same oofor opublic road. KEY BOX. Asecure device with xlock operable only byufire department master key, and containing building entry keys and other keys that may bcrequired for access iuuoemergency. The key box iopart nfanemergency entry system. The building owner/manager places akey box orkey vault onthe exterior ofthe building oraLthe entrance tothe fani|ity, placing keys, access cards orsecurity codes inside the box. The emergency responders can use their special fire department master key to enter the box and gain access iothe building orfacility. SECTION 503 1 503.1 Where required. Fire apparatus access roads shall be provided and mai nndnndinaccordance *i/hSrctionn503.l.| through 503.1.3. f^This section introduces the requirements for dedicated fire apparatus mooeas roads serving new and relo- cated buildings in the jurisdiction. The requirements are tobeestablished in coordination with the local fire service to accommodate the jurisdiction's fire appara- tus and equipment. The intent of the requirements is to provide the fire department with sufficient anoeaa to buildings toenable efficient fire suppression and res- cue operations. 503.1.1 Buildings and facilities. Approved (irr upyoouus ucooao roads shall hoprovided for every facility, building or portion of building hereafter constructed or moved into or within the jurisdiction, The 5,c apparatus access road nbaU comply with the requirements ofthis section and shall extend towithin |5Ofeet (4572Omm)ofall portions nfthe facility and u1lpnzbunonfthe exterior walls oftbefimtstory of/bobuilcbog, axmeasured hyomapproved route around the exterior ofthe building orfacility. Exception: Thefirc code official is authorized to increase the dimension of 150 feet (45 720 ,um) where: |. The building is equipped throughout with an u»p,v,e/ automatic sprinkler system installed in accordance with Szcdvo 903I1l 903.3.1.2 or 903.3].l 2. Fire uppurumv ucxmo roads cannot he installed because oflocation vx prnpory, wpography, water- ways, me=woys. nonnegotiable grades nrn�ersimi)mcondi- tiono, and an op//o,od alternative means of fin, protection is provided. 5-2 2009 INTERNATIONAL FIRE COD& COMMENTARY 171F11_. access to the interior of the building could be achieved by hose streams or personnel. In the case of an exte- rior wall constructed on a Property line with a zero -foot fire separation distance,. Table 602 of the IBC requires that such walls have a flre-resist;-r)nce rating of be- tween I and 3 hours (depending on the occupancy group assigned to the building) and 113C Section and Table 705.8 require that such waits be without any openings, As such, access to the first (or any) floor level of that exterior wall would appear to provide little or no tactical usefulness to the fire department, espe- cially if code -complying access is provided to other sides of the building, � F�I�lBUILDING 'A ACCESS SS ROAD For SI: I foot = 304.8 min, Figure 503.1.1(3) SMALL BUILDING ACCESS 503-1.2 Additional access. The fire rade Official is authorized to require more than One fire app'clralus zIcccss road based on the pate ,lint for i rnpairal ell t cal single road by vefflcj ccglaestioll, condinop of clinnaiie conditions or other faclors tha[ could limit aaCCCSS. -*.-Additional access roads may be required by the fire code official based on his or her knowledge of traffic patterns, local weather conditions, terrain or the antici- pated magnitude of a faoltentlal incident. 503-1.3 Iligli-pilvtj e.l�ire deparl niont vchicle access to geshailcomply 23. •:® Chapter 23 has special requirements for building ac- cess in occupancies with high -piled storage, but the requirements for fire apparatus access roads are the same as those required in this chapter. 503,2 SPecifications. Fire apparatus access roads shall be installed and arranged in accordance with Sections 503.2.1 throulgh 503.2.8, -.*-The dimensions of fire department access roads are based or, the size and height of emergency vehicles, their turning radius and the fact that emergency veh- 5-4 EXHIBIT 3 icles may be required to pass each other on the ac- Cessroad. 503.2.1 Dimensions. Fireapparatus access roads shall have an unobstructed width of not less than 20 feet (6096 min), exclu- sive Of shoifldenj, cxc,-pl for approj°ed security cyales in accol dance With Section 5031.6, and an unobstru"cled vertical clearance of not less thari 13 feet is inches (,,I 115 in in). The dimensions in this section are established to give fire apparatus continuous and unobstructed access to buildings and facilities, This Section requires that the unobstructed width of a fire apparatus access road must not be less than 20 feet (6096 nlrn). The intent of the minimum 20 -foot (6096 rrin") width is Ira provide space for fire apparatus to Pass one another during fire -ground operations. The, need to pass may occur when engines are parked for hydrant hook-up, laying hose or when trucks are performing aerial ladder operations. When an engine company is connected to a fire hydrant parallel to the curb using a front suction connection and using a side - discharge port on fl-na purnp, the horizontal distance that is needed to rinake a no-khik bend in the discharge fire hose can be considerable, especially when a large -diameter hose (LDH) is being used. The road- way width needed to accommodate such a common operational scenario would be the width of the appara- tus plus the no -kink bending radius of the discharge hose, leaving minirnal roadway width for ottier appara . tus to squeeze by, if needed, Including adjacent road shoulders In the 20-lbot (6096 mm) width mpasur(,,- ment could yield substandard and inadequate driving surfaces for apparatus and, as such, they are not to be included in the minimum width. The minimum vertical clearance of 13 feet, 6 inches (4115 mm) is the standard clearance used for highway bridges and underpasses. The vertical clearance re- quirement would apply in cases where a building or portion of a building, such as a Canopy or Porte-coch- ere, Projects overall or a portion of the required width of the fire apparatus access road. Conversely, if the full required width of the fire apparatus access road is pro- vided outside of the footprint of the projecting building element, the vertical clearance requirement would not apply. It is not the intent of this section that all project- ing elements be constructed with a 13 -foot, 6 -inch (4115 mm) vertical clearance, regardless of whether they encroach upon the required width of a fire a ppera- tus access road. Appendix D contains additional guid- ance on fire apparatus access road dimensions. It is important to note that the appendices are not consid- ered part of the code unless specifically adopted (see Section I of the sample adopting ordinance on page xiii of the code). 503.2,2 Atithority. -I'llie'lil, ce)el�! sof a ' 11 the author- ity To 1'equire al'i iavic'Ise in Ifite [11111irliM'D c 11"TNS widths where divy 1tre inadv(Juate for 1,11v or rescue operations. 4• The fire code official may require greater dimensions based on the size and maneuverability of the antici- pated emergency response apparatus, including mu- EXHIBIT 4 Sec. 29-1. - International Fire Code—Adopted. There is hereby adopted by the City of Denton, Texas for the purpose of prescribing regulations governing conditions hazardous to life and property from fire and explosion, those certain Codes and Standards known as the International Fire Code, including Appendices AJ, published by the International Code Council, Inc., being particularly the 2012 editions thereof and whole thereof, save and except such portions as are hereinafter deleted, modified or amended by section 29-2 of this chapter. A copy of said Fire Code is now filed in the office of the city secretary, and is hereby adopted and incorporated as fully as if set out at length herein, and from the date on which this ordinance shall take effect, the provisions thereof shall be controlling within the limits of the City of Denton and within five thousand (5,000) feet thereof, where specified therein. (Ord. No. 2006-037, § 1, 2-7-06; Ord. No. 2009-098, § 1, 4-21-09; Ord. No. 2012-228, § 1, 9-11- 12; Ord. No. 2015-197, � 1, 7-21-15) Page 1 EXHIBIT 5 October 10, 2016 Dear Resident or Property Owner, RE: McCormick Street Parking The Traffic Safety Commission has been advised of safety concerns related to the level of on - street parking on McCormick Street between Underwood Street and Margie Street. On -street parking on the east and west side of McCormick impairs the mobility of public safety vehicles needing to access McCormick. As a property owner or resident on or adjacent to McCormick Street, City of Denton officials want to ensure you have the opportunity to participate in the discussion regarding on -street parking on McCormick. The Denton Traffic Safety Commission encourages your participation in the consideration of this issue as part of their November meeting. City of Denton Traffic Safety Commission Meeting Monday, November 7, 2016 5:30 pm City Council Chambers, City Hall 215 East McKinney Street Denton, Texas 76201 Should you have any questions regarding this proposal, please contact Mark Nelson, Director of Transportation, at (940) 349-7702. "Dedicated to Quality Service" www.cityofdenton.com EXHIBIT 6 October 21, 2016 The current level of on -street parking on McCormick Street between Underwood Street and Margie Street has become a concern of public safety. On -street parking on the east and west side of McCormick Street has impaired the mobility of public safety vehicles needing to access McCormick. As a property owner or resident an or adjacent to McCormick Street, City of Denton officials want to ensure you have the opportunity to participate in the discussion regarding on -street parking on McCormick. The Denton Traffic Safety Commission encourages your participation in the consideration of this issue as part of their November meeting. City of Denton Traffic Safety Commission Meeting Monday, November 7, 2016 5:30 pm 215 E. McKinney Street Denton, Texas 76201 Should you have any questions regarding this proposal, please contact Mark Nelson, Director of Transportation, at (940) 349-7702. www.cityofdenton.com • ADA/EOE/ADEA • TDD (800) 735-2989 EXHIBIT 7 DRAFT MINUTES TRAFFIC SAFETY COMMISSION November 7, 2016 After determining that a quorum of the Traffic Safety Commission was present, the Commission convened the meeting on Monday, November 7, 2016 at 5:30 p.m. in the City Council Work Session Room, City Hall, 215 East McKinney Street, Denton, Texas. Present: Chair Wally Campbell, Patrice Lyke, Michael Hennen, Jim Owen, Patrice Lyke, and Daniel Krutka Absent: Vice Chair Nancy DiMarco and Cody Robinson Also Present: Mark Nelson, Director of Transportation; John Davis, Director of Engineering Services; Pritam Deshmukh, Senior Engineer; Laura Behrens, Fire Marshall; Julie Anderson, Bicycle and Pedestrian Coordinator; John Chapman, Intern and Kim Mankin, Administrative Supervisor OPEN MEETING 2) Receive a report, hold a discussion and provide a recommendation relating to a no parking restriction ordinance on the east and west side of McCormick Street from Underwood Street to Margie Street. Mark Nelson talked about this item stating that this item was initiated because of a public safety issue. There was an accident on this street segment and first responders could not get down the roadway. The backup materials contain the information by our public safety to restrict that street segment due to the width of the road. In some cases this street is as narrow as 21 feet wide. Fire Code state the roadway needs to be 26 feet wide to allow parking on one side. The recommendation from staff is to move forward with this restriction for public safety reasons. Staff went through the process of sending out mailers to owners as well as to addresses in the area. Staff also posted door hangers in the same area. There are a few citizens in the audience to speak for this item, an email was also received. Mr. Tiller (email) indicated he would not be in support of the no -park restriction. Chair Campbell asked the Commission for questions. Michal Hennen inquired about parking on one side of the street. Laura Behrens stated a 20 foot access requirement has to be maintained. Anything below the 26 feet, is lower than the normal for planning purposes. Mr. John Davis asked if this was local code. Behrens answered this is from the 2012 International Fire Code that was adopted. Citizen Robert England 1114 &1118 McCormick rental property. In favor of no park. There was a motion by Commissioner Hennen with the second by Commissioner Owen, vote 5-0 approve. Commissioner Lyke stated she still wants a more comprehensive approach including UNT. Adjournment: 7:26pm sAlegal\our documents\ordinances\] 6\no parking mccormick. doe ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROHIBITING PARKING ON OPPOSITE SIDES OF MCCORMICK STREET FROM UNDERWOOD STREET TO MARGIE STREET; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; PROVIDING THAT VIOLATIONS OF THIS ORDINANCE SHALL BE GOVERNED BY CHAPTER 18 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. When signs and/or marking or any combination thereof are in place giving notice thereof, no person shall park a vehicle on opposite sides of McCormick Street from Underwood Street to Margie Street. SECTION 2. The provisions of Section 1 prohibiting the parking of vehicles shall apply on the designated portion of the above named street or streets except when it is necessary to stop a vehicle to avoid conflict with other traffic or in compliance with the direction of a police officer or official traffic control device. SECTION 3. All provisions of the ordinances of the City of Denton in conflict with the provisions of this ordinance are hereby repealed, and all other provisions of the ordinances of the City of Denton, not in conflict with the provisions of this ordinance, shall remain in full force and effect. SECTION 4. 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 invalidity. SECTION 5. Save and except as amended hereby, all the provisions, sections, subsections, paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 6. Any person found liable of violating this Ordinance by a court of competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500). Each day that a provision of this ordinance is violated shall constitute a separate offense. The disposition of parking citations issued pursuant to this Ordinance shall be governed by Division 3 titled "Parking Violations Division" of Chapter 18 of the Code of Ordinances. SECTION 7. This Ordinance providing for a penalty shall become effective 14 days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record -Chronicle, the official newspaper of the City of Denton, Texas, within 10 days of the date of its passage. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY --------------- BY: CHRIS WATTS, MAYOR Page 2 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON Legislation Text File #: ID 16-1491, Version: 1 Agenda Information Sheet DEPARTMENT: Finance CM/ ACM: Bryan Langley Date: December 6, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas amending the Fiscal Year 2016-17 Budget and Annual Program of Services of the City of Denton to allow for adjustments to the Tourist and Convention Fund of one hundred fifty six thousand seven hundred and twenty dollars ($156,720); declaring a municipal purpose; providing a severability clause; providing an open meetings clause; and providing for an effective date. BACKGROUND The Tourist and Convention Fund reports the receipt and distribution of the City's Hotel Occupancy Tax, which is levied at 7% of room rental rates. The Hotel Occupancy Tax Committee was created to monitor allocation and use of hotel occupancy tax funds, ensuring funds are being used to directly enhance and promote tourism and hotel/convention industry and to recommend organizations to receive funding to City Council. The Hotel Occupancy Tax Committee met on August 2, 2016 to review budget requests from various entities and develop a recommended budget for the Tourist and Convention Fund. The Committee's recommended budget was presented to the City Council but not incorporated into the final adopted budget. The adopted budget was the same as the prior fiscal year $2,167,494 in error, and should have been the recommended budget of $2,324,214. City staff is proposing to amend the City's FY 2016-17 Budget to make this correction by increasing the Tourist and Convention Fund budget by $156,720 as recommended by the Hotel Occupancy Tax Committee. This would increase the expenditure budget for this fund from $2,167,494 to $2,324,214 for FY 2016-17. RECOMMENDATION Staff recommends adoption of the ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On August 16, 2016 during the FY 2016-17 Budget and CIP work session, the City Council received and discussed the budget recommendation from the Hotel Occupancy Tax Committee. Council verbally recommended moving forward with the budget recommendation of the Hotel Occupancy Tax Committee. FISCAL INFORMATION This ordinance will amend the FY 2016-17 Budget and Annual Program of Services to allow for an increase to the Tourist and Convention Fund by $156,720, increasing appropriations from $2,167,494 to $2,324,214. City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1491, Version: 1 STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS 1. Ordinance 2. Tourist & Convention Fund Revenue and Expenditure Summary Respectfully submitted: Chuck Springer, 349-8260 Director of Finance Prepared by: Nancy Towle Budget Manager City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING THE FISCAL YEAR 2016-17 BUDGET AND ANNUAL PROGRAM OF SERVICES OF THE CITY OF DENTON TO ALLOW FOR ADJUSTMENTS TO THE TOURIST AND CONVENTION FUND OF ONE HUNDRED FIFTY SIX THOUSAND SEVEN HUNDRED TWENTY DOLLARS ($156,720); DECLARING A MUNICIPAL PURPOSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR AN OPEN MEETINGS CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, pursuant to Ordinance No. 2016-262, the City Council of Denton, Texas, approved the Fiscal Year 2016-17 Budget and Annual Program of Services (the "Budget"); and WHEREAS, the City of Denton desires to increase funding in the Tourist and Convention Fund; 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 2016-2017 Budget and Annual Program of Services is hereby amended by the City Council as follows: to allow for an adjustment to the Tourist and Convention Fund of $156,720, increasing appropriations from $2,167,494 to $2,324,214. 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 2016-2017 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. 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. i• AND • this the - day of 2016 ATTEST: JRUJIFE 7ALTF-W, -e4T7v7 ISWAT• _1 BY: X:L TOURIST & CONVENTION FUND RESOURCE & EXPENDITURE SUMMARY RESOURCES 2016-17 ADOPTED 2016-17 AMENDED TOTAL RESOURCES $ 2,167,494 $ 2,324,214 2016-17 2016-17 EXPENDITURES ADOPTED AMENDED Air Fair $ 11,290 $ 15,000 Black Chamber of Commerce 16,572 22,572 Chamber of Commerce CVB 1,084,995 1,084,995 CVB Welcome Center 200,000 200,000 Cinco de Mayo 8,820 11,820 Civic Center Operations 27,875 35,875 Contingency - 19,720 African American Scholarship Foundation. - 8,000 Denton Area Running Club - 3,500 Denton Community Market 10,500 15,500 Denton Community Theatre 25,000 25,000 Denton County Museums 150,000 150,000 Denton Festival Foundation 91,309 100,000 Denton Firefighter Museum 21,500 21,000 Denton Holiday Festival Association 7,700 17,700 Denton Public Art Committee 51,482 55,781 Denton Square Maintenance 12,183 30,000 Dog Days of Summer 16,086 18,086 Greater Denton Arts Council 129,852 140,000 juneteenth Committee 13,705 17,205 Kiwanis - Turkey Roll Bicycle Rally 4,850 5,325 Main Street Association 25,369 30,369 Marketing SXSW 22,430 23,000 Music Theater of Denton 5,250 5,250 North Texas State Fair Association 125,000 150,000 Square Lighting Maintenance 2,650 - Tejas Storytelling Association 52,747 52,747 Texas Filmmakers 8,269 15,769 Water Works Park 42,060 50,000 TOTAL EXPENDITURES $ 2,167,494 $ 2,324,214 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON Legislation Text File #: ID 16-1503, Version: 1 Agenda Information Sheet DEPARTMENT: Waste Water CM/ ACM: Howard Martin Date: December 6, 2016 SUBJECT Consider adoption of an ordinance authorizing the City Manager of the City of Denton, Texas ("City") to execute, for and on behalf of the City, an Easement Purchase and Abandonment Agreement ("Agreement"), for the purchase price of Nineteen Thousand Four Hundred Dollars and No Cents ($19,400.00), and other consideration, as prescribed in the Agreement, as attached to the ordinance and made a part thereof as Exhibit "A", by and between the City and Mohamad R. Haghighi and Soraya Irannejad, providing for (a) the purchase by the City of (i) a Sanitary Sewer Easement, encumbering a 0.1105 acre tract, being more particularly described in the Sanitary Sewer Easement, being attached to and made a part of the Agreement; and (ii) a Temporary Construction Easement encumbering 0.0403 acre tract of land, being more particularly described in the Temporary Construction Easement, being attached to and made a part of the Agreement; (b) the Partial Abandonment and Release by the City of a portion of that certain water and sanitary sewer easement, dated February 12, 1960, from Dwight L. Archer, Jr. and Duane H. Archer to the City, recorded in Volume 454, Page 6, Deed Records, Denton County, Texas; and (c) the Complete Abandonment and Release of (i) that certain water and sanitary sewer easement, dated February 12, 1960, from Ravanelle McMahan to the City, recorded in Volume 454, Page 1, Deed Records, Denton County, Texas; (ii) that certain water and sanitary sewer easement, dated February 18, 1960, from Herbert Cottle and wife, Fae Cottle to the City, recorded in Volume 454, Page 117, Deed Records, Denton County, Texas; (iii) that water and sanitary sewer easement, dated February 12, 1960, from Ruth Rich to the City, recorded in Volume 454, Page 3, Deed Records, Denton County, Texas; and (iv) that certain public utility easement dated April 5, 1974, from Joe Belew and Terry Schneider to the City, recorded in Volume 702, Page 243, Deed Records, Denton County, Texas; all tracts of real property being in the William Daniel Survey, Abstract No. 378, generally located in the 2300 block of Fort Worth Drive; authorizing the expenditure of funds; providing a savings clause; and providing an effective date. (Fort Worth Drive Utility Relocations Project - Parcel 12E) BACKGROUND The project requires the acquisition of a permanent Sanitary Sewer Easement to accommodate the installation of the proposed sanitary sewer facilities. Mohamad R. Haghighi and Soraya Irannejad are the owners of property encumbered by certain public easements, situated in the William Daniels Survey, Abstract 378, City of Denton, Denton County, Texas. The proposed Agreement provides for abandonment and partial release of that portion of the existing easements encumbering the Mohamad R. Haghighi and Soraya Irannejad property tract in exchange for the purchase of an alternative easement upon the owner's property. The complete abandonment tracts are to be released upon the completion and acceptance by the City of Denton of the installation of the public improvements contemplated by the Mission Street Sanitary Sewer project. The City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1503, Version: 1 Mission Street Sanitary Sewer project being an in -process City public works project, attendant to the Fort Worth Drive Utility Relocations project, but separate. Once the new sanitary sewer infrastructure is put into service via the Mission Street Sanitary Sewer project, the existing deteriorated sanitary sewer lines traversing the Haghighi tracts can be retired/taken out of service. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Typically submitted to PUB; however in this instance, due to PUB meeting cancellation of November 28, no prior action. Project delivery schedule dictates consideration by City Council on December 6, 2016. FISCAL INFORMATION The funding allocated for the Fort Worth Drive Utility Relocations Project is included in Revenue Funds outlined within the Exhibit 4 attachment. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Related Goal: EXHIBITS 1. Location Map 2. Site Map 3. Ordinance 4. Funding Source Prepared by: Ed Cropp Senior Real Estate Analyst Public Infrastructure 2.1 Optimize resources to improve quality of City Roadways Respectfully submitted: P. S. Arora, P. E. General Manager Wastewater Utilities City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, LOCATION MAP PRI 4(1 ■ i, ' tl; R 1 •1 x n v0.4.a LII r krR4 ry C', e JJ Q�wp, y� A n f�r '7'egy9'? n W Mnrc� U ..,,m - k, A,�i'� �..�r� e K—,.JW 0i V� tn, XVint,": p y/} J rr _ n LILA Lu m TM ro r" yy ProjectLimits A " 4, PA W c°u, t ,i PRI 4(1 ■ N W E S Exhibit 1 to the AIS Haghighi Property t�> s HOBSON HIGH VIEW _vn Fort Worth Drive Utility Relocates 1,000 500 0 1,000 2,000 3,000 Feet Mimi 1C,,rc°rDENTON i, ' tl; R 1 •1 x n v0.4.a '7'egy9'? n W Mnrc� U N W E S Exhibit 1 to the AIS Haghighi Property t�> s HOBSON HIGH VIEW _vn Fort Worth Drive Utility Relocates 1,000 500 0 1,000 2,000 3,000 Feet Mimi 1C,,rc°rDENTON Fort Worth Drive Utility Relocations Project Parcel P1 2E- Haghighi Easement Abandonments Exhibit 2 to AIS S:\Legal\Our Documents\Ordinances\16\377 Relocation -Approval Of I laghighi Agreement Ordinance. Doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OF THE CITY OF DENTON, TEXAS ("CITY") TO EXECUTE, FOR AND ON BEHALF OF TIIE CITY, AN EASEMENT PURCHASE AND ABANDONMENT AGREEMENT ("AGREEMENT"), FOR THE PURCHASE PRICE OF NINETEEN THOUSAND FOUR HUNDRED DOLLARS AND NO CENTS ($19,400.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE AGREEMENT, AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A", BY AND BETWEEN THE CITY AND MOHAMAD R. HAGHIGHI AND SORAYA IRANNEJAD, PROVIDING FOR (A) THE PURCHASE BY THE CITY OF (1) A SANITARY SEWER EASEMENT, ENCUMBERING A 0.1105 ACRE TRACT, BEING MORE PARTICULARLY DESCRIBED IN THE SANITARY SEWER EASEMENT, BEING ATTACHED TO AND MADE A PART OF THE AGREEMENT; AND (II) A TEMPORARY CONSTRUCTION EASEMENT ENCUMBERING 0.0403 ACRE TRACT OF LAND, BEING MORE PARTICULARLY DESCRIBED IN THE TEMPORARY CONSTRUCTION EASEMENT, BEING ATTACHED TO AND MADE A PART OF THE AGREEMENT; (B) THE PARTIAL ABANDONMENT AND RELEASE BY THE CITY OF A PORTION OF THAT CERTAIN WATER AND SANITARY SEWER EASEMENT, DATED FEBRUARY 12, 1960, FROM DWIGHT L. ARCHER, JR. AND DUANE H. ARCHER TO THE CITY, RECORDED IN VOLUME 454, PAGE 6, DEED RECORDS, DENTON COUNTY, TEXAS; AND (C) THE COMPLETE ABANDONMENT AND RELEASE OF (I) THAT CERTAIN WATER AND SANITARY SEWER EASEMENT, DATED FEBRUARY 12, 1960, FROM RAVANELLE MCMAHAN TO THE CITY, RECORDED IN VOLUME 454, PAGE 1, DEED RECORDS, DENTON COUNTY, TEXAS; (II) THAT CERTAIN WATER AND SANITARY SEWER EASEMENT, DATED FEBRUARY 18, 1960, FROM HERBERT COTTLE AND WIFE, FAE COTTLE TO THE CITY, RECORDED IN VOLUME 454, PAGE 117, DEED RECORDS, DENTON COUNTY, TEXAS; (III) THAT WATER AND SANITARY SEWER EASEMENT, DATED FEBRUARY 12, 1960, FROM RUTH RICH TO THE CITY, RECORDED IN VOLUME 454, PAGE 3, DEED RECORDS, DENTON COUNTY, TEXAS; AND (IV) THAT CERTAIN PUBLIC UTILITY EASEMENT DATED APRIL 5, 1974, FROM JOE BELEW AND TERRY SCHNEIDER TO THE CITY, RECORDED IN VOLUME 702, PAGE 243, DEED RECORDS, DENTON COUNTY, TEXAS; ALL TRACTS OF REAL PROPERTY BEING IN TIIE WILLIAM DANIEL SURVEY, ABSTRACT NO. 378, GENERALLY LOCATED IN THE 2300 BLOCK OF FORT WORTH DRIVE; AUTHORIZING THE EXPENDITURE OF FUNDS; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. (FORT WORTH DRIVE UTILITY RELOCATIONS PROJECT — PARCELI2E) WHEREAS, the City of Denton, Texas ("City") has approved of the Fort Worth Drive Utility Relocations Project, necessitating the need to acquire certain interests in real property; Exhibit 3 to AIS WHEREAS, Mohamad R. Haghighi and Soraya Irannejad are the owners of certain property on which the City needs to obtain easements; and WHEREAS, following the completion of the in -progress Mission Street Sanitary Sewer project, the City will no longer need certain existing easements; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute, for and on behalf of the City of Denton, the Easement Purchase and Abandonment Agreement (the "Agreement"), by and between the City of Denton, Texas and Mohamad R. Haghighi and Soraya Irannejad, in the form as attached hereto and made part of this ordinance as Exhibit "A". SECTION 2. The City Manager, or his designee, is authorized to execute, for and on behalf of the City of Denton, any and all documents related to closing the transactions contemplated by the Agreement, including without limitation, the Abandonment and Release. SECTION 3. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY o Page 2 CHRIS WATTS, MAYOR APPROVED AS TO LEGAL FORM ANITA BURGESS, CITY ATTORNEY BY:4, >10 Page 3 EXHIBIT "A" EASEMENT PURCHASE AND ABANDONMENT AGREEMENT This Easement Purchase and Abandonment Agreement (the "AGREEMENT") is dated j4oVg r4'6 #jV ,'S , 2016 between Mohamad R. Haghighi and Irannejad Soraya ("OWNER"), and the City of Denton, Texas ("CITY"). WITNESSETH: WHEREAS, Mohamad R. Haghighi and Irannejad Soraya, are the owners of a tract of real property described in a Warranty Deed from Mohamad R. Haghighi and Irannejad Soraya, recorded under Volume 5350, Page 4751, in the Real Property Records of Denton County, Texas ("PROPERTY"), being affected by the public improvement project called the FORT WORTH DRIVE UTILITY RELOCATIONS ("PROJECT"); WHEREAS, CITY is in need of certain easements for sanitary sewer utility purposes and temporary construction easement purposes, in, along, over, upon, under and across a portion of the PROPERTY related to the PROJECT; and WHEREAS, the CITY is amenable, upon the terms, provisions and conditions set forth herein, to partially abandon the following easement as a component of the purchase of sanitary sewer utility easement and temporary construction easement to the CITY by OWNER, to -wit: a. That certain water and sanitary sewer easement, dated February 12, 1960, from Dwight L. Archer, Jr. and Duane H. Archer to the City of Denton, Texas, recorded in Volume 454, Page 6, Deed Records, Denton County, Texas (the "Archer Easement"), SAVE & EXCEPT from abandonment herein that portion of said Archer Easement tract described and depicted in Exhibit "A" and Exhibit "B" respectively and being attached hereto as Attachment 1 and made a part hereof ("Archer Easement Save & Except Tract"). WHEREAS, the CITY is amenable, upon the terms, provisions and conditions set forth herein, to completely abandon the following easements as a component of the purchase of sanitary sewer utility easement and temporary construction easement to the CITY by OWNER, to -wit: a. That certain water and sanitary sewer easement, dated February 12, 1960, from Ravanelle McMahan to the City of Denton, Texas, recorded in Volume 454, Page 1, Deed Records, Denton County, Texas, (the "McMahan Easement"); b. That certain water and sanitary sewer easement, dated February 18, 1960, from Herbert Cottle and wife, Fae Cottle to the City of Denton, Texas, recorded in Volume 454, Page 117, Deed Records, Denton County, Texas, as referred to therein (the "Cottle Easement") c. That certain water and sanitary sewer easement, dated February 12, 1960, from Ruth Rich to the City of Denton, Texas, recorded in Volume 454, Page 3, Deed Records, Denton County, Texas, as referred to therein (the "Rich Easement") d. That certain public utility easement, dated April 5, 1974, from Joe Belew and Terry Schneider to the City of Denton, Texas, recorded in Volume 702, Page 243, Deed Records, Denton County, Texas, as referred to therein (the "Belew & Schneider Easement") WHEREAS, the Archer Easement is hereinafter referred to as the "Partial Abandonment Tract"; WHEREAS, the McMahan Easement, the Cottle Easement, the Rich Easement, and the Belew & Schneider Easement are hereinafter collectively referred to as the "Complete Abandonment Tracts"; WHEREAS, both parties desire to stipulate and agree to the terms, conditions, abandonments and conveyances associated with the installation of sanitary sewer utility improvements for the PROJECT, including (i) the purchase by the CITY and conveyance by the OWNER of the sanitary sewer easement; and (ii) the purchase by the CITY and conveyance by the OWNER of the temporary construction easement; and (iii) the partial abandonment by the CITY of the Partial Abandonment Tract, and; (iv) the complete abandonment by the CITY of the Complete Abandonment Tracts. NOW, THEREFORE, the parties agree as follows: 1. At Closing, the OWNER shall grant, execute, and deliver to the CITY (i) easement in, along, over, upon, under and across the tract of land being described and depicted in Exhibit "A" and Exhibit `B" respectively (the "Sanitary Sewer Easement") attached to that certain Sanitary Sewer Easement, being attached hereto as Attachment 2 and made part hereof, and (ii) easement in, along, over, upon, under and across the tract of land being described and depicted in Exhibit "A" and Exhibit "B" respectively (the "Temporary Construction Easement") attached to that certain Temporary Construction Easement, being attached hereto as Attachment 3 and made part hereof (the Sanitary Sewer Easement and the Temporary Construction Easement are collectively referred to herein as the "Easements"). F) ANITA BURGESS, CITY ATTORNEY Date:g ., b , 32016 [4111 /ilklmtii Mohamad R. Haghighi Date: f1 / -�p 1 , 2016 OWNER: f By. Irannejad S raya Date: // , 2016 "ATTACHMENT 1" to Easement Purchase and Abandonment Agreement ARCHER EASEMENT SAVE AND EXCEPT TRACT EXHIBIT "A" LEGAL DESCRIPTION BEING a 0.0106 acre tract of land situated in the William Daniel Survey, Abstract No. 378, City of Denton, Denton County, Texas, and being part of a 15.00 foot wide Water and Sanitary Sewer Easement as described in a Deed to the City of Denton, Texas, and recorded in Volume 454, Page 6 of the Deed Records of Denton County, Texas (D.R.D.C.T.), and being further described as part of a called 3.244 acre tract of land described in Deed to Mohamad R. Haghighi, as recorded in Document No. 2003-0090814 of the Real Property Records of Denton County, Texas (R.P.R.D.C.T.), and being more particularly described as follows: COMMENCING at a 1 -inch by 1 -inch angle iron found at the northwest corner of a tract of land described in Deed to Mohamad R. Haghighi and Soraia Irannejad, as recorded in Document No. 2015-149745 of the Official Records of Denton County, Texas (O.R.D.C.T.), common with the northeast corner of a 20.00 foot wide Water and Sanitary Sewer Easement as described in a Deed to the City of Denton, Texas, and recorded in Volume 454, Page 1 of the Deed Records of Denton County, Texas (D.R.D.C.T.); THENCE North 89°33'38" West, departing the west line of said Mohamad R. Haghighi and Soraia Irannejad tract and along the north line of said Water and Sanitary Sewer Easement tracts, passing the northwest corner of said 20.00 foot easement and the northeast corner of said 15.00 foot easement at a distance of 79.83 feet, and continuing for a total distance of 259.08 feet to the POINT OF BEGINNING; THENCE South 02°20'05" West, departing the north line of said 15.00 foot Water and Sanitary Sewer Easement, a distance of 15.01 feet to the intersection with the south line of same; THENCE North 89°33'38" West, along the south line of said 15.00 foot Water and Sanitary Sewer Easement, a distance of 31.22 feet to the intersection with the common westerly line of said 3.244 acre tract and the existing easterly right-of-way line of U.S. Highway 377 (Fort Worth Drive, variable width R.O.W.), for the beginning of a non -tangent curve to the left, having a radius of 3334.02 feet, a central angle of 001632", and a chord bearing of North 05'24'31" West, 15.06 feet; THENCE in a northwesterly direction, along the last stated common line and said curve to the left, an arc distance of 15.06 feet to the northwest corner of said 15.00 foot Water and Sanitary Sewer Easement; THENCE South 89033'38" East, departing said common line and along the north line of said 15 foot Water and Sanitary Sewer Easement, a distance of 30.42 feet to the POINT OF BEGINNING, and containing 0.0106 acres of land, more or less. 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD63 (2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2. A Parcel Exhibit of even date herewith accompanies this Legal Description. See Exhibit "B" DEN16023 — P12E-Archer Esmt Save & Except Page 1 of 2 Marvin King, R.P.L-133. No. 5581 Teague Nall and Perkins �0 •T R '• 1517 Centre Place Drive, Suite 320 �.R 4 Denton, Texas 76205 (940) 383-4177 ••MARVIN�• KI T.B.P.L.S. Firm 10011601 °: °°°°°°' °° "°°°`°°° 5581 Date: October 18, 2016 ��.SURVy DEN16023 — P12E-Archer Esmt Save & Except Page 1 of 2 CO m z � 0z 0 mz r z p O mFn c 8ju Z C � CT� cn r= ft � Y m N � � 0 Z N 0 v OD 111 = M m M; 0m Im U.S. HWY. 377 (FT. WORTH DR.) (VARIABLE WIDTH RIGHT-OF-WAY) ' �OHE— --ouE_ ~ —ONE— "ONE— ! MF�n I � .4 _O Z� �a ( I ao mai O IN O I � r a O� O —ONE-- `ONE— -- CITY OF DENTON, Tx 6' WATERLINE iSMT. DOC. NO. 2012-55528 o.R.D.C.T. A 00:z. i .;i P A .� W N -t C7 o (f) Z D r or -0 00 00co, D D O c m cnDcww p i NPmc o CD P m* n W W W N -+ r 0 d -N �D� c�a�mAm a m m y o m Rtii 0— pyy N m V) N N y V C cr X�, j m cn ,mng A Z � 9 � m `v �t5ipp g� 0 o m o s SS V 00 S = 3 OOPe � S z g t• 0 0 00 m CO m z � 0z 0 mz r z p O mFn c 8ju Z C � CT� cn r= ft � Y m N � � 0 Z N 0 v OD 111 = M m M; 0m Im U.S. HWY. 377 (FT. WORTH DR.) (VARIABLE WIDTH RIGHT-OF-WAY) ' �OHE— --ouE_ ~ —ONE— "ONE— ! MF�n I � .4 _O Z� �a ( I ao mai O IN O I � r a O� O —ONE-- `ONE— -- CITY OF DENTON, Tx 6' WATERLINE iSMT. DOC. NO. 2012-55528 o.R.D.C.T. 00:z. i -1-71 �:�' mi © CO m z � 0z 0 mz r z p O mFn c 8ju Z C � CT� cn r= ft � Y m N � � 0 Z N 0 v OD 111 = M m M; 0m Im U.S. HWY. 377 (FT. WORTH DR.) (VARIABLE WIDTH RIGHT-OF-WAY) ' �OHE— --ouE_ ~ —ONE— "ONE— ! MF�n I � .4 _O Z� �a ( I ao mai O IN O I � r a O� O —ONE-- `ONE— -- CITY OF DENTON, Tx 6' WATERLINE iSMT. DOC. NO. 2012-55528 o.R.D.C.T. o ® M— N © C7 O D r O D D O c m x p i CD n W N -+ 0 mD x �D� c�a�mAm a m m y o m Rtii O z m Z 2 cr X�, j O T cn ,mng N p� SmQ � nmo Z m ® M— 0 © g O D D O c m x p i m m Z 2 m Z m m `v z °v v m a z 3 0 0 j _m N mi z m m v y in m 3 A 1 m A`,' z O Z D m D rn "ATTACHMENT 2" to Easement Purchase and Abandonment Agreement NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SANITARY SEWER EASEMENT THE STATE OF TEXAS, § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Mohamad R. Haghighi and Soraya Irannejad (collectively known as"Grantor"), of Denton County, whose mailing address is 3605 Forrestridge Drive, Denton, TX 76210-5547, in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ("Grantee") a 0.1105 acre perpetual sanitary sewer easement in, along, upon, under, over and across the following described property (the "Property"), owned by Grantor, and situated in Denton County, Texas, located in the William Daniel Survey, Abstract Number 378 to wit: PROPERTY AREA DESCRIBED IN EXHIBIT "A", AND DEPICTED IN EXHIBIT "B" BOTH ATTACHED HERETO AND MADE A PART HEREOF For the following purposes: Constructing, reconstructing, installing, repairing, relocating, operating, and perpetually maintaining sanitary sewer pipelines and all related facilities and appurtenances, respectively, in, along, upon, under, over and across said Property, including without limitation, the free and uninterrupted use, liberty, passage, ingress, egress and regress, at all times in, along, upon, under, over and across the Property to Grantee herein, its agents, employees, contractors, workmen and representatives, for the purposes set forth herein, including without limitation, the making additions to, improvements on and repairs to said facilities or any part thereof. This Easement is subject to the following: I. Structures. No buildings, fences, structures, signs, facilities, improvements or obstructions of any kind, or portions thereof, shall be constructed, erected, reconstructed or placed in, along, upon, under, over or across the Property. Further, Grantor stipulates and acknowledges that the Grantee, in consideration of the benefits above set out, may remove from the Property, such buildings, fences, structures, signs, facilities, improvements and other obstructions as may now or hereafter be found upon said Property and dispose of any such buildings, fences, structures, signs, facilities, improvements or obstructions in any manner it deems appropriate without liability to Grantee. 2. Access. For the purpose of exercising and enjoying the rights granted herein, the Grantee shall have access to the Property by way of existing public property or right-of-way. 3. Trees and Landscaping. No shrub or tree shall be planted upon the Property or that may encroach upon the Property. Grantee may cut, trim, or remove any shrubs or trees, or portions of shrubs or trees now or hereafter located within or that may overhang upon the Property without liability to Grantee, including without limitation, the obligation to make further payment to Grantor. 4. Grantor's Rights. Grantor shall have the right, subject to the restrictions contained herein, to make use of the Property for any purpose that does not interfere with the City's rights granted to it herein for the purposes granted. 5. Successors and Assigns. This grant and the provisions contained herein shall constitute covenants running with the land and shall be binding upon the Grantor and Grantee, and their heirs, successors and assigns. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. Witness our hands, this the day of , 2016. Mohamad R. Haghighi Soraya Irannejad 2 ACKNOWLEDGMENT THE STATE OF COUNTY OF This instrument was acknowledged before me on Mohamad R. Haghighi. Notary Public, in and for the State of My commission expires: ACKNOWLEDGMENT THE STATE OF COUNTY OF This instrument was acknowledged before me on Soraya Irannejad. Notary Public, in and for the State of My commission expires: 2016, by 2016, by PI 2E -SSE -1 EXHIBIT "A" LEGAL DESCRIPTION SANITARY SEWER EASEMENT BEING a 0.1105 acre tract of land situated in the William Daniel Survey, Abstract No. 378, City of Denton, Denton County, Texas, and being part of a called 3.244 acre tract of land described in Deed to Mohamad R. Haghighi, as recorded in Document No. 2003-0090814 of the Real Property Records of Denton County, Texas (R.P.R.D.C.T.), and being more particularly described as follows: COMMENCING at a 1 -inch iron pipe found at the northeast corner of said 3.244 acre tract and the southeast corner of a called 5.236 acre tract of land described in Deed to 4th Frame, LLC, as recorded in Document No. 2014-78415 of the Official Records of Denton County, Texas (O.R.D.C.T.); THENCE North 89°28'30" West, along the common north line of said 3.244 acre tract and the south line of said 5.236 acre tract, a distance of 367.56 feet to the POINT OF BEGINNING; THENCE South 02°20'05" West, departing said common line, a distance of 175.46 feet to the intersection with the north line of a 15.00 foot wide Water and Sanitary Sewer Easement described in Deed to the City of Denton, Texas, as recorded in Volume 454, Page 6 of the Deed Records of Denton County, Texas (D.R.D.C.T.); THENCE North 89033'38" West along the north line of said Water and Sanitary Sewer Easement, a distance of 30.42 feet to the intersection with the common westerly line of said 3.244 acre tract and the existing easterly right-of-way line of U.S. Highway 377 (Fort Worth Drive, variable width R.O.W.), for the beginning of a non - tangent curve to the left, having a radius of 3334.02 feet, a central angle of 03°01'11 ", and a chord bearing of North 03046'10" East, 175.70 feet; THENCE in a northeasterly direction, along the last stated common line and said curve to the left, an arc distance of 175.72 feet to the northwest corner of said 3.244 acre tract and the southwest corner of said 5.236 acre tract, from which point a 112 -inch iron rod found bears North 6902'19" East, a distance of 0.50 feet; THENCE South 89028'30" East, along the common north line of said 3.244 acre tract and the south line of said 5.236 acre tract, a distance of 26.01 feet to the POINT OF BEGINNING, and containing 0.1105 acres of land, more or less. NOTES: 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD83 (2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2. An Easement Exhibit of even date herewith accompanies this Legal Description. See Exhibit "B" Marvin King, R.P.L.S. No. 5581 Teague Nall and Perkins 1517 Centre Place Drive, Suite 320 Denton, Texas 76205 (940) 383-4177 T.B.P.L.S. Firm 10011601 Date: October 18, 2016 MARIN. K :.7.A,..5581 SUR' DEN16023 — P12E-SSE-1 Page 1 of 2 STATE OF TEXAS RIGHT-OF-WAY ESM VOL. 288, PG 303 D.R.D.C.T. POINT OF BEGINNING 4TH FRAME, LLC CALLED 5.236 ACRE TRACT DOC. NO. 2014-78415 O.R.D.C.T. 1""" N Ba orltr E-osa L3 _ WOOD FENCE N 89'28'30"W- 367.56' GAS TEST STATION OLIJ Qz�V 0 C; 6mo Z POINT OF COMMENCING 1. RON PIPE (C" -r ■ Ar s 0.1105 ACRES��( op�° �oo��� tnp Q i 1 w Q M •-. ®4 i _0 .3WCM o 20 40 W> P P12WTCE-1 (BY SEPARATE PLAT) ■ Q w `; 1 ARCHER EStUT. SAVE & EXCEPT TR. �f (BY SEPARATE PLA W POINT OF COMMENCING 1. RON PIPE (C" -r ■ Ar s 0.1105 ACRES��( op�° �oo��� tnp Q i 1 w CITY OF DENTON, TX 15' WATER & SANITARY SEWER EASEMENT VOL 454, PG. 8 P o 20 40 so P12WTCE-1 (BY SEPARATE PLAT) W MOHAMAD R. HAGHIGHI CALLED 3.244 ACRES SCALE: 1" = 40' DOC. NO. 2003-0090814 W R.P.R.D.C.T. LINE TABLE LINE BEARING DISTANCE L1 S 02'20'05" W 175.46' I L2 N 89'33'38" W 30.42' I Lei L3 S 89'28'30" E 26.01' --vno-- -x x— SHEETMETAL FENCE I X CITY OF DENTON, TX 15' WATER & SANITARY SEWER EASEMENT VOL 454, PG. 8 D.RD.C.T. NO TRESPASS SIGN IMOHAMAD R. HAGHIGHI CALLED 3.244 ACRES I DOC. NO. 2003-0090814 R.P.R.D.C.T. i CURVE TABLE .CU:RVEJ DELTA ANGLE I RADIUS I ARC LENGTH I CHORD BEARING I CHORD LENGTH C1 1 3'01'11" 1 3334.02' 1 175.72' 1 N 03'46'10" E 1 175.70' NOTES: 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NA083(2011) EPOCH 2010) es derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2. This exhibit was prepared without the benefit of a current title commitment Additional easements, rights-of-way and/or other matters of record may affect this tract that are riot shown hereon. 3. A Legal Description of even date herewith accompanies this Easement Exhibit. See Exhibit "A'. teague nail & Perkins tnp1517 Comm Place Drive, Suite 320 Denton. Texas 76105 940.383.4177 ph 940.383.8026 fx www.tnpinccom T.B.P.L.S. Finn No.10011601 LEGEND _ ® CALCULATED POINT O 12 IRON ROD FOUND (UNLESS NOTED OTHERWISE) (ch CONTROLLING MONUMENT FH (FIRE HYDRANT) © TCLCPI IONC UTILITY E GUY PYRE ijt POWER POLE a UTILITY SIGN (UNLESS NOTED OTHERWISE) ® WATER METER 0 WATER VALVE EASEMENT BOUNDARY LINE PROPERTY LINE EXISTING EASEMENT EXISTING RIGHT-OF-WAY EXHIBIT "B" P12E-SSE-1 I 01=111v v.1105 ACRE SANITARY SEWER EASEMENT SITUATED IN THE WILLIAM DANIEL SURVEY, ABSTRACT NO. 378 CITY OF DENTON, DENTON COUNTY, TEXAS DEN 16023 SHEET 2 OF 2 "ATTACHMENT 3" to Easement Purchase and Abandonment Agreement NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. TEMPORARY CONSTRUCTION EASEMENT THE STATE OF TEXAS, § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Mohamad R. Haghighi and Soraya Irannejad (collectively known as "Grantor"), of Denton County, whose mailing address 3605 Forrestridge Drive, Denton, TX 76210-5547, in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ("Grantee") a temporary construction easement being a 0.0403 acre tract in, along, upon, under, over and across the following described property (the "Property"), owned by Grantor, and situated in Denton County, Texas, located in the William Daniels Survey, Abstract Number 378 to wit: PROPERTY AREA DESCRIBED IN EXHIBIT "A", AND DEPICTED IN EXHIBIT "B" BOTH ATTACHED HERETO AND MADE A PART HEREOF It is agreed that the said City of Denton, Texas, in consideration of the benefits above set out, will remove from the Property above described, such fences, signage, buildings and other obstructions as may now be found upon said Property, for the purpose of construction activities, grading activities and access in, along, upon, under and across said Property. It is specifically stipulated by Grantor that the scope of the access, construction and grading activities shall include the clearing and removal of vegetation and trees that exist within the Property. The City of Denton, its agents, employees, contractors, workmen, and representatives shall have the right of ingress, egress and regress in, along, upon, under and across said Property for the purpose of construction activities or any part thereof. The term of this grant shall expire on the earlier to occur of (i) two (2) years from the date of 1 the "Contractor Notice to Proceed Letter" for the Fort Worth Drive Utility Relocations project; and (ii) June 30, 2019. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. Witness our hand, this the day of , 2016. Mohamad R. Haghighi Soraya Irannejad ACKNOWLEDGMENT THE STATE OF § COUNTY OF M This instrument was acknowledged before me on Mohamad R. Haghighi. Notary Public, in and for the State of My commission expires: 2 2016, by ACKNOWLEDGMENT THE STATE OF COUNTY OF § This instrument was acknowledged before me on , 2016, by Soraya Irannejad. Notary Public, in and for the State of My commission expires: P12E-TCE-1 EXHIBIT "A" LEGAL DESCRIPTION TEMPORARY CONSTRUCTION EASEMENT BEING a 0.0403 acre tract of land situated in the William Daniel Surrey, Abstract No. 378, City of Denton, Denton County, Texas, and being part of a called 3.244 acre tract of land described in Deed to Mohamad R. Haghighi, as recorded in Document No. 2003-0090814 of the Real Property Records of Denton County, Texas (R.P.R.D.C.T.), and being more particularly described as follows: COMMENCING at a 1 -inch iron pipe found at the northeast corner of said 3.244 acre tract and the southeast corner of a called 5.236 acre tract of land described in Deed to 4th Frame, LLC, as recorded in Document No. 2014-78415 of the Official Records of Denton County, Texas (O.R.D.C.T.); THENCE North 89°28'30" West, along the common north line of said 3.244 acre tract and the south line of said 5.236 acre tract, a distance of 357.56 feet to the POINT OF BEGINNING; THENCE South 02020'05" West, departing said common line, a distance of 175.44 feet to the intersection with the north line of a 15.00 foot wide Water and Sanitary Sewer Easement described in Deed to the City of Denton, Texas, as recorded in Volume 454, Page 6 of the Deed Records of Denton County, Texas (D.R.D.C.T.); THENCE North 89033'38" West, along the north line of said Water and Sanitary Sewer Easement, a distance of 10.01 feet to a point for corner; THENCE North 02020'05" East, departing the north line of said Water and Sanitary Sewer Easement, a distance of 175.46 feet to the intersection with the common north line of said 3.244 acre tract and the south line of said 5.236 acre tract; THENCE South 89028'30" East, along the last stated common line, a distance of 10.00 feet to the POINT OF BEGINNING, and containing 0.0403 acres of land, more or less. NOTES: 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NA083 (2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000950630 to scale from grid to surface. 2. An Easement Exhibit of even date herewith accompanies this Legal Description. See Exhibit `B" %1 /®/t kj'l. Marvin King, R.P.L. . No. 5581 OF. Teague Nall and Perkins ��• �`s7� 1517 Centre Place Drive, Suite 320 Denton, Texas 76205 ............... ...MAR.VIN (940) 383-4177 "t°°""°" = 5581 T.B.P.L.S. Firm 10011601 Date: October 18, 2016 DEN16023 — P12E-TCE-1 Page 1 of 2 STATE OF TEXAS RIGHT-OF-WAY ESMT: VOL. 288, PG 303 D.R.D.C.T. N 89°28'30" 1 26.01' VYIRF SEARS N 89'0219' E • 0.50' GAS TES] 37ATION DEAD ENO SIGN W 4TH FRAME, LLC CALLED 5.236 ACRE TRACT DOC. NO. 2014-78415 O.R.D.C.T. POINT OF BEGINNING POINT OF COMMENCING 1' IRON PIPE N 89°28 30" W - 357.56' 2E•TCE" 1 403ACRES ��1N�� tnp pa s o 0 20 40 8 MOHAMAD R. HAGHIGHI CALLED 3.244 ACRES SCALE: 1" = 40' DOC. NO. 2003-0090814 R.P.R.D.C.T. LINE TABLE CITY OF DENTON, TX S 02'20'05" W 15' WATER & SANITARY SEWER EASEMENT L2 VOL. 454, PG. 0 10.01 N EcuwTv 175.46 NO TRESPASS Uj SIGN FAL FENCE Q.,fNQ S U�opo l O 4 ,3 H i •m it + �► Q f Q$ P12WSSE-1 (BY SEPARATE PLAT) f N ARCHER ESMT. SAVE & EXCEPT TR. + (BY SEPARATE PLAT) . DEAD ENO SIGN W 4TH FRAME, LLC CALLED 5.236 ACRE TRACT DOC. NO. 2014-78415 O.R.D.C.T. POINT OF BEGINNING POINT OF COMMENCING 1' IRON PIPE N 89°28 30" W - 357.56' 2E•TCE" 1 403ACRES ��1N�� tnp pa s o 0 20 40 8 MOHAMAD R. HAGHIGHI CALLED 3.244 ACRES SCALE: 1" = 40' DOC. NO. 2003-0090814 R.P.R.D.C.T. LINE TABLE MOHAMAD R. HAGHIGHI CALLED 3.244 ACRES DOC. NO. 2003-0090814 R.P.R.D.C.T. OF STFQ�:n �.� A O . NO E ....................... 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD83(2011) EPOCH 2010) as derived locally from Western Date Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2. This exhibit was prepared without the benefit of a current title commitment. Additional easements, rights-of-way arid/or other matters of record may affect this tract that are not shown hereon. 3. A Legal Description of even date herewith accompanies this Easement Exhibit. See Exhibit "A". 1"gue hall & perkins 151 T Centre Place Drive. Suite 320 Denton, h 94 6205 .383. 940.383.4177 ph 940.363.8020 fx 11�tnp www.lnpinccom T.a.P.L.a. Fiera No. 10011601 5581 S• •0•�O� 9�O•sURj , LINE BEARING DISTANCE CITY OF DENTON, TX S 02'20'05" W 15' WATER & SANITARY SEWER EASEMENT L2 VOL. 454, PG. 0 10.01 L3 EcuwTv 175.46 NO TRESPASS S 89'28730" E SIGN FAL FENCE MOHAMAD R. HAGHIGHI CALLED 3.244 ACRES DOC. NO. 2003-0090814 R.P.R.D.C.T. OF STFQ�:n �.� A O . NO E ....................... 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD83(2011) EPOCH 2010) as derived locally from Western Date Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2. This exhibit was prepared without the benefit of a current title commitment. Additional easements, rights-of-way arid/or other matters of record may affect this tract that are not shown hereon. 3. A Legal Description of even date herewith accompanies this Easement Exhibit. See Exhibit "A". 1"gue hall & perkins 151 T Centre Place Drive. Suite 320 Denton, h 94 6205 .383. 940.383.4177 ph 940.363.8020 fx 11�tnp www.lnpinccom T.a.P.L.a. Fiera No. 10011601 5581 S• •0•�O� 9�O•sURj , LINE BEARING DISTANCE L1 S 02'20'05" W 175.44 L2 N 89'33 3 W 10.01 L3 N 02'20 05 E 175.46 L4 S 89'28730" E 10.00' LEGEND A CALCULATED POINT O 112 IRON ROD FOUND (UNLESS NOTED OTHERWISE) (cm CONTROLLING MONUMENT FH (FIRE HYDRANT) TELEPHONE UTILITY E GUY WIRE LQ POWER POLE a UTILITY SIGN (UNLESS NOTED OTHERWISE) ® WATER METER ® WATER VALVE EASEMENT BOUNDARY LINE PROPERTY LINE EXISTING EASEMENT EXISTING RIGHT-OF-WAY EXHIBIT "B" P12E-TCE-1 BEING 0.0403 ACRE TEMPORARY CONSTRUCTION EASEMENT SITUATED IN THE WILLIAM DANIEL SURVEY, ABSTRACT NO. 378 CITY OF DENTON, DENTON COUNTY, TEXAS DEN 16023 SHEET 2 OF 2 City of Denton `'`Ur�"`°' 2017-2021 CIP Improvements Projects Project Title: Fort Worth Drive Utility Relocations Description: Replace and relocate existing sanitary sewer lines from 35 to south of Moss Creek Road. Business Unit. 640200 -Wastewater- Collection Project Type: Replacement Project Scope: Multiple Year Project Category Code: 038 -STATE HIGHWAY RELOCATIONS F.Y. Cost Code Cost Type ` Funding Source Comment Amount 2017 40100 -CONSTRUCTION 1365 -Other Revenue $1,750,000 2017 47710 -INSPECTION 1365 -Other Revenue $60,000 2017 Total: $1,810,000 Project Total: $1,810,000 Comments: Purpose: TXDOT widening of State Highway 377 requires relocation of sewer lines to new location at City's expense. 09/27/2016 Page 329 of 412 Exhibit 4 to AIS City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1508, Version: 1 DEPARTMENT: CM/ ACM: Date: Waste Water Howard Martin December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider adoption of an ordinance authorizing the City Manager of the City of Denton, Texas ("City") to execute, for and on behalf of the City, an Easement Purchase and Abandonment agreement ("Agreement"), as attached to the ordinance and made a part thereof as Exhibit "A", for the purchase price of Twelve Thousand Three Hundred Fifty Dollars and No Cents ($12,350.00), and other consideration, as prescribed in the Agreement by and between the City and Regi Investments, Inc., providing for (A) the granting to the City of (i) a sanitary sewer easement, encumbering a 0.0066 acre tract of land, a 0.0218 acre tract of land, and a 0.1318 acre tract of land, all being more particularly described in the Sanitary Sewer Easement, being attached to and made a part of the Agreement; and (ii) a temporary construction easement, encumbering 0.0066 acre of land, being more particularly described in the Temporary Construction Easement, being attached to and made a part of the Agreement; and (b) the Partial Abandonment and Release ("Release") by the City of a 0.11 acre portion of that certain sanitary sewer easement, dated November 26, 1956, from R.M. Dobbins and wife, Maude Dobbins to the City, recorded in Volume 427, Page 441, Deed Records, Denton County, Texas; all tracts of real property being in the William Daniel Survey, Abstract No. 378, generally located in the 2200 block of Fort Worth Drive; authorizing the expenditure of funds, providing a savings clause; and providing an effective date. (Fort Worth Drive Utility Relocations Project - Parcel 12W) BACKGROUND The Project requires the acquisition of permanent Sanitary Sewer Easement to encumber a property tract owned by Regi Investments, Inc. As part of the proposed sanitary sewer realignment design, a 0.11 acre portion of an existing sanitary sewer easement will no longer be needed by the City. Regi Investments, Inc. desires that the City abandon and release that 0.11 acre portion of the existing easement, as a component of the City's sanitary sewer easement purchase transaction. It is contemplated that the 0.11 acre portion of the existing easement will be formally released upon the completion and acceptance by the City of Denton of the public improvements slated to be constructed as part of the Fort Worth Drive Utility Relocations project. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1508, Version: 1 Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Typically submitted to PUB; however in this instance, due to PUB meeting cancellation of November 28, no prior action. Project delivery schedule dictates consideration by City Council on December 6, 2016. THE FISCAL INFORMATION The funding allocated for the Fort Worth Drive Utility Relocations Project is included in Revenue Funds outlined within the Exhibit 4 attachment. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Public Infrastructure Related Goal: 2.1 Optimize resources to improve quality of City Roadways EXHIBITS 1. Location Map 2. Site Map 3. Ordinance 4. Funding Source Respectfully submitted: P. S. Arora, P. E. General Manager Wastewater Utilities Prepared by: Ed Cropp Senior Real Estate Analyst City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, LOCATION MAP N W E S Exhibit 1 to the AIS Fort Worth Drive Utility Relocates 1,000 500 0 1,000 2,000 3,000 Feet circ° car DENTON NLII rI r C11 k�R4 s JJy, K Q�wap, y 3g, yd n n rpf ,f J'l a r `","�� y„ n *• '� _ _ =.y LILit`d, Lu p E Limits � _uwProject }ag -- E' a - __ TH , p 9 ri` y a" v � Gw,�efi z n , , m r E Reg� 1nves1rnne.nts&,, x§611 fur -. � DA k4 'IEL n yry. ' n Eli e I+sMn�. gyp'$ IL js� / i �J. ISI N MISSION r � , c4 Ma y, t 1 ` k, 6 "& yy�� �+ qy ry, Y i'�fk uB S i�` SAY ffi gp „ IEW V DA i ¢' N W E S Exhibit 1 to the AIS Fort Worth Drive Utility Relocates 1,000 500 0 1,000 2,000 3,000 Feet circ° car DENTON SALegaROur Documents\Ordinances\16\377 Relocation - Regi Agreement Ordinance.doc Exhibit 3 - Attachment to AIS ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OF THE CITY OF DENTON, TEXAS ("CITY") TO EXECUTE, FOR AND ON BEHALF OF TIDE CITY, AN EASEMENT PURCHASE AND ABANDONMENT AGREEMENT ("AGREEMENT"), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A", FOR THE PURCHASE PRICE OF TWELVE THOUSAND THREE HUNDRED FIFTY DOLLARS AND NO CENTS ($12,350.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE AGREEMENT BY AND BETWEEN THE CITY AND REGI INVESTMENTS, INC., PROVIDING FOR (A) THE GRANTING TO THE CITY OF (I) A SANITARY SEWER EASEMENT, INCUMBERING A 0.0066 ACRE TRACT OF LAND, A 0.0218 ACRE TRACT OF LAND, AND A 0.1318 ACRE TRACT OF LAND, ALL BEING MORE PARTICULARLY DESCRIBED IN THE SANITARY SEWER EASEMENT, BEING ATTACHED TO AND MADE A PART OF THE AGREEMENT; AND (II) A TEMPORARY CONSTRUCTION EASEMENT ENCUMBERING 0.0066 ACRE OF LAND, BEING MORE PARTICULARLY DESCRIBED IN THE TEMPORARY CONSTRUCTION EASEMENT, BEING ATTACHED TO AND MADE A PART OF THE AGREEMENT; AND (B) THE PARTIAL ABANDONMENT AND RELEASE ("RELEASE") BY THE CITY OF A 0.11 ACRE PORTION OF THAT CERTAIN SANITARY SEWER EASEMENT, DATED NOVEMBER 26, 1956, FROM R.M. DOBBINS AND WIFE, MAUDE DOBBINS TO THE CITY, RECORDED IN VOLUME 427, PAGE 441, DEED RECORDS, DENTON COUNTY, TEXAS; ALL TRACTS OF REAL PROPERTY BEING IN THE WILLIAM DANIEL SURVEY, ABSTRACT NO. 378, GENERALLY LOCATED IN THE 2200 BLOCK OF FORT WORTH DRIVE; AUTHORIZING THE EXPENDITURE OF FUNDS, PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. (FORT WORTH DRIVE UTILITY RELOCATIONS PROJECT — PARCEL 12W) WHEREAS, the City of Denton, Texas ("City") has approved of the Fort Worth Drive Utility Relocations Project, necessitating the need to acquire certain interests in real property; WHEREAS, Regi Investments, Inc., a Texas corporation, is the owner of certain property on which the City needs to obtain easements; and WHEREAS, following the completion of the Fort Worth Drive Utility Relocations Project, the City will no longer need a 0.11 acre portion of that certain sanitary sewer easement granted to the City by R.M. Dobbins and wife, Maude Dobbins to the City, recorded in Volume 427, Page 441, Deed Records, Denton County, Texas; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute, for and on behalf of the City of Denton, the Easement Purchase and Abandonment Agreement (the "Agreement"), by and between the City of Denton, Texas and Regi Investments, Inc., in the form as attached hereto and made part of this ordinance as Exhibit "A". SECTION 2. The City Manager, or his designee, is authorized to execute, for and on behalf of the City of Denton, any and all documents related to closing the transactions contemplated by the Agreement, including without limitation, the Abandonment and Release. SECTION 3. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of )2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY am APPROVED AS TO LEGAL FORM ANITA BURGESS, CITY ATTORNEY BY: Page 2 CHRIS WATTS, MAYOR EXHIBIT "A" EASEMENT PURCHASE AND ABANDONMENT AGREEMENT This Easement Purchase and Abandonment Agreement (the "AGREEMENT") is dated '2016 between Regi Investments, Inc., a Texas corporation ("OWNER"), and the City of Denton, Texas ("CITY"), a Texas Home -Rule Municipal Corporation. WITNESSETH: WHEREAS, Regi Investments, Inc., are the owners of a tract of real property described in a Warranty Deed to Regi Investments, Inc., recorded under Document 4005624, on January 20, 1994 in the Real Property Records of Denton County, Texas ("PROPERTY"), being affected by the public improvement project called the FORT WORTH DRIVE UTILITY RELOCATIONS ("PROJECT"); WHEREAS, CITY is in need of certain permanent and temporary easements for sanitary sewer utility and construction purposes, in, along, under and across a portion of the PROPERTY related to the PROJECT; and WHEREAS, the CITY is amenable, upon the terms, provisions and conditions set forth herein, to partially abandon the following existing easement as a component of the purchase of the sanitary sewer utility easement and temporary construction easement to the CITY by OWNER, to - wit: a. A partial abandonment of that certain water and sanitary sewer easement, dated on or about November 26, 1956, from R. M. Dobbins and wife Maude Dobbins, to the City of Denton, Texas, recorded in Volume 427, Page 441, Deed Records, Denton County, Texas, (the "Dobbins Easement"); specifically that portion of said Dobbins Easement tract described and depicted in Exhibit "A" and Exhibit `B" respectively and being attached hereto as Attachment "1" and made a part hereof ("Partial Abandonment Tract"). WHEREAS, both parties desire to stipulate and agree to the terms, conditions, conveyances and partial abandonment associated with the installation of sanitary sewer utility improvements for the PROJECT, including (i) the purchase by the CITY and conveyance by the OWNER of a sanitary sewer easement; and (ii) the purchase by the CITY and conveyance by the OWNER of a temporary construction easement; and (iii) the partial abandonment by the CITY of the Partial Abandonment Tract. NOW, THEREFORE, the parties agree as follows: 1. At Closing, the OWNER shall grant, execute, and deliver to the CITY (i) an easement in, along, under- and across those tracts of land being described and depicted in attachments "P 12W -SSE -1", " P12W-SSE-2". and "Pl2W-SSE-3" attached to that certain Sanitary Sewer Easement, being attached hereto as Attachment "2" and made part hereof, and (ii) an easement in, along, over, upon, under and across the tract of land being described and depicted in Exhibit "A" and Exhibit B" respectively attached to that certain Temporary Construction Easement, being attached hereto as Attachment "3" and made part hereof (the Sanitary Sewer Easement and the Temporary Construction Easement are collectively referred to herein as the "Easements"). 2. As consideration for the acquisition of the Easements, the CITY (i) shall pay to OWNER at Closing the sum of Twelve Thousand Three Hundred Fifty and No/Dollars ($12,350.00) as monetary compensation for the Easements, and (ii) shall execute and deliver to the OWNER, within the time period prescribed below, the Partial Abandonment and Release (the "Release") of the Partial Abandonment Tract. The CITY, by and through the City Manager, or his designee, shall execute and deliver to OWNER the Release, upon the completion, and acceptance by the CITY, of the installation of the sanitary sewer utility improvements contemplated by the FORT WORTH DRIVE UTILITY RELOCATIONS project. OWNER stipulates and agrees that CITY is in need of the Partial Abandonment Tract until it completes the installation of the sanitary sewer utility improvements contemplated by the FORT WORTH DRIVE UTILITY RELOCATIONS project. 3. THE LAWS OF THE STATE OF TEXAS SHALL CONTROL AND APPLY TO THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT IS PERFORMABLE IN DENTON COUNTY, TEXAS. VENUE FOR ANY ACTION ARISING HEREUNDER SHALL LIE SOLELY IN THE COURTS OF COMPETENT JURISDICTION OF DENTON COUNTY, TEXAS. 4. The date on which this Agreement is executed by CITY shall be the "Effective Date" of this Agreement. 5. In the event a party shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice delivered to: OWNER: Regi Investments, Incorporated Attention: Gisel Cassar 2212 Fort Worth Drive, Trailer 163 Denton, TX 76205-7678 Phone 818-802-2990 CITY: City of Denton Paul Williamson Real Estate Division 901-A Texas Street Denton, Texas 76209 Telecopy: (940) 349-8951 N CITY: City of Denton Trey Lansford, Deputy City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: Telecopy: (940) 382-7923 and opportunity to cure, the non -defaulting party may exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the remedy of specific performance or termination of this Agreement. 6. Each party represents and warrants that it has taken all actions necessary to authorize the person executing this Agreement to bind it, in all respects, to all terms and provisions of this Agreement, that such person possesses the authority to execute this Agreement and bind its party hereto, and that this Agreement is binding and enforceable upon it in accordance with the terms hereof. 7. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. CITY OF DENTON, TEXAS HOWARD MARTIN, INTERIM CITY MANAGER Date: .2016 ATTEST: JENNIFER WALTERS, CITY SECRETARY UN Date: 2016 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Date: m 1 4 52016 OWNER: Regi Investments, Inc., a Texas corporation By:'kz TRENE CASSAR, President Date: ////,f111,6 , 2016 11 "ATTACHMENT 1" to Easement Purchase and Abandonment Agreement EXHIBIT LEGAL DESCRIPTION PARTIAL ABANDONMENT OF CITY OF DENTON SANITARY SEWER EASEMENT VOLUME DEED RECORD .DR# BEING a 0.1100 acre tract of land situated in the William Daniel Survey, Abstract No. 378, City of Denton, Denton County, Texas, and being part of a 20.00 foot wide Sanitary Sewer Easement as described in Deed to the City of Denton, Texas, and recorded in Volume 427, Page 441 of the Deed Records of Denton County, Texas (D.R.D.C.T.), and being further described as part of a called 22.709 acre tract of land described in Deed to Regi Investments, Inc., as recorded in Document No. 94-0005624 of the Real Property Records of Denton County, Texas (R.P.R.D.C.T.), and being more particularly described as follows: COMMENCING at a 1/2 -inch iron rod found at the most westerly southwest corner of said 22.709 acre tract, common with the northwest corner of a called 1.730 acre tract of land described in Deed to Regi Investments, Inc., as recorded in Volume 1164, Page 794 of the Deed Records of Denton County, Texas (D.R.D.C.T.), and located in the existing easterly right-of-way line of James Street (variable width R.O.W.); THENCE North 00°35'25" West, departing the north line of said 1.730 acre tract and along the common westerly line of said 22.709 acre tract and the existing easterly right- of-way line of said James Street, a distance of 444.06 feet to the most southerly corner of said City of Denton Sanitary Sewer Easement and the POINT OF BEGINNING; THENCE North 00°35'25" West, continuing along said common line, a distance of 22.74 feet to the intersection with the northwesterly line of said City of Denton Sanitary Sewer Easement; THENCE North 60°58'12" East, departing said common line and along the northwesterly line of said City of Denton Sanitary Sewer Easement, a distance of 267.55 feet to a point for corner; THENCE South 45°19'34" West, departing the northwesterly line of said City of Denton Sanitary Sewer Easement, a distance of 56.31 feet to a point for corner; THENCE South 44°40'26" East, a distance of 5.00 feet to the intersection with the southeasterly line of said City of Denton Sanitary Sewer Easement; THENCE South 60°58'12" West, along the southeasterly line of said City of Denton Sanitary Sewer Easement, a distance of 225.51 feet to the POINT OF BEGINNING, and containing 0.1100 acres of land, more or less. DEN16023 — P12W-Abandonment Page 1 of 3 NOTES: Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD83 (2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1. 000 150630 to scale from grid to surface. 2. An Easement Exhibit of even date herewith accompanies this Legal Description. See Exhibit `B" Marvin King, icing, R.P.L.S. o. 5581 Teague Nall and Perkins 1517 Centre Place Drive, Suite 320 Denton, Texas 76205 (940) 383-4177 T.B.P.L.S. Firm 10011601 Date: October 20, 2016 DEN16023 — P12W-Abandonment Page 2 of 3 FO •>9 �Y.'4. tet}:-_ IBX . c hvIARVIN ° KINC .....va �...o5581 Marvin King, icing, R.P.L.S. o. 5581 Teague Nall and Perkins 1517 Centre Place Drive, Suite 320 Denton, Texas 76205 (940) 383-4177 T.B.P.L.S. Firm 10011601 Date: October 20, 2016 DEN16023 — P12W-Abandonment Page 2 of 3 112' IRF ti O LU 0 d SSMR a 03 BURIED'GTE' REGI INVESTMENTS, INC. CALLED 22.709 ACRES DCC. NO. 94-0005624 R.P.R.D.C.T. co CV N 101" (ER�tJa E ,n OF gE PG. C) 2p SP J 0• � �,2 co 0 n tiM �`ZO .ter..., A•i`� a . 5 0.1100ACRES � TELE - RISER / 1 H CUE CALLED (.; ACRES DOC. 94-0005624 t I y LINE TABLE COCO / O LINE BEARING DISTANCE L1 N 00'35 25" W 22.74' L2 S 45'19'34" W 56.31' L3 S 44'40'26" E 5.00' 011.1 1 Or EII(ItVIPI_ �oHE 0 20 40 80 SSW 0111111, ' SSAtx / & SCALE: 1" = 40' LEGEND CALCULATED POINT O 12 IRON ROD FOUND (UNLESS NOTED )OTHERWISE) tcMn CONTROLLING MONUMENT GUYWIRE POWER POLE O CO (SANITARY SEWER CLEAN OUT) ® ICV (IRRIGATION CONTROL VALVE) SSMH (SANITARY SEWER MANHOLE) UTILITY SIGN (UNLESS NOTED OTHERWISE) © WATER METER EASEMENT BOUNDARY LINE PROPERTY LINE EXISTING RIGHT-OF-WAY — — — — — �OVEEREHEAD EASEMENT —OHE— — —OHE— — — ELECTRIC - '�' '�• '�' EDGE OF ASPHALT Y% q NOTES: f r %' 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate -"W0 r� v'to Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values , ea 1a EXHIBIT utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2 This exhibit was prepared without the benefit of a current title commitment. Additional TI B N ABANDONMENT M ' SANITARY 3. A Legal Description of even date herewith accompanies this Easement Exhibit- See 4279 F E O EE RECORDS F DENTON CCUNW9 TEXAS 1517 Centre Place Drive, Suite 320 Deman, Toxo: 76205 BEING 0.1100 ACRE TRACT SITUATED IN THE WILLIAM DANIELSURVEY, ABSTRACT NO. 378 940.383.4177 ph 940.383.8026 fx np CITY OF DENTON, DENTON COUNTY, TEXAS www.tnpinc.com POINT OF f COMMENCING �E..0F.. TF �;;EG1 ST, R '>` IRF ( A, CO. ••MARVI N �•�KI N REGI INVESTMENTS, INC. • r•••••••••••••••••• CALLED 1.730 ACRES '. 5581 P VOL. 1164, PG. 794 N''•....... •'� D.R.D.C.T. SCALE: 1" = 40' LEGEND CALCULATED POINT O 12 IRON ROD FOUND (UNLESS NOTED )OTHERWISE) tcMn CONTROLLING MONUMENT GUYWIRE POWER POLE O CO (SANITARY SEWER CLEAN OUT) ® ICV (IRRIGATION CONTROL VALVE) SSMH (SANITARY SEWER MANHOLE) UTILITY SIGN (UNLESS NOTED OTHERWISE) © WATER METER EASEMENT BOUNDARY LINE PROPERTY LINE EXISTING RIGHT-OF-WAY — — — — — �OVEEREHEAD EASEMENT —OHE— — —OHE— — — ELECTRIC - '�' '�• '�' EDGE OF ASPHALT Y% q NOTES: f r %' 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate +;°) System (North Central Zone 4202: NAD83(2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values , ea 1a EXHIBIT utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2 This exhibit was prepared without the benefit of a current title commitment. Additional TI B N ABANDONMENT easements, rights-of-way and/or other matters of record may affect this tract that are not shown hereon. ' SANITARY 3. A Legal Description of even date herewith accompanies this Easement Exhibit- See 4279 F E Exhibit "A". 4eaque nail Perkins EE RECORDS F DENTON CCUNW9 TEXAS 1517 Centre Place Drive, Suite 320 Deman, Toxo: 76205 BEING 0.1100 ACRE TRACT SITUATED IN THE WILLIAM DANIELSURVEY, ABSTRACT NO. 378 940.383.4177 ph 940.383.8026 fx np CITY OF DENTON, DENTON COUNTY, TEXAS www.tnpinc.com T.B.P.L-S. Firm No. 10011601 DEN 16023 SHEET 3 OF 3 ATTACHMENT 2 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. SANITARY SEWER EASEMENT THE STATE OF TEXAS, § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Regi Investments, Inc., a Texas corporation ("Grantor"), of Denton County, whose mailing address is 2212 Fort Worth Drive, # 163, Denton, TX 76205-7678 in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ("Grantee") a 0.0066 acre nonexclusive perpetual sanitary sewer easement, a 0.0218 acre nonexclusive perpetual sanitary sewer easement and a 0.1318 acre nonexclusive perpetual sanitary sewer easement in, along, upon, under, and across the following described property (the "Property"), owned by Grantor, and situated in Denton County, Texas, located in the William Daniel Survey, Abstract Number 378 to wit: PROPERTY AREAS DESCRIBED IN ATTACHMENT 2 PAGES 1, 3,5 AND 6 AND DEPICTED IN ATTACHMENT 2 PAGES 2,4 AND 7 ALL ATTACHED HERETO AND MADE A PART HEREOF For the following purposes: Constructing, reconstructing, installing, repairing, relocating, operating, and perpetually maintaining sanitary sewer pipelines and all related facilities and appurtenances, respectively, in, along, upon, under, and across said Property, including without limitation, the free and uninterrupted use, liberty, passage, ingress, egress and regress, at all times in, along, upon, under, and across the Property to Grantee herein, its agents, employees, contractors, workmen and representatives, for the purposes set forth herein, including without limitation, the making additions to, improvements on and repairs to said facilities or any part thereof. This Easement is subject to the following: I . Structures. No buildings, fences, structures, signs, facilities, improvements or obstructions of any kind, or portions thereof, shall be constructed, erected, reconstructed or placed in, along, upon, under, or across the Property. Further, Grantor stipulates and acknowledges that the Grantee, in consideration of the benefits above set out, may remove from the Property, such buildings, fences, structures, signs, facilities, improvements and other obstructions as may now or hereafter be found upon said Property and dispose of any such buildings, fences, structures, signs, facilities, improvements or obstructions in any manner it deems appropriate without liability to Grantee. 2. Access. For the purpose of exercising and enjoying the rights granted herein, the Grantee shall have access to the Property by way of existing public property or right-of-way. 3. Trees and Landscaping. No shrub or tree shall be planted upon the Property or that may encroach upon the Property. Grantee may cut, trim, or remove any shrubs or trees, or portions of shrubs or trees now or hereafter located within or that may overhang upon the Property without liability to Grantee, including without limitation, the obligation to make further payment to Grantor. 4. Grantor's Rights. Grantor shall have the right, subject to the restrictions contained herein, to make use of the Property for any purpose that does not interfere with the City's rights granted to it herein for the purposes granted. 5. Successors and Assigns. This grant and the provisions contained herein shall constitute covenants running with the land and shall be binding upon the Grantor and Grantee, and their heirs, successors and assigns. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. Witness our hands, this the J eA day of 0 52016. Regi Investments, Inc. Rene Cassar President ACKNOWLEDGMENT THE STATE OF § COUNTY OF § This instrument was acknowledged before me on r , 2016, by Rene Cassar for Regi Investments, Inc. as its President. -------- o.�..s.....r....� ED CROPP Notary Public, in add Kr the State of My Notary 10 # 126230434 M commission expires: •'.,r•o, :�.��' Expires August 24, 2019 y P _ _ ATTACHMENT P12W-SSE-1 LEGALEXHIBIT "A" - O BEING a 0.0066 acre tract of land situated in the William Daniel Survey, Abstract No. 378, City of Denton, Denton County, Texas, and being part of a called 22.709 acre tract of land described in Deed to Regi Investments, Inc., as recorded in Document 'No. 94-0005624 of the Real Property Records of Denton County, Texas (R.P.R.D.C.T.), and being more particularly described as follows: BEGINNING at the northeast corner of said 22.709 acre tract, common with the southeast corner of Lot 1 in Block A of Fort Worth Drive Carwash as recorded in Cabinet X, Page 340 of the Plat Records of Denton County, Texas (P.R.D.C.T.), and located in the existing westerly right-of-way line of U.S. Highway 377 (Fort Worth Drive, variable width R.O.W.), from which point a found 1/2 -inch iron rod with Aluminum Disk stamped "TXDOT ROW" bears North 87047'45" West, a distance of 0.49 feet; THENCE South 00°48'13" East, departing the south line of said Lot 1 and along the common easterly line of said 22.709 acre tract and the existing westerly right-of-way line of said U.S. Highway 377, a distance of 57.32 feet to a point for corner; THENCE North 89°23'20" West, departing said common line, a distance of 5.00 feet to a point for corner; THENCE North 00°48'13" West, a distance of 57.36 feet to the intersection with the common north line of said 22.709 acre tract and the south line of said Lot 1, from which point a found 1/2 -inch iron rod at the southwest corner of said Lot 1 bears North 8855'19" West, a distance of 195.30 feet; THENCE South 88055'19" East, along the last stated common line, a distance of 5.00 feet to the POINT OF BEGINNING, and containing 0.0066 acres of land, more or less. NOTES: 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD83 (2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination. Factor of 1.000150630 to scale from grid to surface. 2_ An Easement Exhibit of even date herewith accompanies this Legal Description. See Exhibit "B" Marvin King, R.P.CS. No. 5581 Teague Nall and Perkins 1517 Centre Place Drive, Suite 320 Denton, Texas 76205 (940) 383-4177 T. B. P. L. S. Firm 10011601 Date: June 14, 2016 MARVIN KING •.A«..5581......p... F DEN16023 — P12W-SSE-1 Page 1 of 2 LOT 1, BLOCK FORT WORTH DRIVE CARWASH CAB X, PG. 340 P.R.D.C.T. 10 IRF fCM) LEGEND _ Al CALCULATED POINT O 112 IRON ROD FOUND (UNLESS NOTED OTI-IERWISE) Icrat CONTROLLING MONUMENT GUYVVIRE POWER POLE O CO (SANITARY SEWER CLEAN OUT) ® ICV (IRRIGATION CONTROL VALVE) SSMH (SANITARY SEWER MANHOLE) `♦ UTILITY SIGN (UNLESS NOTED OTHERWISE) © WATER METER EASEMENT BOUNDARY LINE PROPERTY LINE EXISTING RIGHT-OF-WAY — — — — EXISTING EASEMENT —OHE— — —0HE— — — OVERHEAD ELECTRIC /' 'A h EDGE OF ASPHALT N88°55'19"W 195.30' (;-!)a%d %� I U INGRESS -EGRESS ESMT. VOL. 4517, PG. 782 VOL. 4526, PG. 888 D.R.D.C.T. —_ GONG rONC. P12W-SSE-1 0.0066 ACRES 5' CONC. CALLED 22.709 DOC. NO. 94-0005624 R.P.R.D.C.T. MOB/LE HOME STATE OF TEXAS °ECK / CALLED 0. 148 ACRE EASEMENT j / VOL.LL 288, PG 303 CO D.R.D.C.T. O CO JJJ 1 STORAGE ICY —OHE— —� � NE'� ----- 7`-------20 ` 12- IR WITH ALUMINUM DISK STAMPED DOT ROW FND. BEARS N 87'47'45'W - 0.49' ICM) P12W-TCE-1 (BY SEPARATE PLAT) 12• IR WITH ALUMINUM DISK STAMPED -TYDOT ROW' FND. EXPOSED 3' PIPE UNKNOWN 12' IR WITH ALUMINUM DiaK �STAI.IPED •T%DOT RO W FND. O 5����K / ����� ' (BY SEPARATE PIAT) g OZQg3� q G / 7 �'-: 'D �.� REGI INVESTMENTS, INC. G CALLED 22.709 ACRES DOC NO 94-0005624 0 20 40 80 SCALE: 1" = 40' NOTES: 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD83(2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000160630 to scale from grid to surface. 2. This exhibit was prepared without the benefit of a current title commitment. Additional easements, rights-of-way and/or other matters of record may affect this tract that are not shown hereon. 3. A Legal Description of even dale herewith accompanies this Easement Exhibit. See Exhibit "A". DISTANCE L1 teague nal6 & perkins L2 N 89"23'20" W Denton, Texas 76205 t 1517 Centre Place Drive, Suite 320 L3 940.383.4177 ph 940.383.8026 fx np 57.36' ww,tnpincmm S 88'55'19" E T.B.P.L.S. Finn No. 10011601 R.P.R.D.C.T. LAVE TABLE LINE BEARING DISTANCE L1 S 00'4_8'13" E L2 N 89"23'20" W _57.32' 5.00' L3 N 00'48'13" W 57.36' L4 S 88'55'19" E 5.00' HIP BEING 0.0066 ACRE SANITARY SEWER EASEMENT SITUATED IN THE WILLIAM DANIEL SURVEY, ABSTRACT NO. 378 CITY OF DENTON, DENTON COUNTY, TEXAS DEN 16023 SHEET 2 OF 2 ATTACHMENT P12W-SSFe2 EVVI LEGAL DESCRIPTION i, i i. BEING a 0.0218 acre tract of land situated in the William Daniel Survey, Abstract No. 378, City of Denton, Denton County, Texas, and being part of a called 22.709 acre tract of land described in Deed to Regi Investments, Inc., as recorded in Document No. 94-0005624 of the Real Property Records of Denton County, Texas (R.P.R.D.C.T.), and being more particularly described as follows: COMMENCING at the northeast corner of said 22.709 acre tract, common with the southeast corner of Lot 1 in Block A of Fort Worth Drive Carwash as recorded in Cabinet X, Page 340 of the Plat Records of Denton County, Texas (P.R.D.C.T.), and located in the existing westerly right-of-way line of U.S. Highway 377 (Fort Worth Drive, variable width R.O.W.), from which point a found 1/2 -inch iron rod with Aluminum Disk stamped "TXDOT ROW" bears North 87°47'45" West, a distance of 0.49 feet; THENCE South 00°48'13" East, departing the north line of said Lot 1 and along the common easterly line of said 22.709 acre tract and the existing westerly right-of-way line of said U.S. Highway 377, a distance of 156.33 feet to the POINT OF BEGINNING; THENCE South 00°48'13" East, continuing along said common line, a distance of 20.02 feet to a point for corner; THENCE South 86°53'28" West, departing said common line, a distance of 67.61 feet to the intersection with the southeasterly line of a Sanitary Sewer Easement described in Deed to the City of Denton, as recorded in Volume 427, Page 441 of the Deed Records of Denton County, Texas (D.R.D.C.T.); THENCE North 6058'12" East, along the southeasterly line of said Sanitary Sewer Easement, a distance of 45.75 feet to a point for corner; THENCE North 86°53'28" East, departing the southeasterly line of said Sanitary Sewer Easement, a distance of 27.27 feet to the POINT OF BEGINNING, and containing 0.0218 acres of land, more or less. (VOTES 1. Bearings of lines shown hereon, are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD83 (2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1. 000 150630 to scale from grid to surface. 2. An Easement Exhibit of even date herewith accompanies this Legal Description. See Exhibit "B" Marvin King, R.P.L.S. No. 5581 Teague Nall and Perkins 1517 Centre Place Drive, Suite 320 Denton, Texas 76205 (940) 383-4177 T.B.P.L.S. Firm 10011601 Date: June 14, 2016 DEN16023 — P12W--SSE-2 Page 1 of 2 LOT 1, BLOCK A FORT WORTH DRIVE CARWASH CAB X, PG. 340 P.R.D.C.T. .... L N88°55119"W 200.30' 12 IRF (CA) LEGEND CALCULATED POINT O 112 IRON ROD FOUND (UNLESS NOTEDOTHERWISE) tool CONTROLLING MONUMENT E GUYWIRE POWER POLE O CO (SANITARY SEWER CLEAN OUT) ® ICV (IRRIGAI ION CONTROL VALVE) SSMH (SANITARY SEWER MANHOLE) d UTILITY SIGN(UNLESS NOTED OTHERWISE) © WATER METER EASEMENT BOUNDARY LINE PROPERTY LINE EXISTING RIGHT-OF-WAY — — — — — — EXISTING EASEMENT —OHE— — --OHE— — — OVERHEAD ELECTRIC •/. •% •r• EDGE OF ASPHALT D D WOOD FENCE INGRESS -EGRESS ESMT. VOL. 4517, PG. 782 VOL. 4526, PG- 888 I D.R.D.C.T_ Psa �gP�5 COHG. F� CONC. P12W-TCE-1 (BY SEPARATE PLAT) 5'— P12WSSE-1 (BY SEPARATE PLAT) 5' REGI INVESTMENTS, INC. CALLED 22.709 ACRES DOC. NO. 94-0005624 R.P.R.D.C.T. 12" IR WITH ALUMINUM DISK STAMPED-rxDOT ROW FND. MOBILE HOME STATE OF TEXAS DEQ` CALLED0.148ACRE _-,'0" ------� 40' EASEMENT // q VOL. 288, PG 303 CO L""�"^'�r D.R.D.C.T. 0- O , CO� STORAGE ICV / /�� -/ /p BLDG r / Sm'0 C -v - — —OHE— — / / / - ' - ���• \_12' IR WITH ALUMINUM DISK STAMPED-TYDOT ROLV FND. L2/ BEARS N OD'48'1 Y W-S.W 00 SES / ora /� � / ' I 12W -SE -2 & R� A�'� / �/. �1� /' 0.0218 ACRES 0� S�Og130200� �// GPJi✓pOG 0. /.' REGI INVESTMENTS, INC. CALLED 22.709 ACRES 0 20 40 80 .' / DOC. NO. 94-0005624 tnp R.P.R.D.C.T. I LINE TABLE tr2-IR WITH ALUMINUM DISK STAMPED'TrDOT ROW' FND. BEARS N 87`4745' W - 0.49' (GM) —off — Up /- 25Q' 8R1CK / COr.t/MN (TYA) M M LLJ CO a-. Jt LL - c) Q) aE CCO W ® `J Ulm CE ftwoL77 Q SCALE! 1" = 40' Exhibit "A" DISTANCE °°0F••NOTES:S`1. Bearings of lines shown hereon are referenced to Grid North of the Texas CoordinateSystem Zone 4202: NAD63(2011) 20.02' (North Central EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real ..... .. KING Time Kinematic (RTK) methods. The distances shown hereon represent surface values •••••••••••••••;••• ((YMARVIN utilizing an Average Combination Factor of 1.000150630 to scalefrom grid to surface. �j�5$j2. This exhibit was prepared without the benefit of a current title commitment. AdditionalE-3 1.«=dpeasements, `"• rights-of-way and/or other matters of record may affect this tract that are not �'� shown hereon. S U Rv 3, A Legal Description of even date herewith accompanies this Easement Exhibit. See Exhibit "A" DISTANCE Ll League nail .& perkins 20.02' L2 S 86'53'28" W 1517 Centre Ptoce Drive, Suite 320 ". Denton, Texas 76205 t 45.75' 940.383.4177 ph 940.383.8026 fx n N 8653'28" E w.inpin—rn ... T.B.P.L.S. Finn No. ID011601 Fort Worth Dn- LINE BEARING DISTANCE Ll S 00'48'13" E 20.02' L2 S 86'53'28" W 67.61' L3 N 60'58'12" E 45.75' L4 N 8653'28" E 27.27' BEING 0.0218 ACRE SANITARY SEWER EASEMENT SITUATED IN THE WILLIAM DANIEL SURVEY, ABSTRACT NO. 378 CITY OF DENTON, DENTON COUNTY, TEXAS SHEET 2 OF 2 ATTACHMENT PI 2W -SSE -3 LEGALEXHIBIT "A" DESCRIPTION SANITARY; BEING a 0.1318 acre tract of land situated in the William Daniel Survey, Abstract No. 378, City of Denton, Denton County, Texas, and being part of a called 22.709 acre tract of land described in Deed to Regi Investments, Inc., as recorded in Document No. 94- 0005624 of the Real Property Records of Denton County, Texas (R.P.R.D.C.T.), and being more particularly described as follows: COMMENCING at a 1/2 -inch iron rod found at the most westerly southwest corner of said 22.709 acre tract, common with the northwest corner of a called 1.730 acre tract of land described in Deed to Regi Investments, Inc., as recorded in Volume 1164, Page 794 of the Deed Records of Denton County, Texas (D.R.D.C.T.), and located in the existing easterly right-of-way line of James Street (variable width R.O.W.); THENCE North 00°35'25" West, departing the north line of said 1.730 acre tract and along the common westerly line of said 22.709 acre tract and the existing easterly right- of-way line of said James Street, a distance of 419.00 feet to the POINT OF BEGINNING; THENCE North 00°35'25" West, continuing along said common line, a distance of 20.00 feet to a point for corner; THENCE North 88°17'58" East, departing said common line, a distance of 83.88 feet to a point for corner; THENCE North 45°19'34" East, a distance of 159.30 feet to the intersection with the southeasterly line of a Sanitary Sewer Easement described in Deed to the City of Denton, as recorded in Volume 427, Page 441 (D.R.D.C.T.); THENCE North 60°58'12" East, along the southeasterly line of said Sanitary Sewer Easement, a distance of 74.17 feet to a point for corner; THENCE South 45°19'34" West, departing the southeasterly line of said Sanitary Sewer Easement, a distance of 238.59 feet to a point for corner; THENCE South 88°17'58" West, a distance of 92.14 feet to the POINT OF BEGINNING, and containing 0.1318 acres of land, more or less. DEN16023 — P12W-SSE-3 Page 1 of 3 NOTES: Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202. NAD83 (2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1. 000 150630 to scale from grid to surface. 2. An Easement Exhibit of even date herewith accompanies this Legal Description. See Exhibit "B" Marvin King, R.P.L'.S. No. 5581 Teague Nall and Perkins 1517 Centre Place Drive, Suite 320 Denton, Texas 76205 (940) 383-4177 T.S.P.L.S. Firm 10011601 Date: June 14, 2016 1,�ARVIN KING a<.,<5581 �� suft DEIV16023 — P12w--SSE-3 Page 2 of 3 112' IRF' (C" LL. 0 LLI a I a a ¢ Q SMH BURIED'GTE NOTES: REGI INVESTMENTS, INC. CALLED 22.709 ACRES DOC. NO. 94-0005624 R.P.R.D.C.T.be dA NS ©115G C. E/ oFo R�a�� o -11 S A2�'PG�./ /\ E SHE/ / \ /f SSMH \ POINT OF BEGINNING N to tnp POINT F COMMENCING 12 IRF fel REGI INVESTMENTS, INC. 0 20 40 80 CALLED 1.730 ACRES VOL. 1164, PG. 794 D.R.D.C.T. SCALE: lu = 40' 1. Bearings of lines shown hefeon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD83(2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2. This exhibit was prepared without the benefit of a current title commitment Additional easements, rights-of-way and/or other matters of record may affect this tract that are not shown hereon. 3. A Legal Description of even date herewith accompanies this Easement Exhibit. See Exhibit "A' N 00'35'25" W a, ' .•''c feaque nail & perkons 1517 Centre Place Drive, Suite 320 940.383.4177 ph 940.383.8026 fx tnp Denton, Toxas 7620S N 88'17'58" E www.tnpinc.com L3 T.O.P.L.S. Firm No. 10011601 OF.. TF ,A,,Q..' O IS E,fppF...f- r so 6. MARVIN' KING . u, ........................ L LINE TABLE LINE BEARING DISTANCE L1 N 00'35'25" W 20.00' L2 N 88'17'58" E 83.88' L3 N 45'19'34" E 159.30' L4 N 60'58'12" E 74.17' L5 S 45'19'34" W 238.59' L6 S 88'17'58" W 92.14' LEGEND D CALCULATED POINT O 112 IRON ROD FOUND (UNLESS NOTED OTHERWISE) rcw CONTROLLING MONUMENT F GUYWIRE POWER POLE O 1 CO (SANITARY SEWER CLEAN OUT) ® ICV (IRRIGATION CONTROL VALVE) SSMH (SANITARY SEWER MANHOLE) UTILITY SIGN (UNLESS NOTED OTHERWISE) © WATER METER EASEMENT BOUNDARY LINE PROPERTY LINE EXISTING RIGHT-OF-WAY — — — — — — EXISTING EASEMENT OVERHEAD ELECTRIC •% •% •�• EDGE OF ASPHALT EXHIBIT "B" UE! BEING 0.1318 ACRE SANITARY SEWER EASEMENT SITUATED IN THE WILLIAM DANIEL SURVEY, ABSTRACT NO. 378 CITY OF DENTON, DENTON COUNTY, TEXAS EN SHEET 3 OF ATTACHMENT 3 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. TEMPORARY CONSTRUCTION EASEMENT THE STATE OF TEXAS, § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Regi Investments, Inc., a Texas Corporation ("Grantor"), of Denton County, whose mailing address is 2212 Fort Worth Drive, # 163, Denton, TX 76205-7678 in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ("Grantee"), receipt of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ("Grantee") a temporary construction easement being a 0.0066 acre tract in, along, upon, under, over and across the following described property (the "Property"), owned by Grantor, and situated in Denton County, Texas, located in the William Daniels Survey, Abstract Number 378 to wit: PROPERTY AREA DESCRIBED IN ATTACHMENT 3 PAGE I AND DEPICTED IN ATTACHMENT 3 PAGE 2 BOTH ATTACHED HERETO AND MADE A PART HEREOF It is agreed that the said City of Denton, Texas, in consideration of the benefits above set out, will remove from the Property above described, such fences, signage, buildings and other obstructions as may now be found upon said Property, for the purpose of construction activities, grading activities and access in, along, upon, under and across said Property. It is specifically stipulated by Grantor that the scope of the access, construction and grading activities shall include the clearing and removal of vegetation and trees that exist within the Property. The City of Denton, its agents, employees, contractors, workmen, and representatives shall have the right of ingress, egress and regress in, along, upon, under and across said Property for the purpose of construction activities or any part thereof. 1 The term of this grant shall expire on the earlier to occur of (i) two (2) years from the date of the "Contractor Notice to Proceed Letter" for the Fort Worth Drive Utility Relocations project; and (ii) June 30, 2019. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. Witness its hand, this the day of , 2016. Regi Investments, Inc., a Texas corporation Rene Cassar, President ACKNOWLEDGMENT e THE STATE OF COUNTY OF Af y d " q This instrument was acknowledged before me on o h , 2016, by Rene Cassar for Regi Investments, Inc., as its President. i'*: ED CROPP ir-=•'" My Notary ID#126230434 Notary Public, in a fo the Stat of -. Expires August 24, 2019 My commission expires: 2 EXHIBIT "A" LEGAL " • TEMPORARY CONSTRUCTION BEING a 0.0066 acre tract of land situated in the William Daniel Survey, Abstract No. 378, City of Denton, Denton County, Texas, and being part of a called 22.709 acre tract of land described in Deed to Regi Investments, Inc., as recorded in Document No. 94-0005624 of the Real Property Records of Denton County, Texas (R.P.R.D.C.T.), and being more particularly described as follows.- COMMENCING ollows: COMMENCING at the northeast corner of said 22.709 acre tract, common with the southeast corner of Lot 1 in Block A of Fort Worth Drive Carwash as recorded in Cabinet X, Page 340 of the Plat Records of Denton County, Texas (P.R.D.C.T.), and located in the existing westerly right-of-way line of U.S. Highway 377 (Fort Worth Drive, variable width R.O.W.), from which point a found 1/2 -inch iron rod with Aluminum Disk stamped "TXDOT ROW" bears North 87047'45" West, a distance of 0.49 feet; THENCE North 88055'19" West, departing the existing westerly right-of-way line of said U.S. Highway 377 and along the common north line of said 22.709 acre tract and the south line of said Lot 1, a distance of 5.00 feet to the POINT OF BEGINNING; THENCE South 00°48'13" East, departing said common line, a distance of 57.36 feet to a point for corner; THENCE North 89°23'20" West, a distance of 5.00 feet to a point for corner; THENCE North 00°48'13" West, a distance of 57.40 feet to the intersection with the common north line of said 22.709 acre tract and the south line of said Lot 1, from which point a found 1/2 -inch iron rod at the southwest corner of said Lot 1 bears North 88055'19" West, a distance of 190.30 feet; THENCE South 88°55'19" East, along the last stated common line, a distance of 5.00 feet to the POINT OF BEGINNING, and containing 0.0066 acres of land, more or less. NOTES: 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Lone 4202: NAD83 (2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2. An Easement Exhibit of even date herewith accompanies this Legal Description. See Exhibit `B" Marvin King, R.P L.S No. 5581 Teague Nall and Perkins 1517 Centre Place Drive, Suite 320 Denton, Texas 76205 (940) 383-4177 T.B_P.L.S. Firm 10011601 Date: June 14, 2016 OF rZ'a��t57�RF'O;f' a 5581 �fiS U fty� DEN16023 — P12W-TCE-1 Page 1 of 2 Ir.r IRF (CM) INGRESS -EGRESS ESMT. VOL. 4517, PG. 782 LOT 1, BLOCK A VOL. 4526, PG. 888 FORT WORTH DRIVE CARWASH D.R.D.i CAB X, PG. 340 P.R.D.C.T. e� p P GT" gPHs I N 88°55'19" W 190.30' CONC. CONC. P ,gA 2 .+ CE -11 0.0066 ACRES l�J o P12WSSE-1 (BY SEPARATE PLAT) P c�J LEGEND Q CALCULATED POINT O 112 IRON ROD FOUND (UNLESS NOTED OTHERWISE- )—= -1 CONTROLLING MONUMENT F GUYWIRE POWER POLE O CO (SANITARY SEWER CLEAN OUT) ® ICV (IRRIGATION CONTROL VALVE) SSMH (SANITARY SEWER MANHOLE) a UTILITY SIGN (UNLESS NOTED OTHERWISE) ® WATER METER EASEMENT BOUNDARY LINE PROPERTY LINE EXISTING RIGHT-OF-WAY EXISTING EASEMENT --OHE— — —OHE— — — OVERHEAD ELECTRIC '1 rh '/' EDGE OF ASPHALT CALLED 1' ACRES DOC. NO 94-0005624 R.P.R.D.C.T. POINT OF BEGINNING POINT OF ,4 COMMENCING 12' IR WITH ALUMINUM DISK STAMPED-TxDOTROW FND. BEARS N 87'47'46'W - 0.49' _1 ;; (CM) N 88°55'19"W 5.00' C(WC7—/--"0') MOBILE iiOME WT)OD STATE OF TEXAS DECK i CALLED 0. 148 ACRE _ _ - 40'E4SEMENT +' �/ sroB�aq-� VOL. 288, PG 303 ' Co D.R. D. C.T. p 1 / CO /' i STYJRAGE i ICV / i ii/•/ / 1 'uOBi,� BLDG 1 i i �l 1 – CV E— — —OHE— — i �� ----- -'`--'--' 20'- 12' IR WITH ALUMINUM DISK STAMPED TxDOT ROW FND. liEKPO&ED 3' P/PE UNKNOWN 12- IR WITH ALUMINUM DISK ',-1/2- IR ROW FND. P12W-SSE-2 00 k / ' (BY SEPARATE PLAT) Op pO 0- �' REGI INVESTMENTS, INC. CALLED 22.709 ACRES DOC. NO. 94-0005624 0 20 40 80 R.P.R.D.C.T. SCALE: 1" = 40' NOTES: 1. Bearings of lines shown hereon are referenced to Grid North of the Texas Coordinate System (North Central Zone 4202: NAD83(2011) EPOCH 2010) as derived locally from Western Data Systems Continuously Operating Reference Stations (CORS) via Real Time Kinematic (RTK) methods. The distances shown hereon represent surface values utilizing an Average Combination Factor of 1.000150630 to scale from grid to surface. 2. This exhibit was prepared without the benefit of a current tit'e commitment. Additional easements, rights-of-rvay and/or other matters of record may affect this tract that are not shown hereon. 3. A Legal Description of even date herewith accompanies this Easement Exhibit See Exhibit "A". S 00'48'13" E 57.36' -, N 89'23'20" W teague nail parkins 1517 Centre Place Drive, Suite 320 Denton, Texas 76205 940.383.4177 ph 940.383.8026 Fx L3 N 00'48'13" W www.tnpi—cam L4 S 88'55'19" E T.B.P.L.S. Flan No. 10011601 °0 F °° Pe°LISTSR; tnp LINE TABLE LINE BEARING DISTANCE Ll S 00'48'13" E 57.36' L2 N 89'23'20" W 5.00' L3 N 00'48'13" W 57.40' L4 S 88'55'19" E 5.00' _.JAW t IIS 1 III: BEING 0.0066 ACRE TEMPORARY CONSTRUCTION EASEMENT SITUATED IN THE WILLIAM DANIEL SURVEY, ABSTRACT NO. 378 CITY OF DENTON, DENTON COUNTY, TEXAS DEN 16023 SHEET 2 OF 2 City of Denton `'`Ur�"`°' 2017-2021 CIP Improvements Projects Project Title: Fort Worth Drive Utility Relocations Description: Replace and relocate existing sanitary sewer lines from 35 to south of Moss Creek Road. Business Unit. 640200 -Wastewater- Collection Project Type: Replacement Project Scope: Multiple Year Project Category Code: 038 -STATE HIGHWAY RELOCATIONS F.Y. Cost Code Cost Type ` Funding Source Comment Amount 2017 40100 -CONSTRUCTION 1365 -Other Revenue $1,750,000 2017 47710 -INSPECTION 1365 -Other Revenue $60,000 2017 Total: $1,810,000 Project Total: $1,810,000 Comments: Purpose: TXDOT widening of State Highway 377 requires relocation of sewer lines to new location at City's expense. 09/27/2016 Page 329 of 412 Exhibit 4 to AIS City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1514, Version: 1 DEPARTMENT: CM/ ACM: Date: Transportation John Cabrales, Jr. December 6, 2016 Legislation Text Agenda Information Sheet SUBJECT Consider approval of a resolution of the City Council of the City of Denton, Texas, appointing a Primary and Alternate Member as official voting representatives to the North Central Texas Council of Governments Regional Transportation Council (Hereinafter "RTC"); and providing an effective date. The Mobility Committee recommends approval (3-0). BACKGROUND In 2014, the North Central Texas Council of Governments (NCTCOG) Regional Transportation Council (RTC) approved a revision to its Bylaws and Operating Procedures to reflect changes in membership based on the NCTCOG's most recent population and employment figures. The revision included a provision to cluster the City of Denton with several Denton County municipalities with populations greater than 5,000 to meet an optimal population threshold of 208,000 per each RTC seat. The Cities of Denton, Corinth, Lake Dallas, and Sanger were grouped in the same cluster. The 2008 RTC Bylaws revision allows for each seat on the RTC to have an Alternate Member in addition to the Primary Member. The Alternate Member enjoys voting authority and may represent the entity or cluster cities, should the Primary Member not be able to attend a particular meeting. The City of Denton maintains metropolitan planning organization status due to the population threshold established in the 1990 Census, the City of Denton has the authority to appoint representatives to the RTC. Councilman Kevin Roden was appointed by the City Council on May 6, 2014, Resolution 2014-014, to represent Denton and cluster cities as the Primary Member. On July 6, 2016, the Denton City Council appointed Council Member Sara Bagheri as the RTC Alternate. Prior to the October RTC Meeting, Mayor Pro Tem Roden notified staff that his business schedule would not permit regular attendance to monthly RTC meetings. He suggested that Council Member Bagheri step in as the Alternate and that staff initiate the process to replace him as the Primary RTC Representative for the City of Denton. Council Member Bagheri has attended three RTC meetings since her appointment as Alternate, one as an orientation and two in her official capacity as the Alternate representing Denton on behalf of Mayor Pro Tem Roden. Council Member Bagheri has also participated in several staff initiated transportation infrastructure meetings relating to priority projects, funding allocations and state/regional planning initiatives. PRIOR ACTION/REVIEW: City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1514, Version: 1 On November 8, 2016, the Mobility Committee recommended (3-0) that Council Member Bagheri be considered by City Council to serve as the City of Denton RTC Representative and that Mayor Pro Tem Roden be appointed as the Alternate. RECOMMENDATION Appoint Council Member Bagheri to serve as the City of Denton RTC Representative and appoint Mayor Pro Tem Roden to serve as the Alternate. SCHEDULE RTC representatives and Alternates serve a two-year term beginning in June of even numbered years. Primary and Alternate Members appointed at this time will serve until the end of May 2018. The next RTC meeting is scheduled for December 8, 2016. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.6 Collaborate with local, regional, state, and federal partners EXHIBITS 1. Resolution 2014-014 2. City of Denton Certificate - Board and Commission Appointees dated July 6, 2016 3. Mobility Committee Minutes 4. Resolution Respectfully submitted: Mark Nelson Transportation Director City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, EXHIBIT 1 RESOLUTION NO. 82014-014 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, APPOINTING A PRIMARY MEMBER AS AN OFFICIAL VOTING REPRESENTATIVE TO THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS REGIONAL TRANSPORTATION COUNCIL ("RTC"); AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the North Central Texas Council of Governments Regional Transportation Council ("RTC") is the independent transportation policy body of the federally -mandated Dallas - Fort Worth Metropolitan Planning Organization and is comprised of 43 members: 36 local elected or appointed officials representing cities and counties, and representatives from each of the area's seven transportation providers; and WHEREAS, the RTC is responsible for overseeing the metropolitan planning process including primary activities such as providing guidance regarding the development of multimodal transportation plans and programs, programming federal and State funds for the implementation of transportation improvements, selecting specific federally funded projects and programs, assuring the coordination of services among transportation providers, and ensuring compliance with federal and State laws and regulations pertaining to metropolitan transportation and air quality planning; and WHEREAS, in accordance with the Bylaws and Operating Procedures ("Bylaws") of the RTC, the local elected official representing the Cities of Denton, Sanger, Corinth, and Lake Dallas on the RTC shall be selected using a weighted vote of the maximum population or employment of the cities represented; and WHEREAS, the City of Denton, pursuant to the Bylaws, possesses the authority to appoint the representative on behalf of the above-described group of cities to the RTC; and WHEREAS, the City Council deems it be in the public interest to appoint its locally elected official, Councilman Kevin Roden, as the primary member to the RTC; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The findings and recitations contained in the preamble of this Resolution are incorporated herein by reference. SECTION 2. Its locally elected official, Councilman Kevin Roden, is hereby appointed as the primary member of the City of Denton, Texas to the RTC. SECTION 3. The City Manager, or his designee, is hereby authorized to send a certified copy of this Resolution to appropriate officials of the RTC. SECTION 4. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ATTEST: EXHIBIT 1 JENNIFER WALTERS, CITY SECRETARY BY: y - " ' '-Dr APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 2 of 2 1 .> EXHIBIT 2 I, the undersigned City Secretary of the City of Denton, Texas, (the "City") DO HEREBY CERTIFY that according to the records of the City of which I am a custodian, that: the attached is a true and accurate copy of the 2016-2017 City of Denton Council Committee Assignments as approved by the Council on June 21, 2016. TO CERTIFY WHICH, witness my official signature and the seal of said City, this the 5th day of July, 2016. JD` ARY Cl ` OTON, TEXAS EXHIBIT 2 COUNCIL COMMITTEE ASSIGNMENTS 2016-2017 COMMITTEE MEMBERS Agenda Committee Watts Convention and Visitor Bureau Roden Airport Committee Wazny Hawkins Dallas Regional Mobility Coalition Watts Audit/Finance Committee Hawkins North Texas Commission Bagheri Regional Transportation Council Watts Committee on Citizen Engagement Gregory Texas Municipal Power Agency Roden Briggs Committee on the Environment Briggs Gregory Hawkins Council Appointee Performance Review Roden Committee Gregory Watts Ethics Committee Briggs Wazny Roden Hotel Occupancy Tax Committee Hawkins Gregory Watts Mobility Committee Gregory Briggs Roden EXTERNAL MEMBERS Community Justice Council Roden Convention and Visitor Bureau Bagheri Gregory Hawkins Dallas Regional Mobility Coalition Roden Lake Ray Roberts P&Z Briggs North Texas Commission Watts Regional Transportation Council Roden Bagheri (Alternate) Texas Municipal Power Agency Watts EXHIBIT 2 AD HOC MEMBERS Council Community Event Center Committee Roden Gregory BaQheri Council Historic Landmark Committee Committee to be dissolved Development Code Review Committee Briggs Bagheri Waznv BOARD MEMBERS Economic Development Partnership Board Johnson Watts Downtown Denton TIF Reinvestment Zone Roden No. 1 Board Watts Tax Increment Reinvestment Zone No. 2 Johnson Board Watts 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 EXHIBIT 3 DRAFT MINUTES— Item 1 B CITY COUNCIL MOBILITY COMMITTEE November 30, 2016 After determining that a quorum of the Mobility Committee of the Denton City Council was present, the Mobility Committee thereafter convened into an Open Meeting on Tuesday, November 30, 2016 at 10:45 a.m. in the City Hall Conference Room 215 E. McKinney, Denton, Texas. Present: Council Member Dalton Gregory, Council Member Kevin Roden and Council Member Keely Briggs Also Present: Jon Fortune, ACM; Mark Nelson, Director of Transportation; John Davis, Director of Engineering Services; Pritam Deshmukh, Traffic Engineer; Julie Anderson, Bike Coordinator Pedestrian Coordinator; John Polster, ITS; and Kim Mankin, Administrative Supervisor 1. REGULAR MEETING: B. MC16-041 - Consider a nomination and recommendation to the City Council of the City of Denton, Texas, regarding the appointment of an official voting representative to the Regional Transportation Council of the North Central Texas Council of Governments. Mark Nelson talked about this item. Staff recommends appointment of City Council Member Bagheri from alternate to the primary representative due to scheduling conflicts with the current RTC representative, Council Member Roden. Gregory asked if there needs to be an alternate appointed. Nelson answered that Council Member Roden may be able to be the alternate. Roden confirmed. Council Member Gregory motioned to recommend Council Member Bagheri as representative and Council Member Roden as alternate, Council Member Briggs seconded the motion, vote 3-0. The meeting was adjourned by consensus at 11:36 a.m. RESOLUTION NO. 2016 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, APPOINTING A PRIMARY AND ALTERNATE MEMBER AS OFFICIAL VOTING REPRESENTATIVES TO THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS REGIONAL TRANSPORTATION COUNCIL (HEREINAFTER "RTC"); AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the North Central "Texas Council of Governments Regional Transportation Council (hereinafter "RTC") is the independent transportation policy body of the federally - mandated Dallas -Fort Worth Metropolitan Planning Organization and is comprised of 44 members, 37 local elected or appointed officials representing cities and counties, and representatives from each of the area's seven transportation providers; and WHEREAS, the RTC is responsible for overseeing the metropolitan planning process including primary activities such as providing guidance regarding the development of multimodal transportation plans and programs, programming federal and State funds for the implementation of transportation improvements, selecting specific federally funded projects and programs, assuring the coordination of services among transportation providers, and ensuring compliance with federal and State laws and regulations pertaining to metropolitan transportation and air quality planning; and WHEREAS, in accordance with the Bylaws and Operating Procedures ("Bylaws") of the RTC, the local elected official representing the Cities of Denton, Sanger, Corinth, and Lake Dallas on the RTC shall be selected using a weighted vote of the maximum population or employment of the cities represented; and WHEREAS, the City of Denton, pursuant to the Bylaws, possesses the authority to appoint the representative and an alternate on behalf of the above-described group of cities to the RTC; and WHEREAS, the City Council has appointed locally elected official, Councilman Kevin Roden, as the primary member to the RTC; and WHEREAS, the City Council has appointed locally elected official, Council Member Bagheri, as the alternate member to the RTC; and WHEREAS, the City Council deems it be in the public interest to appoint its locally elected official, Council Member Sara Bagheri, as the primary member to the RTC; and WHEREAS, the City Council deems it be in the public interest to appoint its locally elected official, Councilman Kevin Roden, alternate member to the RTC; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The findings and recitations contained in the preamble of this Resolution are incorporated herein by reference. SECTION 2. Its locally elected official, Council Member Sara Bagheri, is hereby appointed as the primary member of the City of Denton, Texas to the RTC. SECTION 3. Its locally elected official, Councilman Kevin Roden, is hereby appointed as the alternate member of the City of Denton, Texas to the RTC. SECTION 4. The City Manager, or his designee, is hereby authorized to send a certified copy of this Resolution to appropriate officials of the RTC. SECTION 5. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 41, —:A( CHRIS WATTS, MAYOR Page 2 of 2 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON Legislation Text File #: ID 16-1515, Version: 1 DEPARTMENT: CM/ ACM: Date: SUBJECT Agenda Information Sheet Transportation John Cabrales, Jr. December 6, 2016 Consider adoption of an ordinance of the City of Denton, Texas, amending the provisions of Chapter 18 relating to Motor Vehicles and Traffic by adding Section 18-91.50 to prohibit stopping or parking of vehicles in certain places: providing a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance: and providing for an effective date. The Traffic Safety Commission recommends approval (5-0). BACKGROUND At the September joint Traffic Safety Commission (TSC) and Mobility Committee meeting, staff recommended a minor change to the City Code intended to enhance traffic safety in the community by improving line of sight at intersections. Commissioners and Council Members were briefed on the concern with sight distance or line of sight issues often related to vehicles parked too close to the intersection or a driveway. Residents in neighborhoods adjacent to the University of North Texas (UNT) and TSC Commissioners have registered concerns with staff and submitted requests to improve line of sight at intersections in these areas in an effort to enhance safety of motorist, cyclist and pedestrians. The staff presentation at the September meeting included photo documentation of on -street parking encroachment at various intersections. At the September meeting, staff stated that under the current City of Denton Municipal Code, parking restrictions can be enforced along a public street under certain conditions. The section from the code is attached as Exhibit 3 (Sec. 18-91.50). Per current City Code, parking of vehicles is restricted in front of driveways or within five (5) feet of a driveway. Additionally, at intersections parking is restricted within 20 feet of a crosswalk at an intersection. It should be noted that the crosswalk is not defined and can be a `marked' or `unmarked' crosswalk. Per Texas Transportation Code 541.302 (2) (Exhibit 2), Crosswalks are defined as: (A) the portion of a roadway, including an intersection, designated as a pedestrian crossing by surface markings, including lines; or (B) the portion of a roadway at an intersection that is within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the traversable roadway. Based on the current City Code, parking restrictions can be enforced near driveways and intersections without installation of additional signs and markings. It is important to note the current code does not include the City of Denton Page 1 of 3 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1515, Version: 1 definition of "Crosswalk" and does not address some specific roadway conditions that exist, such as the absence of a sidewalk or curb. As such, staff recommended an update to the current code to add the following description under Section 18-91.50. (b) (Italicized and underlined text). (b) An operator may not, except momentarily to pick up or discharge a passenger, stop or park an occupied or unoccupied vehicle: (1) In front of a public or private driveway or within five (5) feet of a driveway; (2) Within fifteen (15) feet of a fire hydrant; (3) Within twenty (20) feet of a crosswalk at an intersection, where crosswalk means; (A) the portion of a roadway, including an intersection, designated as a pedestrian crossing by surface markings, including lines, or (e) the portion of a roadway at an intersection that is within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the traversable roadway. (4) Within twenty (20) feet of the extension of the curbs or, in the absence of curbs from the edges of the traversable area of the adjacent cross -street; (5) Within thirty (30) feet on the approach to a flashing signal, stop sign, yield sign, or traffic -control signal located at the side of a roadway; (6) Within twenty (20) feet of the driveway entrance to a fire station and on the side of a street opposite the entrance to a fire station within seventy-five (75) feet of the entrance, if the entrance is properly marked with a sign; or (7) Where an official sign prohibits stopping or parking. The existing concerns at the intersections regarding line of sight and sight distance can be improved with the enforcement of parking restrictions per existing code and through the adoption and subsequent enforcement of the proposed changes to the code. Addressing the parking restriction issue at intersections and driveways through the enforcement of the code will result in a more uniform approach throughout the City, thus avoiding a biased, location -specific and/or complaint -based approach. Additionally, this revision will enhance traffic and pedestrian safety. RECOMMENDATIONS The Traffic Safety Commission recommends that the City Council consider the proposal to clarify the municipal code related to authority granted to the Traffic Engineer to improve traffic safety by amending Section 18-91.50 of the City Code as outlined above. OPTIONS 1. Clarify municipal code related to authority granted to the Traffic Engineer to safeguard traffic safety as by amending Ordinance 2011-113. 2. Provide staff additional direction and/or language regarding authority granted to the Traffic Engineer in the City Code. 3. Take no action PRIOR ACTION/REVIEW (Council, Boards, Commissions) City of Denton Page 2 of 3 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1515, Version: 1 November 7, 2016 - Traffic Safety Commission recommended approval of the proposed ordinance . September 12, 2016 - The proposal to make changes to the City Code (Sec. 18-91.50) was discussed as part of the Joint TSC and Mobility Committee Meeting. FISCAL INFORMATION Undetermined at this point. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Safe, Liveable & Family -Friendly Community Related Goal: 4.1 Enhance public safety in the community EXHIBITS 1. Ordinance 2011-113 - Municipal Code Parking 2. Excerpt - Texas Transportation Code 541.302 (2) 3. Proposed revisions to Ordinance 2011-113 4. Draft Minutes Traffic Safety Commission, November 7, 2016 5. Draft Ordinance Respectfully submitted: Mark Nelson Transportation Director City of Denton Page 3 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, \\codad\departments\legal\our documents\ordinances\11\parking enforcement amendment-finalldoe EXHIBIT 1 ORDINANCE NO. 2011-113 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING THE PROVISIONS OF CHAPTER 18 RELATING TO MOTOR VEHICLES AND TRAFFIC BY RE- NUMBERING SECTION 18-95 "STOP INTERSECTIONS" TO SECTION 18-3.1; BY ADDING SECTION 18-91.50 TO PROHIBIT STOPPING OR PARKING OF VEHICLES IN CERTAIN PLACES; BY ADDING SECTION 18-91.51 ESTABLISHING ADDITIONAL PARKING REGULATIONS; BY AMENDING SECTION 18-143 TO CHANGE THE MINIMUM FINES ESTABLISHED FOR CERTAIN PARKING OFFENSES; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Chapter 18 of the Code of Ordinances of the City ("Motor Vehicles and Traffic") be and the same is hereby amended by re -numbering Section 18-95 "Stop Intersections." Section 18-95 shall be re -numbered to Section 18-3.1 and shall read as follows: Sec. 18-3.1. Stop Intersections. The traffic engineer may designate any street intersection as a stop intersection and designate the streets upon which vehicles shall stop before entering such intersections. Whenever any intersection has been so designated, the traffic engineer shall cause the same to be identified by the erection of stop signs indicating which vehicles approaching the intersection shall stop, and it shall be the duty of the driver of any vehicle approaching such a sign to bring such vehicle to a complete stop at such sign or at a clearly marked stop line before entering the intersection, except when directed to proceed by a police officer or a traffic -control signal. After having so stopped, such driver shall yield 'the right-of-way to other vehicles which have entered the intersection or which are approaching so closely as to constitute an immediate hazard. Such driver, after having so yielded, may proceed, and the drivers of all other vehicles approaching on the intersecting street shall yield the right-of-way to the vehicle so proceeding into or across the intersection. SECTION 2. Chapter 18 of the Code of Ordinances of the City ("Motor Vehicles and Traffic") be and the same is hereby amended by adding Section 18-91.5 "Stopping or parking prohibited in certain places." Section 18-91.5 shall read as follows: Sec. 18-91.50. Stopping or parking prohibited in certain places. (a) An operator may not stop or park a vehicle: (1) on the roadway side of a vehicle stopped or parked at the edge or curb of a street; (2) on a sidewalk; EXHIBIT 1 (3) in an intersection; (4) on a crosswalk; (5) between a safety zone and the adjacent curb or within 30 feet of a place on the curb immediately opposite the ends of a safety zone, unless the governing body of a municipality designates a different length by signs or markings; (6) alongside or opposite a street excavation or obstruction if stopping or parking the vehicle would obstruct traffic; (7) on a bridge or other elevated structure on a highway or in a highway tunnel; (8) on a railroad track; (9) where an official sign prohibits stopping; or (10) within five (5) feet of a public or private driveway or blocking any portion of a public or private driveway or access to such driveway. (b) An operator may not, except momentarily to pick up or discharge a passenger, stop or park an occupied or unoccupied vehicle: (1) in front of a public or private driveway or within 5 feet of a driveway; (2) within 15 feet of a fire hydrant; (3) within 20 feet of a crosswalk at an intersection; (4) within 30 feet on the approach to a flashing signal, stop sign, yield sign, or traffic -control signal located at the side of a roadway; (5) within 20 feet of the driveway entrance to a fire station and on the side of a street opposite the entrance to a fire station within 75 feet of the entrance, if the entrance is properly marked with a sign; or (6) where an official sign prohibits stopping or parking. (c) An operator may not, except temporarily to load or unload merchandise or passengers, park an occupied or unoccupied vehicle: (1) within 50 feet of the nearest rail of a railroad crossing; or (2) where an official sign prohibits parking. (d) A person may stop or park a bicycle on a sidewalk if the bicycle does not impede the normal and reasonable movement of pedestrian or other traffic on the sidewalk. (e) A person may not stop or park a vehicle on a public right-of-way or a state or city easement for the purpose displaying the vehicle for sale. SECTION 3. Chapter 18 of the Code of Ordinances of the City ("Motor Vehicles and Traffic") be and the same is hereby amended by adding Section 18-91.5 "Stopping or parking prohibited in certain places." Section 18-91.5 shall read as follows: Page 2 of 8 EXHIBIT 1 Sec. 18-91.51. Additional parking regulations. (a) An operator who stops or parks on a two-way roadway shall do so with the right- hand wheels of the vehicle parallel to and within 18 inches of the right-hand curb or edge of the roadway. (b) An operator who stops or parks on a one-way roadway shall stop or park the vehicle parallel to the curb or edge of the roadway in the direction of authorized traffic movement with the right-hand wheels within 18 inches of the right-hand curb or edge of the roadway or the left-hand wheels within 18 inches of the left-hand curb or edge of the roadway. This subsection does not apply where a local ordinance otherwise regulates stopping or parking on the one-way roadway. (c) Subsections (a) and (b) shall not apply if the City has established angled parking spaces on the roadway. SECTION 4. Chapter 18 of the Code of Ordinances of the City ("Motor Vehicles and Traffic") be and the same is hereby amended by adding the words "truck, truck -tractor, pull trailer, semi -trailer" to subsection (a) of Section 18-92.1 "Parking Nuisances" and by adding subsection (c) to Section 18-92.1. Section 18-92.1 shall read as follows: Sec. 18-92.1 Parking Nuisances. (a) It shall be unlawful for a person to park or store or allow another to park or store a recreational vehicle, travel trailer, boat or boat trailer, tow truck, truck, truck -tractor, pull trailer, semi -trailer or any vehicle other than a passenger car on any public right-of-way in any residential zoned district. (b) No person shall park any vehicle upon the street in any manner as to obstruct the loading or unloading of any solid waste container. (c) It shall be a defense to prosecution under subsection (a) if the vehicle was parked on the public -right-of-way in compliance with Section 18-52 of this Code of Ordinances. SECTION 5. Chapter 18 of the Code of Ordinances of the City ("Motor Vehicles and Traffic") be and the same is hereby amended by amending Section 18-98 "Overnight Parking" to add a requirement that only vehicles lawfully registered, inspected and insured may be parked on city streets. Section 18-98 shall be shall read as follows: Sec. 18-98. Overnight parking. Overnight parking for storage on any paved street is hereby prohibited. "Overnight parking for storage" is hereby defined as the habitual parking or storing of cars, trucks, tractors or other vehicles on paved streets during the hours from sundown to sunup, except temporarily Page 3 of 8 EXHIBIT 1 disabled vehicles which are protected by flares or other approved signal devices. It is not the intent of this section to prohibit or interfere with passenger cars temporarily parked at night when such parking is not in excess of twenty (20) continuous hours and if the following conditions are met: (1) the vehicle displays current vehicle inspection; (2) the vehicle displays current vehicle registration; and (3) the owners maintain current insurance or other proof of financial responsibility. SECTION 6. Chapter 18 of the Code of Ordinances of the City ("Motor Vehicles and Traffic") be and the same is hereby amended by amending Section 18-108 "Parking of unauthorized vehicles in spaces designated for disabled persons prohibited" to add a provision to make it a violation to block or encroach on a handicapped space. Section 18-108 shall read as follows: Sec. 18-108. Parking of unauthorized vehicles in spaces designated for disabled persons prohibited. It shall be unlawful for any person to stop, park or leave any vehicle in any parking space designated as exclusive parking for disabled persons pursuant to Section 18-107 unless such vehicle is displaying a specially designed symbol, tab or other device issued by the state department of highways and public transportation affixed to the license plates of such vehicle indicating the operator thereof or a passenger therein is permanently disabled or unless such vehicle is displaying an identification card issued by the department indicating the operator of such vehicle or a passenger therein is temporarily disabled. It shall be unlawful to block or encroach on a handicap access. SECTION 7. Chapter 18 of the Code of Ordinances of the City ("Motor Vehicles and Traffic") be and the same is hereby amended by amending Section 18-140 "Enforcement" to remove the requirement of the three unpaid citations being within a calendar year. Section 18- 140 shall read as follows: Sec. 18-140. Enforcement. (a) An order filed by a hearing officer under this article, or a final judgment of the municipal court after appeal, may be enforced by: (1) impounding the vehicle; (2) immobilizing by the placing of a device ("boot") that prohibits the movement of a motor vehicle on the vehicle that is the subject of the order filed; Page 4 of 8 EXHIBIT 1 (3) an additional fine if not paid within the specified time; (4) denial of parking permits; or (5) provisions of Section 18-143(g)(2). (b) Provided, however, that no vehicle shall be impounded under (a)(1) or immobilized under (a)(2) of this article unless: (1) the offender has three (3) or more unpaid vehicle parking or stopping offenses; and (2) written notice is mailed to the registered owner of the vehicle at least ten (10) days before the vehicle is impounded or immobilized, said notice to inform the registered owner of the vehicle's eligibility of immobilization or impoundment. The notice shall state the vehicle is eligible for immobilization or impoundment because the criteria of three (3) or more unpaid vehicle parking or stopping offenses has been met. Said notice shall also inform the owner of his right to submit information to the hearing officer regarding the propriety of the immobilization or impoundment of the vehicle. SECTION 8. Chapter 18 of the Code of Ordinances of the City ("Motor Vehicles and Traffic") be and the same is hereby amended by amending Section 18-143 "Fines and fees." Section 18-143 shall read as follows: Sec. 18-143. Fines and fees. (a) The owner of any vehicle found to be in violation of any provision of this Chapter related to the parking or stopping of vehicles shall be liable to the City of Denton and shall owe a civil administrative penalty in an amount not less than $1.00, nor more than $200.00, unless for an offense related to Handicap Parking, in which case the penalty cannot exceed $500.00, in accordance with a schedule of civil administrative parking penalties as promulgated by the Presiding Judge of the Denton Municipal Court. The schedule of civil administrative parking penalties shall be reviewed annually by the Presiding Judge of the Denton Municipal Court, and shall be available to the public upon request at the offices of the Municipal Court Clerk or City Secretary. (b) If the owner of a vehicle to which a parking citation has been issued makes a timely request for hearing as set forth in this Chapter, the Civil Administrative Hearing Officer may, within their reasonable judgment or discretion, or upon proper appeal, the Presiding Judge of the Municipal Court or designated Assistant Municipal Judge, may assess a civil Page 5 of 8 EXHIBIT 1 administrative fee in an amount greater than or less than that established by the promulgated schedule of civil administrative parking penalties. (c) The owner of any vehicle to whom a parking citation has been issued shall have fifteen (15) days from the date of issuance of said citation in which to either pay the civil penalty assessed or due or file a written notice or request for a civil administrative hearing as to the issue of liability with the Denton Municipal Court Clerk either in person or by mail at 601 E. Hickory, Ste. D, Denton, Texas, 76205. Unless a written notice or request for administrative hearing has been properly filed within fifteen (15) days of the issuance of the citation, any citation which remains unpaid, after fifteen (15) days shall be deemed to be delinquent and the owner of the vehicle shall be liable to the City of Denton for all civil administrative penalties and fees as provided under this Chapter. (d) Any civil administrative penalty assessed and due under this Chapter which remains unpaid on or after the sixteenth (16"') day after the date of issuance, shall be increased in an amount of Thirty -Five Dollars ($35) over and above the initial amount of penalty due or assessed, unless a timely written notice or request for an administrative hearing has been filed with the Denton Municipal Court Clerk or Parking Enforcement Division Office as referenced herein. (e) In order to appeal a finding of liability after an Administrative Hearing before a hearing officer, the owner of a vehicle found to be liable must, within thirty (30) days after the filing of the hearing officer's order as provided in section 18-139, file a written request or notice of appeal with the Denton Municipal Court Clerk. The written request or notice of appeal must be accompanied by payment of a cash bond in the amount of the civil administrative penalty assessed, an administrative hearing fee of twenty-five dollars ($25.00) and, a municipal court appellate filing fee in the amount of twenty-five dollars ($25.00). (f) The owner of a vehicle who has contested liability at a timely and properly requested Administrative hearing, but who has been found liable by the Administrative Hearing Officer after consideration of testimony or evidence shall be assessed an additional fee of twenty -Five Dollars ($25), which shall also be due at the same time as the civil administrative penalty assessed. (g) The payment of a civil administrative penalty to the parking division shall be deemed an acknowledgement of liability for the parking violation. (h) The boot fee shall be fifty dollars ($50.00). In addition to the boot fee, charges for towing and/or storage of impounded vehicles shall be as provided by the law applicable to abandoned vehicles. (i) If three (3) or more parking citations remain outstanding because of non-payment or failure to request an administrative hearing within fifteen (15) days after date of issuance of the citations, the Parking Enforcement Division shall send to the registered owner of the vehicle Page 6 of 8 EXHIBIT 1 to which the citations had been affixed a letter informing the owner that the citations are delinquent and that either or both of the following actions may be taken if the citations have not been answered within ten (10) days of the date of the letter: (1) The vehicle may be impounded in place by means of an immobilization device or, at the option of the city, towed away to a secure area of impoundment. If the vehicle is towed to a secure impoundment, the owner shall be responsible for towing and storage charges. (2) The registered owner of the vehicle on the dates which such parking violations occurred may be summoned to appear in the municipal court by an order of a hearing officer. Failure to response to such order may result in further charges including but not limited to failure to appear or a violation of city ordinance. Such charges shall be considered a class C misdemeanor charge. Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. 0) All fines, costs, and fees shall be deposited in the proper account of the general fund of the city, unless otherwise directed by resolution of the city council. SECTION 9. 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 invalidity. SECTION 10. Save and except as amended hereby, all the provisions, sections, subsections, paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 11. Any person found liable of violating this ordinance by a court of competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500) per offense per day. Each day that a provision of this ordinance is violated shall constitute a separate offense. SECTION 12. This ordinance providing for a penalty shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record -Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. Page 7of8 EXHIBIT 1 PASSED AND APPROVED this the �"/ day of , 2011. MARK A. BURRO S, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 'iz�ke' Page 8 of 8 EXHIBIT 2 ScurchTems Malutes S* -i rch by Kay rd or Citation finer KeyvAt"! m Cumm 11DW 0 > . 0, "n , Neer In HAS subdue: (1) 'Al.k)"' means a mxeet (A) is not, used primarily for through tTaffic-, and proddes aoms to rear entrances of build nivor lots almp "Ummam" Mum (A) the ponjon of a roadway, includirl'g an designated, ag a pwdestfiart erming by surface ma*zings, ircludi.Rg. Niios-; or (6) the pomion of a roadway at an Mat is lvitl"Jin the contic"erion's Of t.1"te hitetal, lifles oi 1.1te sid,,Bk�.alkS on oppositc ghm of Ow Epi lay 3nedr;L11-Tqlfr0MD 1.11C'Carbs or, in the absence of curbs, 6-0331 the edg,&� ot the traver,, iWe roadway. EXHIBIT 3 Proposed Revisions to Ordinance 2011-113 Existing language: Sec. 18-91.50. - Stopping or parking prohibited in certain places. (a) An operator may not stop or parka vehicle: (1) On the roadway side of a vehicle stopped or parked at the edge or curb of a street; (2) On a sidewalk; (3) In an intersection; (4) On a crosswalk; (5) Between a safety zone and the adjacent curb or within thirty (30) feet of a place on the curb immediately opposite the ends of a safety zone, unless the governing body of a municipality designates a different length by signs or markings; (6) Alongside or opposite a street excavation or obstruction if stopping or parking the vehicle would obstruct traffic; (7) On a bridge or other elevated structure on a highway or in a highway tunnel; (8) On a railroad track; (9) Where an official sign prohibits stopping; or (10) Within five (5) feet of a public or private driveway or blocking any portion of a public or private driveway or access to such driveway. (b) An operator may not, except momentarily to pick up or discharge a passenger, stop or park an occupied or unoccupied vehicle: (1) In front of a public or private driveway or within five (5) feet of a driveway; (2) Within fifteen (15) feet of a fire hydrant; (3) Within twenty (20) feet of a crosswalk at an intersection; (4) Within thirty (30) feet on the approach to a flashing signal, stop sign, yield sign, or traffic -control signal located at the side of a roadway; (5) Within twenty (20) feet of the driveway entrance to a fire station and on the side of a street opposite the entrance to a fire station within seventy-five (75) feet of the entrance, if the entrance is properly marked with a sign; or (6) Where an official sign prohibits stopping or parking. (c) An operator may not, except temporarily to load or unload merchandise or passengers, park an occupied or unoccupied vehicle: (1) Within fifty (50) feet of the nearest rail of a railroad crossing; or (2) Where an official sign prohibits parking. (d) Aperaon may stop or parka bicycle on a sidewalk ifthe bicycle does not impede the normal and reasonable movement of pedestrian or other traffic on the sidewalk. (e) A person may not stop or parka vehicle on a public right'of+mayora state or city easement for the purpose displaying the vehicle for sale. Recommended Changes Lre ,d text to Section 18-_91.50.Lbl (b) An operator may not, except momentarily to pick up or discharge a passenger, stop or park anoccupied orunoccupied vehicle: (1) In front of a public or private driveway or within five (5) feet of a driveway; (Z) Within fifteen (15) feet of afire hydrant; (3) Within twenty (Z0)feet ofacrosswalk atan intersection, where crosswalk means; or n the connections kU (�ersoble L2Ld�� n the obsence of ocent cross -street, (S) Within thirty (30) feet on the approach to a flashing signal, stop sign, yield sign, or traffic -control signal located atthe side ofaroadway; (6) Within twenty (20) feet of the driveway entrance to a fire station and on the side of street opposite the entrance to a fire station within seventy-five (75) feet of the entrance, ifthe entrance isproperly marked with asign; or (7) Where an official sign prohibits stopping or parking. DRAFT MINUTES TRAFFIC SAFETY COMMISSION November 7, 2016 After determining that a quorum of the Traffic Safety Commission was present, the Commission convened the meeting on Monday, November 7, 2016 at 5:30 p.m. in the City Council Work Session Room, City Hall, 215 East McKinney Street, Denton, Texas. Present: Chair Wally Campbell, Patrice Lyke, Michael Hennen, Jim Owen, Patrice Lyke, and Daniel Krutka Absent: Vice Chair Nancy DiMarco and Cody Robinson Also Present: Mark Nelson, Director of Transportation; John Davis, Director of Engineering Services; Pritam Deshmukh, Senior Engineer; Laura Behrens, Fire Marshall; Julie Anderson, Bicycle and Pedestrian Coordinator; John Chapman, Intern and Kim Mankin, Administrative Supervisor OPEN MEETING 1) Receive a report, hold a discussion, and make a recommendation regarding a revision to the City of Denton Code to improve on -street parking enforcement and enhance traffic safety. Nelson talked briefly about this item. Nelson reminded the Commission this item was discussed as part of the September joint meeting with the Mobility Committee and the recommendation by staff is to clarify the code regarding parking near cross -walks. There was limited discussion and questions. Deshmukh stated that this will add definitions and clarify the language. Motion was made by Commissioner Owen for option lsecond by Commissioner Hennen vote 5-0 approved. Adjournment: 7:26pm e:Amobility\2016\oct 2016\codeAord parking enforcement amendment.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING THE PROVISIONS OF CHAPTER 18 RELATING TO MOTOR VEHICLES AND TRAFFIC BY ADDING SECTION 18-91.50 TO PROHIBIT STOPPING OR PARKING OF VEHICLES IN CERTAIN PLACES; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY NOT TO EXCEED $500 FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Chapter 18 of the Code of Ordinances of the City ("Motor Vehicles and Traffic") be and the same is hereby amended by amending subsection (b) of Section 18-91.50 "Stopping or parking prohibited in certain places" to read as follows: Sec. 18-91.50. Stopping or parking prohibited in certain places. (b) An operator may not, except momentarily to pick up or discharge a passenger, stop or park an occupied or unoccupied vehicle: (1) in front of a public or private driveway or within 5 feet of a driveway; (2) within 15 feet of a fire hydrant; (3) within 20 feet of a crosswalk at an intersection, where crosswalk means: (A) the portion of a roadway, including an intersection, designated as a pedestrian crossing by surface markings, including lines; or (B) the portion of a roadway at an intersection that is within the connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in the absence of curbs, from the edges of the traversable roadway. (4) within twenty (20) feet of the extension of the curbs or, in the absence of curbs from the edges of the traversable area of the adjacent cross -street; (5) within 30 feet on the approach to a flashing signal, stop sign, yield sign or traffic control signal located at the side of a roadway; (6) within 20 feet of the driveway entrance to a fire station and on the side of a street opposite the entrance to a fire station within 75 feet of the entrance, if the entrance is properly marked with a sign; or (7) where an official sign prohibits stopping or parking. SECTION 2. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not 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 invalidity. SECTION 3. Save and except as amended hereby, all the provisions, sections, subsections, paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in full force and effect. SECTION 4. Any person found liable of violating this ordinance by a court of competent jurisdiction shall be fined a sum not to exceed five hundred dollars ($500) per offense per day. Each day that a provision of this ordinance is violated shall constitute a separate offense. SECTION 5. This ordinance providing for a penalty shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record -Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ATTEST: JENNIFER WALTERS, CITY SECRETARY :• APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: CHRIS WATTS, MAYOR Page 2 of 2 2016. City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1520, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: December 6, 2016 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute a professional services agreement for Pipeline Inspection and Condition Assessment at the Lake Lewisville Water Treatment Plant; providing for the expenditure of funds therefor; and providing an effective date (File 6281 -awarded to Pure Technologies U.S. Inc. in an amount not -to -exceed $592,740). The Public Utilities Board recommends approval (6-0). FILE INFORMATION The Lake Lewisville Water Treatment Plant, (LLWTP) currently represents approximately 60% of the City's water supply system. The LLWTP is located at the DME/Garland Power and Light complex off of Spencer Road and is supplied with untreated water from a pumping station located on the Hickory Creek arm of Lake Lewisville. The untreated water transmission pipeline system was built in phases with a 27 inch Concrete Cylinder Pipe (CCP) pipeline constructed within a 30 foot wide water pipeline and electric power line easement in 1956-57 and a 30 inch (CCP) pipeline constructed with a Union Pacific Rail Road right of way in 1975. The 30 inch water line had some recent failures and the quality of the pipe bedding material (native soils were used instead of sand) and installation may be of continued concern. Due to the failure history and the competing use of the Rail/Trail corridor, staff recommends performing a pipeline condition assessment for the 30 inch untreated water transmission pipeline. This project was included in the FY 2016-17 adopted budget. The 27 inch raw water pipe line was properly embedded in sand as specified and found in better condition than the 30 inch pipe line on multiple occasions over the years -including the I -35E widening project in April, 2015. Due to relatively good condition of the 27 inch water line, the staff recommends assessing this pipe condition within the next five (5) years. The best available technology to perform this condition assessment for the pipeline is using a multi -sensor inspection vehicle with electromagnetics and closed circuit television (CCTV) system available through one of two (2) sole source/high technology providers, Pure Technologies U.S., Inc. and Pipeline Inspection and Condition Analysis Corporation (PICA). The condition assessment report will be the basis for the upcoming pipeline rehabilitation work in the fiscal year 2017 and 2018 Capital Improvement Plan (CIP). Pure Technologies uses a multi -sensor inspection vehicle with electromagnetics and high definition digital pan - tilt -zoom CCTV system marketed under the trade name PureRobotics. The advanced, remotely operated robotic crawler is tethered by a high-strength, fiber optic cable. The modular based transporter is completely City of Denton Page 1 of 3 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1520, Version: 1 open ended, and can be equipped with any tool or sensor required to carry out an inspection. The tool uses CCTV in addition to the electromagnetic sensors, Laser profiling, and Lidar with 3D reporting capabilities for assessing the structural integrity of the pipeline. Pure Technology has developed and patented this technology and their sole source letter is attached with this memorandum. Pipeline Inspection and Condition Analysis Corporation (PICA) uses a patented pipeline inspection tool "SeeSnake" that employs Remote Field Technology (RFT) for measuring pipe wall thickness continuously along the length of the water line and detects corrosion, wall thinning and graphitization. This inspection tool is capable of inspecting a maximum pipe size diameter of 28 inches. The inspection system is not able to visually inspect the pipe interior. Based on the documentation and references provided by the two (2) providers, the "PureRobotics" inspection vehicle from Pure Technologies has the necessary accuracy and visual inspection capability to assess the condition of the 30 inch untreated water transmission pipe line. The "SeeSnake" inspection tool from PICA is deficient in the capabilities to accurately perform the pipe line condition assessment. In addition, existing pipeline flanges, on the untreated water transmission pipeline, make the deployment and retrieval of the "PureRobotics" unit easier to accommodate over the much larger PICA "SeeSnake" system. In 2015, the City of Austin has signed a sole source (unique technology) multi-year contract with Pure Technologies to perform condition assessment and leak detection of large diameter pipelines. Pure Technologies also performed similar pipe condition assessments for the Trinity River Authority (TRA), City of Flower Mound, and City of El Paso. The negotiated agreement with Pure Technology (Exhibit 4) was based upon the unit pricing methodology and costs contained in the much larger Austin Water Utilities annual contract agreement. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On November 7, 2016, the Public Utilities Board recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Award a professional services agreement for Pipeline Inspection and Condition Assessment at the Lake Lewisville Water Treatment Plant to Pure Technologies U.S. Inc. in an amount not -to -exceed $592,740. The amount recommended by staff is based upon the following: Mobilization including site reconnaissance and equipment fee (lump sum) EM Technology Fee for > Smile inspection ($8.50/foot*8.5 miles*5,280 feet/mile) Surcharge for Enhanced EM technology required to assess bar wrapped pipe ($2.00/foot*8.5 miles*5,280 feet/mile) Pipe Performance Risk Curve Pipe -by -Pipe GIS Compilation and Deliverable ($1.25/foot*8.5 miles*5,280 feet/mile) Pipe Verification Services ($5,000 per day) - 4 Days Total Fee for EM Inspection, Verification and Deliverable PRINCIPAL PLACE OF BUSINESS $40,000 $381,480 $89,760 $5,400 $56,100 $20,000 $592,740 City of Denton Page 2 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, File #: ID 16-1520, Version: 1 Pure Technologies U.S. Inc. Addison, TX ESTIMATED SCHEDULE OF PROJECT This project is estimated to be completed in July 2017. FISCAL INFORMATION The purchase of the services will be funded from the Water Capital Fund account 63035517.1360.40100. Requisition# 132010 has been entered in the Purchasing software system. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 2.3 Promote superior utility services and facilities FxHIRITC Exhibit 1: Single Source Staff Memo 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: Mamun Yusuf at 349-7523. City of Denton Page 3 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, EXHIBIT I f10: Elton Brock, Purchasing Manager o FROM: Tim Fisher, [I.E., General Manager of Water DATE: September 27, 2016 RE: Sole Source Justification for Pipe Condition Assessment Service The Lake Lewisville Water Treatment Plant, (l.,LWTP) Currently represents approximately 60% of the City's water supply system. The LLWTP is supplied with untreated water from a pumping station located on. the Hickory Creek arm of Lake Lewisville. The untreated water transmission pipeline system was built in phases with a 27 inch Bar -Wrapped Pipe (BWP) pipeline constructed within a 30 foot wide water pipeline and electric power line easernent in 1956-57 and a 30 inch (BWP) pipeline constructed with a Union Pacific Rail Road right of way in 1975. The 30 inch water line had experienced some recent failures and the quality of the pipe bedding material (native soils were used instead of.sand) and installation are of continued concern. Due to the failure history and the competing use of the Rail/Trail corridor, staff recommended performing a pipeline condition assessment for the 30 inch untreated water transmission pipeline which is included in the fiscal year 2016 budget process. The best available technology to perform this condition assessment for the pipeline is using a multi -sensor inspection vehicle with eleCtTOmagnetics and closed circuit television (CCTV) system available through one of two (2) sole source/high technology providers, Pure Technologies U.S., Inc. and Pipeline Inspection and Condition Analysis Corporation (PICA). Pure Technologies uses a multi -sensor inspection vehicle with electromagnetics and high definition digital pan -tilt -zoom CCTV system marketed under the trade name PureRobotics. The advanced, remotely operated robotic crawler is tethered by a high-strength, fiber optic cable. The modular based transporter is completely open ended, and can be equipped with any too] or sensor required to carry out an inspection. The toot uses CCTV in addition to the electromagnetic sensors, Laser profiling, Lidar with 3D reporting capabilities for assessing the structural integrity of the pipeline, Pure Technology has developed and patented this technology and their sole source letter is attached with this memorandum. Pipeline Inspection and Condition Analysis Corporation (PICA) uses a patented pipeline ,inspection tool "SeeSnake" that employs Remote Field Technology (RFT) for measuring pipe wall thickness continuously along the length of the water line and detects corrosion, wall thinning and graphitization. This inspection tool is capable of inspecting a maximum pipe size diameter of 28 inches. The inspection system is not able to visually inspect the pipe interior. Based on the documentation and references provided by the two (2) providers, the "PureRobotics" inspection vehicle from Pure Technologies has the necessary accuracy and EXHIBIT I visual inspection capability to assess the condition of the 30 inch untreated water transmission pipe e. The "SeeSnake" inspection tool from PICA is deficient in the capabilities to accurately perform the pipe line condition assessment. In addition, existing pipeline flanges, on the untreated water transmission pipeline, make the deployment and retrieval of the "PureRobotics"' unit easier to accommodate over the much larger PICA "SeeSnake" system. Timothy S. F'i s0i-, P.E. General Manager of Water Mamun Yusuf, P.E. Senior Engineer, Water Production 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 EXHIBIT 2 DRAFT MINUTES PUBLIC UTILITIES BOARD Monday, November 11, 2016 9:00 a.m. Service Center Training Room 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, November 11, 2016 at 9:00a.m. in the Service Center Training Room at the City of Service Center, 901 A Texas Street, Denton, Texas. Present: Chair Randy Robinson, Vice Chair Susan Parker, Barbara Russell, Charles Jackson, Brendan Carroll and Allen Bishop Ex Officio Members: Howard Martin, ACM Utilities Absent: Lilia Bynum OPEN MEETING CONSENT AGENDA G. PUB16-236 - Consider recommending approval of a sole source Pipe Condition Assessment Service Agreement between the City of Denton and Pure Technologies U.S. Inc., in the total amount not to exceed $592,740 for the Lake Lewisville Water Treatment Plant 30 inch untreated water transmission pipeline inspection and condition assessment. (File 628 1) Board Member Jackson motioned to approve item G. There was a second by Board Member Carroll, vote 6-0 approved. Adjournment 11:04 a.m. EXHIBIT 3 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR PIPELINE INSPECTION AND CONDITION ASSESSMENT AT THE LAKE LEWISVILLE WATER TREATMENT PLANT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 6281—AWARDED TO PURE TECHNOLOGIES U.S. INC. IN AN AMOUNT NOT -TO -EXCEED $592,740). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 6281 Pure Technologies U.S. Inc. $592,740 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. EXHIBIT 3 SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. 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 6281 to the City Manager of the City of Denton, Texas, or his designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY alm APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 4 Docusign City Council Transmittal Coversheet RFP 6281 File Name Lake Lewisville Raw Water Line Assessment Purchasing Contact Robyn Forsyth City Council Target Date December 6, 2016 Granicus # Ordinance # DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 PROFESSIONAL SERVICES AGREEMENT FOR LAKE LEWISVILLE RAW WATER LINE ASSESSMENT STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into on Pure Technologies U.S. Inc., by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Pure Technologies U.S. Inc., with its corporate office at 4505 Excel Parkway, Ste4600, Addison TX 75001, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described project: The Project shall include, without limitation, (herein describe project) ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner: A. The CONSULTANT shall perform all those services as necessary and as described in the OWNER's Technical Specifications (describe any request for proposal which the OWNER has utilized to solicit the CONSULTANT's services), which is attached hereto and made a part hereof as Exhibit "A" as if written word for word herein. B. To perform all those services set forth in CONSULTANT's Scope of Work dated September 20, 2016 (describe any proposal of CONSULTANT which has been provided including the date of said proposal), which proposal is attached hereto and made a part hereof as Exhibit "B" as if written word for word herein. CONTRACT 6281 PURE TECHNOLOGIES 1 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 C. CONSULTANT shall perform all those services set forth in individual task orders which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements. (If CONSULTANT is a professional engineer and you wish to list specific services of the CONSULTANT, please list all specific engineering services to be provided, including the preparation of detailed plans and specifications.) D. If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits or task orders. ARTICLE IH ADDITIONAL SERVICES (To be used if CONSULTANT is an engineer.) Additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above- described Basic Services, are described as follows: A. During the course of the Project, as requested by OWNER, the CONSULTANT will be available to accompany OWNER's personnel when meeting with the Texas Natural Resource Conservation Commission, U.S. Environmental Protection Agency, or other regulatory agencies. The CONSULTANT will assist OWNER's personnel on an as - needed basis in preparing compliance schedules, progress reports, and providing general technical support for the OWNER's compliance efforts. B. Assisting OWNER or contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this Agreement. C. Sampling, testing, or analysis beyond that specifically included in Basic Services. D. Preparing copies of computer aided drafting (CAD) electronic data bases, drawings, or files for the OWNER's use in a future CAD system. E. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. F. Appearing before regulatory agencies or courts as an expert witness in any litigation with third parties or condemnation proceedings arising from the development or construction of the Project, including the preparation of engineering data and reports for assistance to the OWNER. G. Providing geotechnical investigations for the site, including soil borings, related analyses, and recommendations. H. (List any additional services not included in Basic Services.) CONTRACT 6281 PURE TECHNOLOGIES 2 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue of a notice to proceed by the OWNER, and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee. ARTICLE V COMPENSATION A. COMPENSATION TERMS: 1. "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of outside services, not provided by the Consultant. 2. "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown in Exhibit "B" which is attached hereto and made a part of this Agreement as if written word for word herein, a total fee, including reimbursement for direct non -labor expenses not to exceed $592,740. Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The OWNER may withhold the final five percent (5%1 20% SOW) of the contract amount until completion of the Project. Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement. CONTRACT 6281 PURE TECHNOLOGIES 3 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER. The CONSULTANT shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the OWNER. C. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III, the CONSULTANT shall be paid based on the Schedule of Charges at an hourly rate shown in Exhibit "B." Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with subsection B hereof. Statements shall not be submitted more frequently than monthly. D. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the said thirtieth (30th) day, and, in addition, the CONSULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation." E. Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201-4299. A pro-folma invoice shall be sent to the contract administrator as identified in the Notice to Proceed. It is the intention of the City of Denton to make payment on completed orders within thirty days after receipt of invoice or items; whichever is later, unless unusual circumstances arise. 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. ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any subcontractors or sub -consultants. CONTRACT 6281 PURE TECHNOLOGIES 4 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or sub -consultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense. In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project. ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. Notwithstanding anything herein to the contrary, neither party hereto will be liable to the other for any consequential, indirect, incidental, or special loss or damage suffered by the other party or any third party, or for any punitive damages. ARTICLE X INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than CONTRACT 6281 PURE TECHNOLOGIES 5 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. C. Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. E. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The General Liability and Auto Liability insurance policies shall name the OWNER as an additional insured. CONSULTANT shall endeavor to provide OWNER with any cancellation or modification to its insurance policies. ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving one party's disagreement, may include the other party to the disagreement without the other's approval. ARTICLE XII TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination. The CONTRACT 6281 PURE TECHNOLOGIES 6 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 OWNER shall pay CONSULTANT for (i) all services properly rendered and satisfactorily performed, (ii) for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article V "Compensation," and (iii) for reasonably incurred termination expenses resulting from the early termination by the OWNER. Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information. The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and sub - consultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. ARTICLE XIV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CONSULTANT: Pure Technologies U. S. Inc. Attn: Mr. David W. Kurtz. P.E. 4505 Excel Parkway, Ste 600 Addison, TX 75001 To OWNER: City of Denton Mr. Elton Brock 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of twenty-one (21) pages and two exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. CONTRACT 6281 PURE TECHNOLOGIES 7 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 ARTICLE XVI SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE XVIII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIX PERSONNEL A. The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER. CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. B. All services required hereunder will be performed by the CONSULTANT or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER. CONTRACT 6281 PURE TECHNOLOGIES 8 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE XXII MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: (list exhibits) B. The OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CONTRACTOR shall retain such books, records, documents and other evidence pertaining to this agreement during 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 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 this agreement, and to allow the OWNER 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 bore by the OWNER 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 bore by the CONTRACTOR which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the OWNER'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. C. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. D. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Brian Ellis, P.E. Senior Project Manager. However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein. CONTRACT 6281 PURE TECHNOLOGIES 9 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 E. CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement. G. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this the day of 20 CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY GceuSigned by: BY:16 t BY:-E16 CONSULTANT E vcuSigned by: D6614, 1 C,16CCS, Jr, P-f- AU4icrivlCi��1J 31UINArurr-, TITLE CONTRACT 6281 PURE TECHNOLOGIES 10 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 WITNESS: EXHIBIT 4 TEXAS ETHICS COMMISSION CERTIFICATE NUMBER CONTRACT 6281 PURE TECHNOLOGIES 11 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS Bidder's attention is directed to the insurance requirements below. It is highly recommended that bidders confer with their respective insurance carriers or brokers to determine in advance of Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low bidder fails to comply strictly with the insurance requirements, that bidder may be disqualified from award of the contract. Upon bid award, all insurance requirements shall become contractual obligations, which the successful bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of bid award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the bid number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractors are strongly advised to make such requests prior to bid opening, since the insurance requirements may not he modified or waived after bid opening unless a written exception has been submitted with the bid. Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall he maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted.- Each oted: 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 A or better. • Any deductibles or self-insured retentions shall be declared in the bid proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self- insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • 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 CONTRACT 6281 PURE TECHNOLOGIES 12 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 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. • Provide a Waiver of Subrogation in favor of the City of Denton, its officials, agents, employees, and volunteers. • Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled before the expiration date. • 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. CONTRACT 6281 PURE TECHNOLOGIES 13 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 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 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 $500.000.00 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. 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. CONTRACT 6281 PURE TECHNOLOGIES 14 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 [X] Workers' Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). [ ] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with an aggregate. [X] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000 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 6281 PURE TECHNOLOGIES 15 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 contract, that requirement will be described in the "Specific Conditions" of the contract specifications. CONTRACT 6281 PURE TECHNOLOGIES 16 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 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 CONTRACT 6281 PURE TECHNOLOGIES 17 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 2) no later than seven days after receipt by the contractor, anew 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. L 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) 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 CONTRACT 6281 PURE TECHNOLOGIES 18 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 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. CONTRACT 6281 PURE TECHNOLOGIES 19 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 Certificate of Interested Parties Electronic Filing In 2015, the Texas Legislature adopted House Bill 1295, which added section 2252.908 of the Government Code. The law states that the City may not enter into this contract unless the Contractor submits a disclosure of interested parties (Form 1295) to the City at the time the Contractor submits the signed contract. The Texas Ethics Commission has adopted rules requiring the business entity to file Form 1295 electronically with the Commission. Contractor will be required to furnish an original notarized Certificate of Interest Parties before the contract is awarded. in accordance with Government Code 2252,908, The contractor shall: 1. Log onto the State Ethics Commission Website at: https://www.ethics.state.tx.us/whatsnew/elf info forml295.htm 2. Register utilizing the tutorial provided by the State 3. Print a copy of the completed Form 1295 4. Enter the Certificate Number on signature page. 5. Sign and notarize the Form 1295 6. Email the notarized form to purchasing ,citvofdenton.com with the contract number in the subject line. (EX: Contract 1234 — Form 1295) The City must acknowledge the receipt of the filed Form 1295 not later than the 30th day after Council award. Once a Form 1295 is acknowledged, it will be posted to the Texas Ethics Commission's website within seven business days. CONTRACT 6281 PURE TECHNOLOGIES 20 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., and Regular Session. This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local goverment entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Goverment Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Goverment Code. An offense under this section is a misdemeanor. 1 Name of vendor who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the T' business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3 Name of local government officer about whom the information in this section is being disclosed. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the vendor 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 vendor? = Yes No B. Is the vendor receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes = 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 one percent or more? = Yes No D. Describe each employment or business and family relationship with the local government officer named in this section. 4 ❑I have no Conflict of Interest to disclose. 5 Signature of vendor doing business with the governmental entity Date CONTRACT 6281 PURE TECHNOLOGIES 21 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 CONTRACT 6281 PURE TECHNOLOGIES 22 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 Exhibit A CITY OF DENTON SCOPE OF SERVICES ELECTROMAGNETIC CONDITION ASSESSMENT 1.1 Scope — This specification is for furnishing Electromagnetic (EM) Inspection Technology and related services necessary to identify broken wires in PCCP pipelines, locate distressed areas, and to provide a performance risk report based on likelihood of failure, utilizing collected data to perform a subsequent structural analysis with a finite element analysis model, and GIS database model as requested. 1.2 Description: 1.2.1 EM inspection is applicable for evaluating the current conditions of PCCP, metallic (steel and ductile iron) and Bar Wrapped pipes (BWP). Pipe Inspection and data acquisition may be conducted using a manned cart, a robotic unit or free- swimming PipeDiver® delivery platform. EM technology is utilized to identify distressed pipe sections in pipelines. At the request and authorization of Denton Water Utilities (DWU), visual inspection and sounding (if applicable) will be performed in conjunction with a robotic and/or manned EM inspection. 1.2.2 The robotic EM unit shall be equipped with a pan -tilt -zoom closed-circuit television (CCTV) camera, and the unit shall be operative in submerged conditions. The CCTV camera equipment shall be capable of providing views of the pipe ahead of the equipment and of features to the side and rear of the equipment through turning and rotation of the lens. The camera shall be capable of tilting at right angles along the axis of the pipe while panning the camera lens through a full circle about the circumference of the pipe. The lights on the camera shall also be capable of panning 90 -degrees to the axis of the pipe. The camera unit shall have sufficient quantities of line and video cable to inspect as far as 5,000 feet from an access location. Actual inspection distance will be determined based on pipe line configuration and field conditions. 1.2.3 The CCTV equipment shall have a zoom feature and lighting capable of providing general views of the pipeline looking along the pipe up to a distance of five pipe diameters away, including close up views of features. 1.3 CONSULTANT Responsibilities: 1.3.1 The CONSULTANT shall review all available documentation including as built plans, profiles, intersections, make and lay drawings and grid maps of the pipeline. The CONSULTANT shall perform a site reconnaissance and prepare a written Project Planning Document. The Project Planning Document shall include an aerial map showing the location of the pipeline and insertion points. The Project Planning Document shall include a project specific safety and health plan, personnel, equipment, appropriate Safety Data Sheets (SDS) formally MSDS, equipment disinfection procedures for potable pipeline inspections, confined space entry plan, scope of the project and CONTRACT 6281 PURE TECHNOLOGIES 23 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 schedule of work activities. The Project Planning Document shall be submitted to DWU for review and approval prior to initiating work. 1.3.2 In conjunction with a robotic or manned EMT inspection and as may be requested and authorized by DWU, the CONSULTANT shall perform a visual and/or sounding (sounding is only applicable in embedded PCCP) inspection to identify pipe that may be in severe distress and nearing imminent failure. The CONSULTANT shall visually inspect the pipe interior, and all joints, documenting visual defects, damage, deterioration and other relevant information. In addition, the CONSULTANT shall confirm each length of pipe section and provide an "as — constructed" lay schedule. 1.3.3 The CONSULTANT shall furnish test equipment, labor and other related items that are identified in the planning document. The CONSULTANT shall also perform an evaluation of the PCCP using electromagnetic data collected during the inspection. 1.3.4 The CONSULTANT shall be responsible for confined space entry requirements, including ventilation and top side support during pipeline inspection. 1.3.5 The CONSULTANT may be requested to assist with dewatering the pipeline, as needed. 1.3.6 All personnel entering the pipeline(s) shall have received appropriate confined space entry training, OSHA certifications and shall utilize air quality monitors at all times. 1.3.7 Visual and sounding findings shall be documented using photographs, if applicable, of the distressed areas and shall be reviewed in conjunction with the "preliminary" results. If areas of immediate concern are identified during the inspection, the findings shall be communicated to the DWU project manager prior to demobilization. Once all information is cross referenced, photography exhibits will be added to the Project Completion Report. 1.3.8 The CONSULTANT shall advise the DWU Project Manager prior to demobilization in the event of discovering any significantly distressed pipe section(s), and shall incorporate all findings and documentation in the Project Completion Report to be submitted with the electromagnetic testing data and results. 1.4 Project Completion Deliverables: 1.4.1 Upon completion of the inspection, the CONSULTANT shall submit an electronic draft Project Completion Report for DWU review six (6) weeks after a PCCP inspection and nine (9) weeks after a BWP inspection. DWU shall submit comments within five (5) days of receiving the draft report. Two (2) weeks after CONTRACT 6281 PURE TECHNOLOGIES 24 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 receiving DWU's comments the CONSULTANT shall provide four (4) hard bound copies and an electronic version of the final Project Completion Report. 1.4.2 The report shall contain quantitative and/or qualitative results, as applicable, that identify sections of pipe that are identified as having broken wires/bars, cylinder anomalies or anomalous pipe. The report shall provide an estimated quantity of broken wires or bars on each pipe section. The report can include as applicable, the following: 1.4.2.1 If CCTV was utilized the CONSULTANT shall provide one hard drive containing CCTV Video in MPEG Format and still photos of defects collected during the inspection in a JPEG format. 1.4.2.2 GPS coordinates collected for insertion locations during the project shall be in the draft report. 1.4.2.3 An inspection pipe list that includes identified features, a reference to available pipe drawings and the electromagnetic inspection results. 1.4.2.4 Upon authorization from DWU, finite element modeling will be used to develop engineering risk curves to evaluate distressed pipe. 1.4.2.5 As may requested by DWU, CONSULTANT shall furnish a GIS database and geospatial map modeled from inspection data integrated with geographical information, identifying inspection results with respect to the existing pipeline alignment. GPS points will be collected with Trimble 7 series GPS equipment and shall include the accuracy of each point. 1.5 DWU Responsibilities: 1.5.1 Provide all as built plans, profiles, intersections, make and lay drawings, and grid maps of each pipeline to be surveyed, via an email or FTP site. 1.5.2 Accompany the CONSULTANT during site reconnaissance and provide access to the entire pipeline easement and pipeline appurtenances. 1.5.3 Provide access for ingress/egress for manned and or equipment deployment. DWU will provide access to the transmission mains through one or more of the existing man way points on the subject pipeline as needed. DWU will locate and open access and ventilation points and provide a clear area to allow the CONSULTANT to prepare equipment prior to inserting into the pipeline. All personnel entering the pipeline(s) shall have received appropriate confined space entry training and certification and shall utilize air quality monitors at all times. CONTRACT 6281 PURE TECHNOLOGIES 25 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 1.5.4 DWU will lock -out and tag valves and dewater the selected pipelines to the required level to provide a safe working environment during the Electromagnetic Inspection. DWU will provide a dewatering and lock -out tag -out plan to the CONSULTANT for review and approval. 1.5.5 Excavate access holes, and provide shoring as necessary to facilitate the inspection of the pipeline. 1.5.6 Provide traffic control as required. 1.5.7 Secure Right of Way Management Approval Network (BOWMAN) permits, as needed. 1.5.8 Provide and maintain safe and reasonable access to all insertion sites throughout the inspection and obtain any required permits. 1.5.9 Provide support personnel during the inspection to open manholes, and operate valves. 1.5.10 Implement the contingency plan identified in the planning document. 1.5.11 Any additional requirements to complete the inspection that are identified in the Project Planning document that are not included in the CONSULTANT's scope. CONTRACT 6281 PURE TECHNOLOGIES 26 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 Exhibit B September 20, 2016 Mamun Yusaf, P.E. City of Denton 901-A Texas Street Denton, TX 76209 RE: Electromagnetic Inspection of 30 -inch Raw Water Transmission Mains Dear Mamun: Pure Technologies U.S. Inc. (Pure Technologies) is pleased to present the following scope of work and fee schedule to perform an electromagnetic inspection of the 30 -inch bar wrapped pipe (BWP) raw water transmission main running from the City of Denton Pump Station on Lewisville Reservoir to the City of Denton Water Treatment Plant. TIRE TECHNOLOGIES U.S. INC.. Pure Technologies specializes in the condition assessment of critical pipeline infrastructure — supported by proprietary technologies developed for inspection of pressure pipelines, including water mains and wastewater force mains. Since 1993, Pure Technologies has been a world leader providing non-destructive testing and monitoring technologies to better understand the condition of critical pipeline infrastructure. We have performed inspections on over 8,000 miles of medium and large diameter water pipelines and more than 600 miles of wastewater force mains for more than 120 utilities worldwide. Excavations of pipe sections identified as problematic through Pure Technologies' inspection methodologies have validated our technologies and capabilities to assess pipeline infrastructure. PROJECT _.. BACKGROUND The 30 -inch BWP was manufactured by United Pipe Company and the water main constructed in 1974-75. The water main runs approximately 8 miles from the City of Denton Pump Station located on Lewisville Reservoir north along the east side of the Denton County Transportation Authority's railway track running parallel to and east of Interstate Highway 35E. The 30 -inch water main delivers raw water to the City of Denton Water Treatment Plant located in southeast Denton. An aerial photograph showing the approximate location of the 30 -inch raw water main is presented on the next page. CONTRACT 6281 PURE TECHNOLOGIES 27 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 Exhibit B Aerial photograph showing approximate location of the 30 -inch BWP raw water main COPE OF SERVICES Over the years, bar wrapped pipe has been called various names, including pre -tensioned concrete cylinder pipe (P303), concrete cylinder pipe (CCP), rod wrapped pipe, and C303 pipe. Th ' B W d P' e proper name Is Cal - rappe Ipt=; (BWP). The minimum design and manufacturing requirements are covered by the AWWA C303 standard. BWP is comprised of a welded steel cylinder that serves as a watertight membrane and works together with steel reinforcing bars wrapped under tension Barr -Wrapped C-303 Pipe — Construction and Joint Detail g aftrylnil slee+l b., teln3o-mrnmrn 51�ai dp[gal rinB 'r Sea ��IC rtlrr� ms¢xr x_.. .... ��p Iinln® 1 1 - - - dienaatar t �- — — - — wu poioW diemel,+�r nu%we cylinder diameter Ir . ickil depth t' pip. d"rearvaiet er ,.1.)fh9 on9kh -., y,,. diamalpe '.. around the cylinder to provide strength. An internal cement mortar lining and external cement mortar coating provide corrosion protection to the steel components. BWP is produced in diameters of 10" to 72", and standard lengths of 24' to 40' (typically 32 feet). BWP is essentially designed as a steel pipe with mild steel used to manufacture the steel cylinder and steel reinforcing bars. BWP utilizes a cement mortar coating placed over the steel cylinder and bars to protect both the steel reinforcing bars and the steel cylinder. The coating places the CONTRACT 6281 PURE TECHNOLOGIES 28 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 Exhibit b steel in an alkaline environment that prohibits corrosion. If the coating deteriorates or is damaged due to improper handling, operations, aggressive environments, etc., the alkaline environment will be compromised which may lead to corrosion of the steel cylinder and bars. As these elements corrode, the steel cylinder and bars will pit, thereby reducing the effective area of steel. If corrosion continues to progress, the pipe will likely develop a small, non-visible leak, which will grow with time. Eventually a large visible leak or a pipe failure will occur. P3 Examples of BWP deterioration: crack, extensive corrosion, delamination and leakage There are two important aspects to note regarding the deterioration of BWP: 1. Broken bars: there may or may not be broken bars, as corrosion and deterioration can begin on the bars or on the cylinder. 2. Ductile failure: since the structural elements of BWP consist of mild steel, a brittle (sudden) failure is highly improbable. Rupture can occur, however it usually takes place after an extended period of deterioration, usually preceded by leakage. This has been anecdotally contradicted in field observations, where reported sudden failures have occurred; however, in these cases, it is likely that the pipe was previously leaking for an extended period of time, but the leak was unnoticed. Evaluating the condition of BWP often involve a combination of technologies and techniques to identify the various signs of deterioration. Signs of deterioration can include degradation of the bars and steel cylinder, leakage, concrete cracking, spalling and deflection. There are various technologies and techniques that are applicable to BWP, each detecting one or more of these signs of deterioration, but none capable of detecting all the signs. Although the City of Denton has conducted leak inspection on the 30 -inch BWP water main in the past, the City is seeking to obtain a better understanding as to the structural integrity of each pipe within the pipeline. Pure Technologies' Enhanced Electromagnetic (EM) inspection technology offers the ability to detect and quantify broken reinforcing bars, while also evaluating wall loss on the steel cylinder due to corrosion. EM inspection can be performed via a manned cart, a long range multi -sensor robotic unit or a free-swimming PipeDiver® unit. A standard EM setup utilizes a power source, as well as an electromagnetic exciter (transmitter) and a detector (receiver). Signals created by the electromagnetic field, as well as interruptions or disturbances in the signal caused by broken reinforcing bars and/or significant areas of corrosion, are recorded and post -analyzed by Pure Technologies' data analysts. CONTRACT 6281 PURE TECHNOLOGIES 29 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 Exhibit B The ability to detect cylinder damage is highest when the damage is closest to a detector or exciter. For example, calibration testing on a 36 -inch BWP pipe with a 10 -gauge cylinder found that a five -inch square hole in the cylinder was clearly visible when the detector or exciter was directly underneath it. However, if the cylinder damage is large enough, it should be detectable even if it is far away from detector and exciter. For example, an outlet, which is a large cylinder hole, is detectable using the standard EM setup. Based on discussions to date with the City of Denton, it is our understanding that the City prefers to inspect the 30 -inch water main using Pure Technologies' long rang robotic system, which is equipped with a 24 -detector array. The long range robotic unit is equipped with a 9,000 -foot cable; however, the actual distance that the robotic unit can traverse will vary based on the pipeline configuration (bends, slopes, etc.) and interior pipeline condition (bio film, debris, etc.). The robotic unit is also equipped with a high definition pan -tilt -zoom camera that allows for visual inspection of the pipe interior. The quality of the video will depend on the clarity of water that may remain in the pipeline during the inspection. The robotic unit can be deployed in fully submersible conditions; however, the pipeline must be taken out of service and de -pressurized for the duration of the EM inspection. Long Range Robotic EM Inspection Unit STR❑CT❑RAL MODELING ❑ EEIALEIATION EPIPE PERFORMANCE RISE C❑R❑E(S) While the EM inspection technology described herein will provide,it0,,,1, r, data on bar breaks and potential areas of wall loss on the steel 1- 5S 2 cylinder, the challenge associated with assessing and managing distressed pipe is determining what level of distress creates an unacceptable level of risk, thereby requiring repair and/or'' , replacement actions. Pure Technologies utilizes 3D finite element structural models along Finite Element Modeling with hydraulic evaluation data to deliver a decision making tool — "Pipe Derernnines Remaining Performance Risk Curve" - for the management of a pressure main. Pipe Wall Strength Based on the Pipe Performance Risk Curve results, distress in a pipe may be present, but this may not require the immediate rehabilitation or replacement of the pipe section allowing for management and/or monitoring of the deterioration; focusing critical resources on higher risk areas of the infrastructure. Pure Technologies can develop a Pipe Performance Risk Curve for each pipe design of potential concern, depending on the findings of the EM inspection. CONTRACT 6281 PURE TECHNOLOGIES 30 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 Exhibit B Pure Technologies will submit a written report summarizing all inspection results, and providing a risk ranking based on "likelihood" of failure. The report will incorporate all supporting inspection data and documentation, including photographs and video recordings as applicable. Once the City of Denton has reviewed and commented on the report, Pure Technologies will finalize the report and present all findings to the City of Denton via a Workshop. Pure Technologies is able to present all inspection findings in a pipe -by -pipe GIS compilation; whereby the data is delivered in a common spatial data format, such as an ESRI Geodatabase or shapefile. GIS COMPILATION GIS data compilation refers to the process of taking multiple sources of input data to create one seamless GIS data set. In the case of Pure Technologies, this usually includes lay sheets, field - collected GPS data, client GIS, inspection/condition assessment data, plan and profile drawings, etc. The goal of data compilation is to take all of the various data sources available to produce the most accurate "pipe -by -pipe" representation possible. Pure Technologies' GIS Compilation procedure is an intricate process that begins with digitizing the pipeline with no input GIS features, aside from GPS point locations. Using information found in client lay sheets and plan & profile drawings, a "baseline" representation of the pipeline is digitized. If existing GIS data is available, this information will be used if it is deemed to be as accurate as the plan and profile drawings. GPS data is then used to improve the accuracy of the pipeline. Using bearings, distances, slopes, etc. this baseline is meticulously digitized according to the pipeline specifications. Once completed, the pipe list is then used to correct the accuracy of Data output from Pure's the alignment by building a new alignment pipe -by -pipe. The results Advanced G are compared to known feature locations, with particular attention paid Compilation process to horizontal bends. Using our advanced techniques, the pipeline is then adjusted and modified until a best match is found between all of the various sources of data. The result is a pipeline representation that is highly accurate in most cases. CONTRACT 6281 PURE TECHNOLOGIES 31 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 Exhibit B CONHITIoN ASSESSMENT 011' THE 30 -INCH BWP RAW MATER MAIN It is our understanding that all air release valve (ARV) appurtenances include an 18 -inch flange outlet that will provide access to deploy the robotic unit. Following is a "preliminary" list of chainage stations for ARV locations at which Pure Technologies is proposing to access for deployment of the robotic EM unit. ➢ Station 13+10 ➢ Station 21+50 ➢ Station 89+50 ➢ Station 129+50 ➢ Station 170+75 ➢ Station 210+50 ➢ Station 247+50 ➢ Station 268+25 ➢ Station 305+50 ➢ Station 329+00 ➢ Station 383+25 ➢ Station 409+00 ➢ Station 429+50 The deployment locations will be evaluated and finalized as part of the site reconnaissance and in coordination with the City of Denton, and will be included in the project planning document. The City of Denton will be responsible for providing access to the 18 -inch outlet for deployment of the robotic unit. This will include de -pressurizing of the pipeline, removal of the vault lids, and removal of the ARV's and 18 -inch blind flange. When assessing bar wrapped pipelines, Pure Technologies prefers to conduct two (2) inspection runs. This provides corroborating data by which we can identify any potential false readings. Based on the requirement to conduct duplicative inspection runs, we estimate that the total time required to complete the robotic inspections will be 10 to 15 days. E SCHEDULE Site Reconnaissance /Planning Document/Mobilization $40,000 Enhanced EM Inspection using Long Range Robotic Unit and $471,240 Final Report/Workshop TOTAL $511,240 Pipe Performance Risk Curve (if requested) $5,400 each Pipe -by -Pipe GIS Compilation and Deliverable (if requested) $1.25 per foot Pipe Verification Services (if requested) $5, 000 per day See page 8 for grand total CONTRACT 6281 PURE TECHNOLOGIES 32 000uSignEnvelope ID: *monnoFA-osnu-4nF4~^o1n-4ouEAsnFons4 EXHIBIT 4 Exhibit B 9TAWrom., Oki 1. City ofDenton to provide access to pipeline right-of-way and existing access points 0.e, 4`RV's. Blow -offs, |n -Line Valves, etc.). 2. City ofDenton personnel toaccompany Pure Technologies' personnel. 3. City of Denton to provide scaffold platform at access locations if deemed necessary to support safe access. 4. City of Denton to de -pressurize the pipeline to accommodate deployment of the robotic EM inspection unit. 5. Local, State orFederal taxes are not included inthe proposed fee. 6. The proposed fees are based on performing all work under a single mobilization and complete the work in a contiguous manner without delay. Delays include instances where the City ofDenton purposely requests that Pure Technologies stand down. Such instances may occur if the City does not have the access manholes open and available for deployment of the robotic inspection unit, or if the City needs to put the pipeline back into services before the inspection has been completed. In such instances, the City will have the option to request that Puna Technologies go on standby or. if longer downtime is anticipated. the City can request remobi|ization at a later date to be mutually agreed upon by both parties. Standby rate for delays shall be billed at $7,500 per day. If applicable, a re -mobilization fee of $35,000 shall apply for the robotic EM inspection. 7. The City of Denton shall be responsible for any permits and associated fees required by the Denton County Transportation Authority orother government agencies. Costs will only include the fees for permits and any additional safety training required by the Transportation Authority or other government agency. The City ofDenton will not be responsible for reimbursing wages for Pure Technologies' personnel attending the required training. 8. City of Denton to provide all available reference material including manufacturer's lay drawings' pipe design, specifications, and mapping for the pipeline. Q. City ofDenton tonotify landowners aemay berequired. 1O.City ofDenton toprovide traffic control aemay berequired 11. City ofDenton tode-water access vaults aemay berequired. 12. Puna Technologies to invoice at Site Reconnaieeance, Planning Documend, PWobi|ization, Equipment Fee, and Enhanced EM Inspection 80% upon completion offield work. The remaining balance (2O96)will beinvoiced after completion ofthe final Workshop. 13. Fees do not include any consideration for permits or special working arrangements and associated costs that may be required by the Denton County Transportation Authority. Standard turn around on submitting a preliminary report is 10 to 12 weeks following completion of field work. Data analysis can be expedited for an additional fee. Afina| report and Workshop with the City ofDenton will be scheduled following receipt ofcomments and edits from the City of Denton. Puna Technologies is committed to providing the City of Denton with the highest quality electromagnetic inspection in an efficient and noaf effective manner. If you have any questions, please contact me at (214) 377-5303 (office) or (214) 236-5728 (cell). Respectfully, PORE TECUNOLOG|ESU1S1NC| David W. Kurtz, P.E. CONTRACT 6281 PURE TECHNOLOGIES 33 DocuSign Envelope ID: A5B009FA-D602-40F4-A913-4C2EA60FC064 EXHIBIT 4 Exhibit B I Assumes receipt of contract and notice -to -proceed on or before February 13, 2017 b Assumes City of Denton will provide excavations in advance of visual and external EM verification Dave. Ku rtzQ p u retech ltd. co m 0: ( 2 141 -,'7 7. M: (2141 8 0 2 4"105, Par(.vjay, S.gitc 600 Ad � 1 di`,sori, 7X, 7�,-11101) WWW.Duretechltd.corn CONTRACT 6281 PURE TECHNOLOGIES 34 Certificate Of Completion Envelope Id: A5BO09FAD6024OF4A9134C2EA60FC064 Subject: City Council Docusign Item - 6281 Source Envelope: Document Pages: 35 Signatures: 2 Certificate Pages: 6 Initials: 0 AutoNav: Enabled Envelopeld Stamping: Enabled Time Zone: (UTC -08:00) Pacific Time (US & Canada) Record Tracking Status: Original 11/18/2016 2:56:48 PM Signer Events Robyn Forsyth robyn.forsyth@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: John J. Galleher Jr. P.E. John. Galleher@puretechltd.com Vice President, Western Region Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 11/21/2016 6:25:19 AM ID:2ac73680-9d72-46a9-88c4-b81755016a41 John Knight john.knight@cityofdenton.com Deputy City Attorney City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Julia Winkley julia.winkley@cityofdenton.com Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Howard Martin howard.martin@cityofdenton.com Security Level: Email, Account Authentication (Optional) EXHIBIT 4 Holder: Robyn Forsyth robyn.forsyth@cityofdenton.com Signature Completed Using IP Address: 129.120.6.150 CD—Sig-dby, KC4ECKIWC4Es Using IP Address: 184.178.112.142 dSacvSug-d by Using IP Address: 129.120.6.150 Status: Sent Envelope Originator: Robyn Forsyth robyn.forsyth@cityofdenton.com IP Address: 129.120.6.150 Location: DocuSign Timestamp Sent: 11/18/2016 3:05:02 PM Viewed: 11/18/2016 3:05:17 PM Signed: 11/18/2016 3:05:43 PM Sent: 11/18/2016 3:05:45 PM Viewed: 11/21/2016 6:25:19 AM Signed: 11/21/2016 7:21:27 AM Sent: 11/21/2016 7:21:31 AM Viewed: 11/21/2016 7:53:10 AM Signed: 11/21/2016 7:53:25 AM Sent: 11/21/2016 7:53:27 AM Viewed: 11/21/2016 7:54:46 AM S e C U R t D EXHIBIT 4 Signer Events Signature Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Jennifer Walters jennifer.walters@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: in ❑erson Signer Events Signature Editor ❑eliver❑ Events Status ❑gent ❑eliver❑ Events Status Crhtermediar❑ ❑eliver❑ Events Status Certified ❑eliver❑ Events Status Caron Cop[] Events Status Julia Winkley julia.winkley@cityofdenton.com ON Contracts Administration Supervisor City of Denton Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Sherri Thurman sherri.thurman@cityofdenton.com COP#P Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Robin Fox Robin.fox@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Accepted: 10/9/2015 11:39:51 AM ID:04463961-03db-4c4d-9228-d660d6146ed6 Jennifer Bridges jennifer.bridges@cityofdenton.com Security Level: Email, Account Authentication (Optional) Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Timestamp Sent: 11/21/2016 7:21:30 AM Viewed: 11/21/2016 7:53:03 AM Sent: 11/21/2016 7:21:30 AM Viewed: 11/21/2016 7:29:59 AM EXHIBIT 4 Caron Cop[] Events Status Timestamp Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Jane Richardson jane.richardson@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Mamun Yusuf mamun.yusuf@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Randy Markum randy.markum@cityofdenton.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Dave Kurtz Dave.Kurtz@puretechltd.com Security Level: Email, Account Authentication (Optional) Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: ❑otar❑ Events Timestamp Envelope Summar❑ Events Status Timestamps Envelope Sent Hashed/Encrypted 11/21/2016 7:53:27 AM Electronic Record and Signature Disclosure Electronic Record and Signature Disclosure created on: 4/20/2015 7:25:38 AM Parties agreed to: John J. 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McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1521, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: December 6, 2016 SUBJECT Consider adoption of an ordinance authorizing the City for Bond Counsel Services for the City of Denton; providing an effective date (File 6254 -awarded to Audit/Finance Committee recommends approval (3-0). FILE INFORMATION Manager to execute a professional services agreement providing for the expenditure of funds therefor; and McCall, Parkhurst and Horton, LLP ("MPH"). The On February 21, 2012, the City Council adopted Ordinance No. 2012-028 awarding a five-year contract to McCall, Parkhurst and Horton, LLP ("MPH") for bond counsel services. This contract became effective March 27, 2012 and is due to expire on March 26, 2017. In an effort to reduce costs at that time, staff requested that MPH review its fee schedule for the City which resulted in a slight reduction in fees. At that time, staff estimated that the reduced fee schedule represented a savings of $2,500 on a $50 million bond sale. The current fee schedule is a graduated fee schedule with declining rates as the amount of bonds increases. Additionally, MPH agreed to include a provision that if an issue exceeded $100 million they would extend a negotiated discount for that issue. For the upcoming Utility System Revenue Bonds, Series 2016, the firm agreed to a discount of approximately $38,000 to coincide with their proposed fees for a potential new contract. This discount is not contingent upon approval of a contract. In anticipation of this approaching expiration date, staff requested a proposed fee schedule from MPH for this service assuming a five (5) year continuous term contract. While the term of the contact is proposed for five (5) years, the City has the right to terminate the contact with thirty (30) day notice. Below are the current and proposed fees: City of Denton Page 1 of 3 Printed on 12/2/2016 povveied by I_egivt9i IN Current Fee Proposed Fee Bond Counsel Services: Base Fee for first $1 million of Bonds $5,000 $5,000 Plus 1,000 of Bonds for next $9 million of Bonds $1.00 $1.00 Plus 1,000 of Bonds for next $30 million of Bonds $0.95 $0.95 Plus 1,000 of Bonds thereafter' $0.90 /A Plus 1,000 of Bonds for next $60 million of Bonds /A $0.90 City of Denton Page 1 of 3 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1521, Version: 1 Plus 1,000 of Bonds thereafter /A $0.50 Optional Legal Disclosure Services: Partner $250 per hour $375 per hour Associate $150 per hour $275 per hour `lf an issue exceeds $100 million, the lien and City will negotiate a discount on lees. 'To date, optional legal services have not been necessary. The proposed fees above now fully memorializes the "negotiated discount" included in the current fee schedule. As such, staff anticipates that ongoing savings will occur if the City's capital improvement programs continue to expand for the foreseeable future. As a due diligence check on fees, staff conducted an informal inquiry into pricing for bond counsel services among various cities. While not all cities are experiencing the same growth as the City of Denton nor are they, in most cases, full service cities, staff did find that most fees are comparable to those charged by MPH. However, staff would note that most other cities pay an additional markup (up to 1.5 times) on fees for refunding issues, variable rate issues and issues related to federal or state agencies. MPH does not differentiate between types of issues. In addition, hourly fees or additional fixed charges are also charged for services not directly related to an upcoming issuance or bond election. MPH does not charge separate fees for such services. City staff is very pleased with the services provided by MPH and the lead attorney, Mr. Greg Schaecher, who is assigned to represent the City. Mr. Schaecher is always available to City staff and assists with development legal issues as requested and at no additional costs. The City's Legal Department is also pleased with the services provided by MPH and also recommends a renewed contract for bond counsel services. MPH ranks number 1 (10 of last 11 years) in Texas by number of issues and amount issued. In 2015, MPH ranked number 3 nationally by number of issues and amount issued. Staff has attached (Exhibit 2) MPH's statement of qualifications that provides additional information regarding the firm's experience, staff and services. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On September 27, 2016, the Audit/Finance Committee recommended approval to forward this item to the City Council for consideration. RECOMMENDATION Staff recommends award of a new five (5) year continuous term contract with McCall, Parkhurst and Horton, LLP for bond counsel services. PRINCIPAL PLACE OF BUSINESS McCall, Parkhurst and Horton, LLP Dallas, TX ESTIMATED SCHEDULE OF PROJECT This is a five (5) year contract that expires on March 25, 2022. City of Denton Page 2 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, File #: ID 16-1521, Version: 1 FISCAL INFORMATION These services will be funded from the account number associated with the sale of a particular type of bond which may include General Obligation Bonds, Certificate of Obligation and/or Revenue Bonds, as appropriate. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS Exhibit 1: Current MPH Contract Exhibit 2: Statement of Qualifications Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349-8260 Director of Finance For information concerning this acquisition, contact: Tony Puente at 349-7283. City of Denton Page 3 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, EXHIBIT 1 SALegatlOur DoctuneutAOrdinances112\McCall Parkhurst & Horton.dua ORDINANCE NO. 201.2-025 .................. _ AN ORDINANCE APPROVING THE CITY MANAGER TO EXECUTE A BOND COUNSEL AGREEMENT BETWEEN THE CITY OF DENTON AND MCCALL, PARK14URST & HORTON, LLP; APPROVING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City has selected McCall, Parkhurst & Horton, LLP for the purpose of providing bond counsel services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS; SECTION 1. The City Council hereby approves the Bond Counsel Agreement, attached hereto, between the City of Denton and McCall, Parkhurst & Horton, LLP. SECTION 2. The City Manager, or his designee, is authorized to mance the expenditures as outlined in the attached Agreement and to exercise all rights and duties of the City of Denton under the Agreement, ,SECTION 3, This Ordinance shall become effective immediately upon its passage and approval, PASSED AND APPROVED this the. day of , 2012. Ci4 -IA. BR ATTEST; JENNIFER WALTERS, CITY SECRETARY BY: /1)4P*' AP VED TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 1 LAW OFFICES MCCALL, PARKHURST & HORTON L.L.P. 600 CONGRESS AVENUE 717 NORTH HARWOOD 700 N. ST. MARY'S STREET 1250 ONE AMERICAN CENTER NINTH FLOOR 1625 ONE RIVERWAL€C PLACE AUSTIN, TEXAS 78701-3248 DALLAS, TEXAS 75201•S687 SAN ANTONIO, TEXAS 78205.3503 Tofaphone: 512 478-3809 Telephone: 214 754.9200 Telephone; 210 225-2840 Faoslmlle: 612 472-0871 Faoslmlle; 214 754.9250 Fa0stmlle:210 225-2984 February 21, 2012 Mayor and Members of the City Council City of Denton 215 E. McKinney Street Denton, Texas 76201 Re: Engagement as Bond Counsel Dear Mayor and Members of the City Council: This letter is submitted to state our fees and describe the legal services o£McCall, Parkhurst & Horton L.L.P. in performing the duties of Bond Counsel for the City with reference to the issuance of the City's bonds and other debt obligations (the "Bonds'), SCOPE OF ENGAGEMENT Generally, we will perform all usual and necessary legal services as Bond Counsel in connection with the authorization, issuance, and delivery of the Bonds as authorized and requested by the City. Specifically, we will prepare and direct the legal proceedings and perform the other necessary legal services with reference to the authorization, issuance and delivery of the Bonds, including the following.- Prepare ollowing: Prepare all resolutions, ordinances, and other instruments pursuant to which tho Bonds will be authorized, issued, delivered and secured, including election proceedings, if necessary, in cooperation and upon consultation with the City Council, their consultants, and other legal and financial advisors and consultants of the City. 2. Attend meetings of the City Council with reference to the authorization and issuance of the Bonds to the extent regrured or requested. 3, Cooperate with the City Council and all other interested parties in the sale of the Bonds to the purchasers, and review bond purchase agreements. d. Review those sections of any official statement to be disseminated in connection with the sale of the Bonds which describe the Bonds, the resolution or ordinance pursuant to which they will be issued and the tax-exempt treatment of the interest on the Bonds for purposes of federal income taxation. 5, if requested, assist the City in presenting information to bond rating organizations and providers of credit enhancement relating to legal issues affecting the issuance of the Bonds. EXHIBIT 1 6. Submit the Bond transcript to the Public Finance Division of the Attorney General's office and obtain all necessary approvals. 7. Supervise the execution of the Bonds and the delivery thereof to the purchasers. When so delivered, give our approving opinion covering the validity of the Bonds and the exemption of interest thereon from federal income taxes, it being understood that the approving opinion will be fully acceptable nationally in regular conunercial investment banking bond marketing channels. Our services as Bond Counsel do not include any responsibilityfor investigating the financial condition and affairs of the City. Our approving legal opb ion as Bond Counsel will contain a paragraph substantially to the effect that we have acted as Bond Counsel for the City for the sole purpose of rendering an opinion with respect to the legality and validity of the Bonds under the Constitution and laws of the State of Texas, and with respect to the exemption of the interest on the 13onds from federal income taxes, and for no other reason or purpose. The paragraph will also disclose that we have not been requested to investigate or verify, and have, not investigated or verified, any records, data, or other material roiatingto the financial condition or capabilities of the City, and have not assumed any responsibility with respect thereto. FEES AND OTHER SERVICES The fee covering the legal services of this firm, as Bond Counsel, for the issuance of the Bonds, in one or more installments, is as follows: $5,000 for the first $1,000,000 of Bonds; $1.00 per $1,000 of Bonds for the next $9,000,000 of Bonds; $0.95 per $1,000 of Bonds for the next $30,000,000 of Bonds; and $0.90 per $1,000 of Bonds thereafter. If an issue of Bonds by the City exceeds $100,000,000 in principal amount, the firm and the City will discuss and consider discounts to the fee schedule described above and the fees for such an issuance of Bonds will be set at an amount agreed upon by us and the City. Also, we would expect to be reimbursed for our actual out-of-pocket expenses reasonably and necessarily incurred in connection with the authorization, issuance, and delivery of such Bonds, i.e. travel, photocopies, courier, )Yonn 8038G filing and the Attorney General's filing fee. Our fees and expenses will be payable within 30 days after the delivery of and payment for such Bonds, but our fees are wholly contingent upon actual delivery of such Bonds. The foregoing legal services as Bond Counsel do not include any direct responsibility for any kind of litigation. However, if during the issuance of Bonds any litigation should develop regarding the issuance of the Bonds or the provisions made for their payment or security, we will consult, advise, and cooperate with the City and its attorneys concerning any such litigation. Our fees for such services would be based upon the customary hourly billing rates of the attorneys providing such additional services. The firm will undertake upon the request of the City such services as may be necessary to assist the City in satisfying the continuing disclosure requirements of Rule 15c2-12 promulgated by the Securities and Exchange Commission or any necessary disclosure obligations of the City in connection with the issuance of EXHIBIT 1 Bonds. Our fees for such services would be based upon hourly billing rates of the attorneys providing such services, and such rates shall be $250.00 per hour for partners and $150 per hour for associates, Should it be necessary for the firm to render a written opinion with respect to such matters, such fee for legal services provided in connection with the delivery of the opinion will be set at an amount agreed upon by us and the City. At your request, papers and property furnished by you will be returned promptly upon receipt of payment for outstanding fees and client charges. Our own files, including lawyer work product, pertaining to the transaction will be, retained by us. For various reasons, including the minimization of unnecessary storage expenses, we reserve the right to dispose of any documents or other materials retained by us after the termination of this engagement. TERM The terns of this agreement shall commence on March 27, 2012, and conclude on March 26, 2017. Notwithstanding any other provision of oris agreement, either party may terminate this engagement by giving thirty (30) days advance written notice to the other party. Respectfully submitted, McCALL, PARIUHURST & HORTON L.L.P. By: Grego raecher ACCEPTED THIS THE 21ST DAY OF FEBRUARY, 2012. CITY OF DENTON, TEXAS APPROVED AS TO LEGAL FORM: Anita Burgess, City Attorrney By: to September 22, 2016 Antonio Puente, Jr., Assistant Director of Finance City of Denton 215 East McKinney Street Denton, Texas 76201 Dear Mr. Puente: On behalf of McCall, Parkhurst & Horton L.L.P. ("McCall," the "firm," or "us"), I submit this statement of qualification for bond counsel services to the City of Denton, Texas ("you" or the ficity" ). McCall serves as bond counsel to more issuers of tax-exempt debt than any other law firm in the State of Texas or in the Southwestern United States. Accordingly, we serve as bond counsel to more Texas political subdivisions than any other lawyer or law firm. We are consistently ranked by Thompson Reuters among the top ten bond counsel firms in the United States, as well as the number one bond counsel firm here in Texas. McCall frequently serves as bond counsel on more bond transactions than any other law firm in the country. For over 90 years, we have been committed to providing Texas political subdivisions with quality bond counsel services, and we hereby reaffirm our commitment to provide the City with such services to the best of our collective abilities. Investment banks, local and state government agencies, financial advisors and other professionals rely on us daily to guide them through the most basic, and the most complicated, financings in the State of Texas and in the United States. We are confident that our level of service to you will be unmatched. Very truly yours, McCall, Parkhurst & Horton L.L.P. By: 1-24z= Gregory C. Schaecher Enclosures Page 12 EXHIBIT 2 McCall, Parkhurst & Horton L.L.P. ("McCall") has practiced exclusively in the area of public finance law since the firm's creation in 1919. The firm's opinion (as to the validity and enforceability of a public entity's debt obligations and, later, tax exemption) was the first given by a Texas firm accepted in the national securities markets. We are the only law firm in Texas, and one of a few law firms nationwide, that specialize solely in the field of public finance. The firm is composed of 27 active attorneys located in Dallas, San Antonio, and Austin. McCall is the leading bond counsel in Texas and routinely ranks in the top ten bond counsel firms nationally. Historically, the firm has served as bond counsel for more issuers of public securities than any other law firm in the southwestern United States, and in some years, McCall has served as bond counsel on more bond transactions than any other law firm in the country. Our high national ranking is not only an indication of the stature of the firm in the public finance industry, but more importantly, an indication of the depth and breadth of our practice. We consistently achieve our high rankings by holding ourselves to the highest standards of technical expertise, professional dedication, client service and ethical responsibility. McCall represents some of the largest and most sophisticated issuers in the country, including the Cities of Austin, Dallas and Fort Worth, the Dallas/Fort Worth International Airport, the North Texas Tollway Authority, the Texas Department of Transportation, the Texas Water Development Board, the University of Texas System, Texas A&M University System, Texas State University System, and many more. McCall has been a leader in drafting legislation and developing innovative financing techniques in Texas for nearly a century. The following tables summarize the number of transactions and dollar value of public finance issues for which McCall has served as bond counsel in recent years: National and State Rankingsl National Ranking Texas Rankin Year Rank Par Amount No. of Issues Rank Par Amount No. of Issues 2014 3 $13,135,500,000 359 1 $13,022,000,000 347 2013 6 $10,245,200,000; 363 1 $10,218,400,000 352 2012 7 $10,411,000,000 359 1 $10,234,000,000 350 2011 8 ! x$6,941,800,000 ; 291 1 $6,760,100,000 283 2010 7 $11,467,000,000 360 1 $11,419,300,000 355 2009 5 $9,390,700,000 ; 258 1 $9,206,700,000 230 2008 6 $11,276,400,000 238 1 $11,215,000,000 229 2007 8 $9,221,500,000 ; 292 2 $7,703,400,000 232 2006 5 $10,992,000,000 282 1 $10,961,200,000 271 2005 8 $8,770,900,000 ; 310 1 $8,677,000,000 295 As reported by Thomson Reuters in its US Municipals Review; excludes private bank placements and remarketing of variable rate demand obligations. Page 3 1 Source: Thomson Reuters US Municipals Review. Page 14 2015 Top Ten National Firms by Volume' Rank Firm Par Amount No. of Issues 1 Orrick Herrington & Sutcliffe LLP $37,545,100,000 391 2 Hawkins Delafield & Wood LLP $23,077,800,000 396 3 McCall Parkhurst & Horton LLP $14,502,800,000 436 4 Norton Rose Fulbright $13,398,400,000 368 5 Kutak Rock LLP $13,334,300,000 412 6 Gillmore & Bell PC $ 9,127,800,000 464 7 Ballard Spahr LLP $ 8,938,900,000 134 8 Sidley Austin ILP $ 8,540,700,000 43 9 Chapman and Cutler LLP $ 8,510,100,000 408 1 Source: Thomson Reuters US Municipals Review. Page 14 2014 Top Ten National Firms by Volume' Rank Firm Par Amount No. of Issues 1 Orrick Herrington & Sutcliffe LLP $30,384,700,000 321 2 Hawkins Delafield & Wood LLP $16,441,100,000 301 3 McCall Parkhurst & Horton LLP $13,135,500,000 359 4 Kutak Rock LLP $9,955,000,000 305 5 Sidle- Austin LLP $ 8,859,900,000 44 6 Stradling Yocca Carlson & Rauth, P.C. $ 8,391,400,000 139 7 Norton Rose Fulbright $ 8,136,700,000 324 8 Greenberg Traurig LLP $ 7,699,400,000 77 9 Squire Patton BOQQS $ 7,650,600,000 181 1 Source: Thomson Reuters US Municipals Review. Page 14 2013 Top Ten National Firms by Volume' Rank Firm Par Amount No. of Issues 1 Orrick Herrington & Sutcliffe LLP $31,543,300,000 310 2 Hawkins Delafield & Wood LLP $18,377,400,000 298 3 Kutak Rock LLP $13,349,100,000 283 4 Norton Rose Fulbright $12,920,100,000 351 5 Squire Sanders & Dempsey LLP $ 10,998,800,000 200 6 McCall Parkhurst & Horton LLP $10,245,200,000 363 7 Stradling Yocca Carlson & Rauth, P.C. $ 9,760,700,000 183 8 Sidley Austin LLP $ 6,913,500,000 42 9 Nixon Peabody LLP $ 6,621,900,000 70 1 Source: Thomson Reuters US Municipals Review. Page 14 2012 Top Ten National Firms by Volume' Rank Firm Par Amount No. of Issues 1 Orrick Herrington & Sutcliffe LLP $30,826,300,000 366 2 Hawkins Delafield & Wood LLP $23,179,100,000 360 3 Sidley Austin LLP $15,164,100,000 71 4 Kutak Rock LLP $14,218,000,000 334 5 Fulbright & Jaworski LLP $12,857,600,000 369 6 Squire Sanders & Dempsey LLP $10,806,800,000 217 7 McCall Parkhurst & Horton LLP $10,411,000,000 359 8 Nixon Peabody LLP $9,067,200,000 61 9 Foster PeDDer PLLC S7.151.300.000 112 1 Source: Thomson Reuters US Municipals Review. Page 14 1 Source: Thomson Reuters, as published in The Bond Buyer on March 1, 2016. 2 Source: Thomson Reuters, as published in The Bond Buyer on February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. 4 Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 2015 Top Five Texas Firms by Volume' Rank Firm Par Amount 1 McCall, Parkhurst & Horton L.L.P. $14,722,400,000 2 Norton Rose Fulbright LLP $ 7,558,300,000 3 Bracewell & Giuliani LLP $ 6,227,200,000 4 Andrews Kurth LLP $ 6,195,800,000 5 Escamilla & Poneck LLP $ 1,513,400 1 Source: Thomson Reuters, as published in The Bond Buyer on March 1, 2016. 2 Source: Thomson Reuters, as published in The Bond Buyer on February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. 4 Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 2014 Top Five Texas Firms by Volumez Rank Firm Par Amount 1 McCall, Parkhurst & Horton L.L.P. $13,022,000,000 2 Andrews Kurth LLP $ 6,084,900,000 3 Norton Rose Fulbright LLP $ 5,854,900,000 4 Bracewell & Giuliani LLP $ 5,091,100,000 5 Bates & Coleman P.C. $ 960,700 1 Source: Thomson Reuters, as published in The Bond Buyer on March 1, 2016. 2 Source: Thomson Reuters, as published in The Bond Buyer on February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. 4 Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 2013 Top Five Texas Firms by Volume3 Rank Firm Par Amount 1 McCall, Parkhurst & Horton L.L.P. $10,218,400,000 2 Norton Rose Fulbright LLP $ 6,433,500,000 3 Bracewell & Giuliani LLP $ 5,169,000,000 4 Andrews Kurth LLP $ 3,581,400,000 5 Newby- Davis PLLC $ 689,000 1 Source: Thomson Reuters, as published in The Bond Buyer on March 1, 2016. 2 Source: Thomson Reuters, as published in The Bond Buyer on February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. 4 Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 2012 Top Five Texas Firms by Volume Rank Firm Par Amount 1 McCall, Parkhurst & Horton L.L.P. $10,234,000,000 2 Fulbright & Jaworski LLP $9,429,000,000 3 Andrews Kurth LLP $ 4,324,600,000 4 Bracewell & Giuliani LLP $ 3,872,300,000 5 Escamilla, Poneck & Cruz, LLP $ 1,475,600,000 1 Source: Thomson Reuters, as published in The Bond Buyer on March 1, 2016. 2 Source: Thomson Reuters, as published in The Bond Buyer on February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. 4 Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 Listed below are some types of securities, whether issued pursuant to public sale, negotiated sale or private bank placements, for which McCall served as Bond Counsel in recent years: • Certificates of Obligation • General Obligation Refunding Bonds • Utility System Revenue Bonds • Tax Notes • Lease -Purchase Transactions • Build America Bonds • Public Improvement District Revenue Bonds • Municipal Management District Revenue Bonds • Public Facility Corporation Lease Revenue Bonds • Public Property Finance Contractual Obligations • Energy Savings Contracts Page 16 The firm is generally organized into two departments, which can be described as follows: Bond Counsel and Securities Department. The majority of the attorneys in the firm serve as bond counsel and securities counsel. As bond counsel, these attorneys analyze applicable state and local laws that apply to the various debt issues and draft all legal documents necessary to permit the lawful issuance of debt. The attorneys of the firm work on hundreds of public bond issues in a given year, spanning the spectrum of the debt instruments sold in the public debt markets. Many of the instruments now commonly issued in Texas and the laws under which they are issued were developed by attorneys in the firm, such as commercial paper notes, forward refundings, interest rate swaps, and various forms of lease -purchase obligations for cities, counties and school districts. These attorneys are also experts in the securities laws that apply to states and their agencies and political subdivisions in connection with the issuance of debt instruments. In representing either the issuer or the underwriters, their primary responsibility is to draft the Official Statement or other offering document, and to perform due diligence to ascertain that all material information related to the issuer and the bonds have been properly disclosed in the Official Statement. Tax Department. The second group (comprised of two attorneys and a paralegal) specializes in the federal tax laws and their application to public finance. One critically important aspect of examining the qualifications of a municipal bond firm is an in-depth examination of its tax department, especially when considering issuing novel debt instruments. Harold T. "Hal" Flanagan, the firm's senior tax partner, has over 35 years of experience (four of which were with Internal Revenue Service (the "IRS") in Washington, D.C.) specializing in federal income taxation of municipal bonds. As a result of his experience, Hal is familiar with the personnel and the procedures of the federal government that relate to the federal income tax laws that impact public finance. Along with the firm's ability to analyze detailed legal questions, McCall is able to provide an in-depth review of financial schedules and proposals, which is crucial when determining whether an issuer is compliance with the IRS's bond regulations. Page 17 EXHIBIT 2 The professional staff of McCall, Parkhurst & Horton L.L.P. is composed of 27 active attorneys. Each and every attorney practices exclusively in the area of public finance. The following table lists the name, position, location and years of experience as an attorney for each member of the professional staff: Name Position Location Fears Experience G. Charles Kobdish* Partner Dallas 42 Alan H. Raynor Partner Dallas 42 Jeffrey A. Leuschel Partner Dallas 35 L.E. (Ted) Brizzolara III Partner Dallas 35 Thomas K. Spurgeon Partner San Antonio 34 Dan S. Culver Partner Dallas 30 Carol D. Polumbo* Partner Austin 30 Gregory B. Salinas Partner Austin 26 Mark A. Malveaux Partner Dallas 23 Leroy Grawunder, Jr.* Partner Dallas 38 Gregory C.Schaecher Partner Dallas 20 Richard S. Donoghue, Jr. Partner Austin 16 Joe Eckert Partner Dallas 18 Noel Valdez Partner San Antonio 15 J. Bart Fowler* Partner Austin 17 Stefano Taverna Partner Dallas 13 Christopher A. Settle Partner Dallas 12 Jeff Gulbas Partner Dallas 9 Jana Edwards Partner Austin 10 Rodoifo Segura Jr Associate Dallas 7 Nicole Kintop Smith Associate Dallas 11 Clayton Chandler Associate Austin 7 Hasan Mack Associate Austin 5 Sam M. Gill Associate Dallas 8 Orlando Juarez, Jr. Associate San Antonio 5 Harold T. Flanagan Of Counsel Dallas 37 Kathy S. Cooper Legal Asst. San Antonio N/A Victoria D. DiMaria Legal Asst. Dallas N/A *Served as Assistant Attorney General of Texas in the Public Finance Division. Below are the names, titles, office locations and years of experience in the area of public finance for each of the persons to be assigned to the City's account: Name Title Office Location Experience Gregory C. Schaecher Partner Dallas 20 years Stefano J. Taverna Partner Dallas 13 rears Brief resumes for each of the above -listed attorneys follows: Page 18 Gregory "Greg" Schaecher has been a partner at McCall, Parkhurst & Horton L.L.P. since February 2006. Greg was a senior associate for three years with Fulbright & Jaworski LLP in its Dallas public finance group prior to joining McCall. At Fulbright & Jaworski, and now at McCall, Greg has served as bond counsel, underwriters counsel, and disclosure counsel for local government financings. Greg has experience with tax-exempt and taxable securities transactions for cities, counties, school districts, tollway authorities, economic development corporations, and other political subdivisions in Texas, including ad valorem tax financings, tax increment financings, utility revenue financings, transportation financings, auction and variable rate financings, interest rate swap agreements, and private placements. Transactions range from less than $1 million to more than $5 billion. Greg has worked on all the North Texas Tollway Authority financings since February 2006 as bond and disclosure counsel. Previously, Greg was a senior associate for six years at Kutak Rock LLP in Omaha, Neb. While at Kutak Rock, Greg concentrated his practice on representing a financial guaranty insurance company in all aspects of public finance and structured finance transactions, including consumer loans, student loans, utilities, waste -to -energy facilities, sports and recreation facilities, health care, and transportation. Transactions ranged from $10 million to more than $1 billion and included public and private placements, variable rate demand, auction rate and commercial paper financings, and senior/ subordinate structures. While at Kutak Rock, Greg acted as creditor counsel on the 1998 Miami Heat American Airlines Arena financing, the 1999 Kansas City International Speedway financing, and the 2001 financings for the Houston Texan Reliant Stadium and Houston Rockets Toyota Center Arena. Greg also acted as creditor counsel for the 1997 Colorado E-470 toll road financing and the 1999 Virginia Dulles Greenway toll road financing. Greg obtained his juris doctorate from the Creighton University School of Law in Omaha, Neb., graduating magna cum laude in 1996. Greg was an assistant editor of the law review while at Creighton. Greg received his bachelor of science degree in business administration with a concentration in accounting from the University of Nebraska at Omaha, graduating summa cum laude in 1993. Page 19 Prior to joining the firm, Stefano was a tax attorney at two law firms with an established Wall Street presence. Stefano has served as bond counsel, underwriters' counsel and special tax counsel for numerous financing transactions throughout the country. Additionally, Stefano has advised clients on the federal and state tax aspects of domestic and international hedge fund formations and operations, mergers, acquisitions and reorganizations, public and private debt and equity offerings, and general corporate, partnership and investment issues. Stefano has represented numerous clients on swap transactions and has advised tax-exempt entities with regard to the federal and state tax implications related to their formation and operations. Prior to joining private practice, Stefano clerked for the Honorable O'C. Wefing, Appellate Division, Superior Court of the State of New Jersey. Stefano is a graduate of Rutgers, the State University of New Jersey (B.A., summa cum laude), Brooklyn Law School U.D.) and New York University School of Law (LL.M.). He is admitted in New York and New Jersey and is a member of the American Bar Association, the New York State Bar Association, and the National Association of Bond Lawyers. Stefano has been a speaker and panelist at various events, including panels on public finance and federal tax matters. In addition, Stefano is a past Editor -in -Chief of the National Association of Bond Lawyers treatise "Fede7al Taxation of Municipal Bonds", and is the Vice Chair of the Tax -Exempt Finance Committee of the American Bar Association. Page 1 10 Many of our attorneys have previously worked in the Office of the Texas Attorney General — Public Finance Division (the "Division"). Leroy Grawunder and Chuck Kobdish, partners in our Dallas office, and Carol Polumbo and Bart Fowler, partners in our Austin office, have previously served as attorneys in the Division. This prior experience gives our firm tremendous institutional knowledge of public securities. We frequently are asked by the Division to submit briefs, position statements and proposed rules regarding legal analysis of issues that are salient to the Division. McCall maintains a fully open and honest relationship with the Division, facilitating the Division's review and approval of a large number of innovative financings for which McCall served as bond counsel. Our ethical responsibilities require us to share all information with the Division, including facts that may be negative, and adherence to our ethics have fostered a strong and professional relationship with the Division. McCall also communicates daily with the credit rating agencies with respect to the firm's more complex financing transactions, especially those involving either credit enhancement or derivative financial products, such as interest rate swaps. As an industry leader, McCall's relationships with the rating agencies are strong and based upon mutual respect. The rating agencies recognize McCall's thorough understanding of the nuances of municipal finance, allowing us to work collaboratively with them to simplify the review process. The firm has worked with all of the major credit rating agencies, bond insurers, and credit enhancers. Page 1 11 Throughout the years, McCall has been responsible for major innovations in our field. One of the main strengths of McCall is our ability to draw upon our attorneys' many years of broad experience to devise unique solutions to our clients' problems. McCall has been a leader in drafting legislation and developing innovative financing techniques for use by political subdivisions in Texas. Members of the firm have played major roles in: • drafting what is now Chapter 1371 of the Texas Government Code. That far-reaching legislation resulted in the introduction of a number of new financial products to the Texas public finance arena, including commercial paper, letter -of -credit and line -of -credit backed bond issues for political subdivisions, and interest rate swap agreements; • developing and serving as Bond Counsel for the first issuance of short-term commercial paper notes, which allow eligible political subdivisions to issue debt at low interest rates to finance capital improvements; • originating the concept of the issuance of contractual obligations for cities, counties, and school districts; • structuring economic development and redevelopment programs throughout the State, including the redevelopment of Robert Mueller Airport in Austin; • development of convention center hotels in Austin, Dallas, Fort Worth, and San Antonio; • thorough revision of the laws regarding the investment of public funds in Texas; and • drafting the legislation that resulted in amendments to the Texas Constitution authorizing the Economic Distressed Areas and Water Infrastructure Fund programs administered by the Texas Water Development Board and the establishment of Texas Water Development Fund II, as well as the amendment to the Texas Constitution establishing a $6 billion evergreen bond authority for the Texas Water Development Fund II. In addition, the firm played a major role in assisting the Texas Legislative Council in the preparation and review of the bill that codified numerous public -finance -related statutes into the Public Securities Title of the Government Code, and contained amendments that clarified and streamlined public finance laws that have been in effect, in some cases, for more than 75 years. McCall was also a leader in financing public infrastructure projects under the provisions of the American Recovery and Reinvestment Tax Act of 2009. The firm's attorneys acted as both bond counsel and underwriters counsel in numerous transactions for taxable Build America Bonds under such legislation, including serving as bond counsel on more than $3.1 billion of Build America Bonds for state transportation -related financings. Page 1 12 EXHIBIT 3 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR BOND COUNSEL SERVICES FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 6254—AWARDED TO MCCALL, PARKHURST AND HORTON, LLP ("MPH"). WHEREAS, The professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to enter into a professional service contract with McCall, Parkhurst and Horton, LLP ("MPH"), to provide professional Bond Counsel services for the City of Denton, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 6254 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. EXHIBIT 3 CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 4 D NTON City of Denton Contract # 6254 Professional Legal Services — Bond Counsel 1of14 EXHIBIT 4 CONTRACT #6254 CONTRACT FOR PROFESSIONAL LEGAL SERVICES — BOND COUNSEL STATE OF TEXAS § COUNTY OF DENTON § This CONTRACT, made and entered into this the day of 12016, by and between McCall, Parkhurst & Horton, LLP, 717 North Harwood, Ninth Floor, Dallas, Texas 75201-6587, hereinafter referred to as "Consultant", and the City of Denton, a Texas municipal corporation, 215 East McKinney, Denton, Texas 76201, hereinafter referred to as "City". WITNESSETH WHEREAS, City finds it necessary to employ outside legal counsel to perform professional legal services regarding issuance of bonds and other debt obligations (the 'Bonds") for the City of Denton. WHEREAS, Consultant is willing to perform such services in a professional manner as an independent contractor; and WHEREAS, City desires to engage Consultant to render the professional services in connection therewith, and Consultant is willing to provide such services; NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the parties hereto do hereby mutually AGREE as follows: SCOPE OF ENGAGEMENT Generally, Consultant will perform all usual and necessary legal services as Bond Counsel in connection with the authorization, issuance, and delivery of the Bonds as authorized and requested by City. Specifically, Consultant will prepare and direct the legal proceedings and perform the other necessary legal services with reference to the authorization, issuance and delivery of the Bonds, including the following: 1. Prepare all resolutions, ordinances, and other instruments pursuant to which the Bonds will be authorized, issued, delivered and secured, including election proceedings, if necessary, in cooperation and upon consultation with the City Council, their consultants, and other legal and financial advisors and consultants of City. 2. Attend meetings of the City Council with reference to the authorization and issuance of the Bonds to the extent required or requested. 2of14 EXHIBIT 4 3. Cooperate with the City Council and all other interested parties in the sale of the Bonds to the purchasers, and review bond purchase agreements. 4. Review those sections of any official statement to be disseminated in connection with the sale of the Bonds which describe the Bonds, the resolution or ordinance pursuant to which they will be issued and the tax-exempt treatment of the interest on the Bonds for purposes of federal income taxation. 5. If requested, assist City in presenting information to bond rating organizations and providers of credit enhancement relating to legal issues affecting the issuance of the Bonds. 6. Submit the Bond transcript to the Public Finance Division of the Attorney General's office and obtain all necessary approvals. 7. Supervise the execution of the Bonds and the delivery thereof to the purchasers. When so delivered, give Consultant's approving opinion covering the validity of the Bonds and the exemption of interest thereon from federal income taxes, it being understood that the approving opinion will be fully acceptable nationally in regular commercial investment banking bond marketing channels. Consultant services as Bond Counsel do not include any responsibility for investigating the financial condition and affairs of City. Consultant's approving legal opinion as Bond Counsel will contain a paragraph substantially to the effect that Consultant has acted as Bond Counsel for City for the sole purpose of rendering an opinion with respect to the legality and validity of the Bonds under the Constitution and laws of the State of Texas, and with respect to the exemption of the interest on the Bonds from federal income taxes, and for no other reason or purpose. The paragraph will also disclose that Consultant has not been requested to investigate or verify, and have not investigated or verified, any records, data, or other material relating to the financial condition or capabilities of City, and has not assumed any responsibility with respect thereto. ATTORNEY-CLIENT RELATIONSHIP Upon execution of this engagement letter, City will be Consultant's client and an attorney- client relationship will exist between City and Consultant. Consultant further assume that all other parties in a Bond transaction understand that Consultant represents only City in the transaction, Consultant is not counsel to any other party, and Consultant is not acting as an intermediary among the parties. Consultant services as Bond Counsel are limited to those contracted for in this Contract; City's execution of this Contract will constitute an acknowledgment of those limitations. Consultant's representation of City will not affect, however, Consultant's responsibility to render an objective bond approving opinion described in paragraph 7 above. 3ofI4 EXHIBIT 4 INDEMNITY AND INDEPENDENT CONTRACTOR RELATIONSHIP Consultant shall perform all services as an independent contractor not under the direct supervision and control of City. Nothing herein shall be construed as creating a relationship of employer and employee between the parties. City and Consultant agree to cooperate in the defense of any claims, actions, suits, or proceedings of any kind brought by a third party which may result from or directly or indirectly arise from any negligence and/or errors or omissions on the part of Consultant, or from any breach of Consultant's obligations under this Contract. In the event any litigation or claim is brought under this Contract in which City is joined as a party, Consultant shall provide suitable counsel to defend City and Consultant against such claim; provided however, that City shall have the right to proceed with competent counsel of its own choosing. Consultant agrees to defend, indemnify and hold harmless City and all of its officers, attorneys, agents, servants, and employees against any and all such claims to the extent not otherwise covered by Consultant's professional liability policy. Consultant agrees to pay all expenses, including but not limited to attorney fees, and satisfy all judgments that arise under such third party claims, but are not otherwise satisfied by Consultant's professional liability insurance policy. Nothing herein constitutes a waiver of any rights or remedies City may have to pursue under either law or equity, including, without limitation, a cause of action for specific performance or for damages, a loss to City resulting from Consultant's negligent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved. Consultant shall maintain and shall be caused to be in force at all times during the term of this Contract, a legally binding policy of professional liability insurance, issued by an insurance carrier approved to do business in the State of Texas by the State Insurance Commission, which carrier must berated by Best Rated Carriers, with a rating of "A" or higher. Such coverage shall cover any claim hereunder occasioned by Consultant's negligent professional act and/or error or omission, in an amount not less than $500,000 combined single limit coverage occurrence. In the event of change or cancellation of the policy by the insurer, Consultant hereby covenants to immediately advise City thereof; and in such event, Consultant shall, prior to the effective date of change or cancellation, serve a substitute policy furnishing the same coverage to City. Consultant shall provide a copy of such policy and the declarations page of the existing policy to City through its City Attorney, simultaneously with the execution of this Contract. FIRM NOT A MUNICIPAL ADVISOR As a consequence of the adoption of Rule 1513al-1 pursuant to the Securities Exchange Act of 1934 (the "Municipal Advisor Rule"), which has been promulgated by the Securities and Exchange Commission as a result of the enactment of the Dodd -Frank Wall Street Reform and Consumer Protection Act (the "Dodd -Frank Act"), Consultant hereby informs City that Consultant is not a "Municipal Advisor" within the meaning of the Municipal Advisor Rule or the Dodd -Frank Act (collectively, the "MA Rule"). In the course of performing Consultant's services as Bond Counsel in a transaction, Consultant may engage in analysis, discussion, negotiation, and advice to City regarding the legal ramifications of the structure, timing, terms, and other provisions of the financial transaction that culminates with the planned issuance of the Bonds, and such services and 4of14 EXHIBIT 4 advice may be essential to the development of the plan of finance for the issuance of the Bonds. In turn, these services become, among other things, the basis for the transaction's basic legal documents, the preparation and delivery of the official statement or any other disclosure document that describes the material terms and provisions of the transaction, if an offering document is used in the offering of the Bonds, the preparation of the various closing Bonds that embody the terms and provisions of this transaction and the preparation and delivery of Consultant's legal opinion. Moreover, legal advice and services of a traditional legal nature in the area of municipal finance inherently involve a financial advice component, but Consultant hereby advises City that while Consultant has expertise with respect to the legal aspects relating to the issuance of municipal securities, Consultant is not a "financial advisor" or "financial expert" in a manner that would subject us to the provisions of the MA Rule. As Bond Counsel, Consultant provides only legal advice, not purely financial advice that is not inherent in Consultant's legal advice to City. The City should seek the advice of its financial advisor with respect to the financial aspects of the issuance of the Bonds. By signing this Contract, City acknowledges receipt of this information, and evidences its understanding of the limitations of Consultant's role to City as Bond Counsel with respect to the MA Rule, as discussed in this paragraph. CONFLICTS As City is aware, Consultant represents many political subdivisions and investment banking firms, among others, who do business with political subdivisions. It is possible that during the time that Consultant is representing City, one or more of Consultant's present or future clients will have transactions with City. It is also possible that Consultant may be asked to represent, in an unrelated matter, one or more of the entities involved in the issuance of the Bonds. Consultant does not believe such representation, if it occurs, will adversely affect Consultant's ability to represent City as provided in this letter, either because such matters will be sufficiently different from the issuance of the Bonds so as to make such representations not adverse to Consultant's representation of City, or because the potential for such adversity is remote or minor and outweighed by the consideration that it is unlikely that advice given to the other client will be relevant to any aspect of the issuance ofthe Bonds. Execution of this Contract will signify City's consent to Consultant's representation of others consistent with the circumstances described in this paragraph. FEES AND OTHER SERVICES The fee covering the legal services of Consultant, as Bond Counsel, for the issuance of traditional Bonds of City, such as general obligation bonds, certificates of obligation and utility system revenue bonds, in one or more installments, is as follows: $5,000 for the first $1,000,000 of Bonds; $1.00 per $1,000 of Bonds for the next $9,000,000 of Bonds; $0.95 per $1,000 of Bonds for the next $30,000,000 of Bonds; $090 per $1,000 of Bonds for the next $60,000,000 of Bonds; and $0.50 per $1,000 of Bonds thereafter. 5of14 EXHIBIT 4 For special Bond issuances, such as special assessment revenue bonds, fees for legal services will be set at an amount agreed upon by Consultant and City at such time the bond issuance is contemplated. Also, Consultant would expect to be reimbursed for Consultant's actual out-of-pocket expenses reasonably and necessarily incurred in connection with the authorization, issuance, and delivery of such Bonds, i.e. travel, photocopies, courier, Form 8038G filing, Texas Bond Review Board filing and the Attorney General's filing fee. Consultant's fees and expenses will be payable within 30 days after the delivery of and payment for such Bonds, but Consultant's fees are wholly contingent upon actual delivery of such Bonds. The foregoing legal services as Bond Counsel do not include any direct responsibility for any kind of litigation. However, if during the issuance of Bonds any litigation should develop regarding the issuance of the Bonds or the provisions made for their payment or security, Consultant will consult, advise, and cooperate with City and its attorneys concerning any such litigation. Consultant's fees for such services would be based upon the customary hourly billing rates of the attorneys providing such additional services. The firm will undertake upon the request of City such services as may be necessary to assist City in satisfying the continuing disclosure requirements of Rule 15c2-12 promulgated by the Securities and Exchange Commission or any necessary disclosure obligations of City in connection with the issuance of Bonds. Consultant's fees for such services would be based upon hourly billing rates of the attorneys providing such services, and such rates shall be $375.00 per hour for partners and $275 per hour for associates. Should it be necessary for Consultant to render a written opinion with respect to such matters, such fee for legal services provided in connection with the delivery of the opinion will be set at an amount agreed upon by us and City. The parties anticipate invoices or statements for services billed at hourly rates will be generated on a monthly basis and that said invoices or statements will be sent on or about the I' day of each month. City shall make payment to Bond Counsel within 30 days of the satisfactory completion of services and receipt of an itemized invoice or statement. All reimbursable expenses, including, but not necessarily limited to travel, lodging, and meals shall be paid at the actual cost, pursuant to the terms, conditions, and limitations hereinabove set forth. All invoices and bills shall be approved for payment by the Finance Department. All notices, billing statements and invoices shall be made in writing and may be given by personal delivery, by email or by mail. Notices and invoices sent by email shall be addressed to: accounts a able a -cit ofdenton.com with a copy to antonio.puente@cityofdenton.com, and by mail shall be addressed to: Accounts Payable, 215 East McKinney, Denton, Texas 76201 with a copy to Tony Puente, Assistant Finance Director, 215 East McKinney, Denton, Texas 76201. When by mail and so addressed, the notice, invoice, and/or payment shall be deemed given upon deposit in the United States Mail, postage prepaid. In all other instances, notices, invoices, and/or 6 of 14 EXHIBIT 4 payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the responsible person or office to whom notices, invoices, and/or payments are to be sent, provided reasonable written notice is given. RECORDS At City's request, papers and property furnished by City will be returned promptly upon receipt of payment for outstanding fees and client charges. Consultant's own files, including lawyer work product, pertaining to the transaction will be retained by us. For various reasons, including the minimization of unnecessary storage expenses, Consultant reserves the right to dispose of any documents or other materials retained by us after the termination of this engagement. TERM The term of this agreement shall commence on March 27, 2017, and conclude on March 25, 2022. Until March 27, 2017, the Bond Counsel engagement letter agreement dated February 21, 2012 and the terms thereof shall remain in effect. TERMINATION OF AGREEMENT In connection with the work outlined in this Contract, it is agreed and fully understood by Consultant that City may cancel or indefinitely suspend further work hereunder or terminate this Contract at any time upon written notice to Consultant, and Consultant shall cease all work and labor being performed under this Contract upon receipt of such notice. Consultant may terminate this Contract by giving City 30 day's written notice that Consultant is no longer in a position to continue representing City. Consultant shall invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Contract. All reports and other documents, or data, or work related to the project shall become the property of City upon termination of this Contract. This Contract may be terminated in whole or in part, in writing, by either party in the event of substantial failure by the other party to fulfill its obligations under this Contract through no fault of the terminating party. Provided, however, that no such termination maybe effected, unless the other party is given [1] written notice (delivered by certified mail, return receipt requested) of intent to terminate, and not less than 30 calendar days to cure the failure; and [2] an opportunity for consultation with the terminating party prior to termination. Nothing contained herein or elsewhere in this Contract shall require City to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Contract. 7of14 EXHIBIT 4 AUDITS AND INSPECTION City shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. Consultant shall retain such books, records, documents and other evidence pertaining to this agreement during 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 10 business days of written request. Further, Consultant shall also require all subconsultants, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow 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 City unless the audit reveals an overpayment of I % or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by Consultant which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this Contract and shall constitute, in 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. COMPLIANCE WITH LAWS Consultant shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereafter be amended, including but not limited to the Texas Disciplinary Rules of Professional Conduct. GOVERNING LAW For the purpose of determining place of agreement and law governing same, this Contract is entered into in the City and County of Denton, State of Texas, and shall be governed by the laws of the State of Texas. Venue and jurisdiction of any suit or cause of action arising under or in connection with this Contract shall be exclusively in a court of competent jurisdiction sitting in Denton County. DISCRIMINATION PROHIBITED In performing the services required hereunder, Consultant shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 8of14 EXHIBIT 4 ASSIGNABILITY Consultant shall not assign any interest in this Contract and shall not transfer any interest in this Contract (whether by assignment, novation, or otherwise) without the prior written consent of City thereto. SEVERABILITY All agreements and covenants contained herein are severable, and in the event any of them, with the exception of those contained in sections headed "Scope of Engagement', "Indemnity and Independent Contractor Relationship," and "Fees and Other Services" hereof, shall be held to be invalid by any court of competent jurisdiction, this Contract shall be interpreted as though such invalid agreements or covenants were not contained herein. RESPONSIBILITIES FOR CLAIMS AND LIABILITY Approval by City shall not constitute nor be deemed a release of the responsibility and liability of Consultant for the accuracy and competency of its work; nor shall such approval be deemed to be an assumption of such responsibility of City for any defect in any report or other documents prepared by Consultant, its employees, officers, agents and consultants. MODIFICATION OF AGREEMENT No waiver or modification of this Contract or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Contract, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid; and, the parties further agree that the provisions of this section will not be waived as herein set forth. CAPTIONS The captions of this Contract are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Contract. BINDING EFFECT This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns where permitted by this Contract. 9of14 EXHIBIT 4 IN WITNESS HEREOF, the City of Denton, Texas, has caused this Contract to be executed by its duly authorized City Manager, and Consultant has executed this Contract through its duly authorized undersigned partner. ACCEPTED THIS THE DAY OF OCTOBER, 2016. McCALL, PARKHURST & HORTON L.L_P. By: -A Greg . Schaecher Email. r s c -k e C �� N1,�Q�� C, (. CC) 44-1 Phone: " ���� CITY OF DENTON, TEXAS IM ATTEST: JENNIFER WALTERS, CITY SECRETARY I 3 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY HOWARD MARTIN, CITY MANAGER 10 of 14 EXHIBIT 4 Contract #6254 Exhibit A Consultant's Statement of Qualifications 11 of 14 Statement of Qualifications for Bond Counsel Services to City of Denton, EXHIBIT 4 COVERLETTER September 22, 2016 Antonio Puente, Jr., Assistant Director of Finance City of Denton 215 East McKinney Street Denton, Texas 76201 Dear Mr. Puente: On behalf of McCall, Parkhurst & Horton L.L.P. ("McCall," the "firm," or "us"), I submit this statement of qualification for bond counsel services to the City of Denton, Texas ("you" or the "City") . McCall serves as bond counsel to more issuers of tax-exempt debt than any other law firm in the State of Texas or in the Southwestern United States. Accordingly, we serve as bond counsel to more Texas political subdivisions than any other lawyer or law firm. We are consistently ranked by Thompson Reuters among the top ten bond counsel firms in the United States, as well as the number one bond counsel firm here in Texas. McCall frequently serves as bond counsel on more bond transactions than any other law firm in the country. For over 90 years, we have been committed to providing Texas political subdivisions with quality bond counsel services, and we hereby reaffirm our commitment to provide the City with such services to the best of our collective abilities. Investment banks, local and state government agencies, financial advisors and other professionals rely on us daily to guide them through the most basic, and the most complicated, financings in the State of Texas and in the United States. We are confident that our level of service to you will be unmatched. Very truly yours, McCall, Parkhurst & Horton L.L.P. By. Gregory C. Schaecher Enclosures Page 1 2 EXHIBIT 4 EXECUTIVE SUMMARY McCall, Parkhurst & Horton L.L.P. ("McCall") has practiced exclusively in the area of public finance law since the firm's creation in 1919. The firm's opinion (as to the validity and enforceability of a public entity's debt obligations and, later, tax exemption) was the first given by a Texas firm accepted in the national securities markets. We are the only law firm in Texas, and one of a few law firms nationwide, that specialize solely in the field of public finance. The firm is composed of 27 active attorneys located in Dallas, San Antonio, and Austin. McCall is the leading bond counsel in Texas and routinely ranks in the top ten bond counsel firms nationally. Historically, the firm has served as bond counsel for more issuers of public securities than any other law firm in the southwestern United States, and in some years, McCall has served as bond counsel on more bond transactions than any other law firm in the country. Our high national ranking is not only an indication of the stature of the firm in the public finance industry, but more importantly, an indication of the depth and breadth of our practice. We consistently achieve our high rankings by holding ourselves to the highest standards of technical expertise, professional dedication, client service and ethical responsibility. McCall represents some of the largest and most sophisticated issuers in the country, including the Cities of Austin, Dallas and Fort Worth, the Dallas/Fort Worth International Airport, the North Texas Tollway Authority, the Texas Department of Transportation, the Texas Water Development Board, the University of Texas System, Texas A&M University System, Texas State University System, and many more. McCall has been a leader in drafting legislation and developing innovative financing techniques in Texas for nearly a century. The following tables summarize the number of transactions and dollar value of public finance issues for which McCall has served as bond counsel in recent years: National and State Rankinpl National Texas Ranking Year Rank Pat Amount No. of Issues ��y Rank ��4bvPar Amount No. of Issues 104 Wo 2014 3 $13,135,500,000 359 1 $13,022,000,000 347 2013 6 $10,245,200,000 363 1 110,218,400,000 352 2012 7 $10,411,000,000 359 1 $10,234,000,000 350 2011 8 $6,941,800,000 291 1 $6,760,100,000 283 2010 7 $11,467,000,000 360 1 $11,419,300,000 355 2009 5 $9,390,700,000 258 1 $9,206,700,000 230 2008 6 $11,276,400,000 238 1 $11,215,000,000 229 2007 8 $9,221,500,000 292 2 $7,703,400,000 232 2006 5 $10,992,000,000 282 1 $10,961,200,000 271 2005 8 $8,770,900,000 310 1 $8,677,000,000 295 ' As reported by Thomson Reuters in its US Municipals Review; excludes private bank placements and remarketing of variable rate demand obligations. Page 13 EXHIBIT 4 ' Source: Thomson Reuters US Municipals Review. ?age 14 2015 Top Ten National Firms by Volume' by Volume' Rank Firm Par amount No. of Issues 1 Orrick Herrington & Sutcliffe LLP $37,545,100,000 391 2 Hawkins Delafield & Wood LLP $23,077,800,000 396 3 McCall Parkhurst & Horton LLP $14,502,800,000 436 4 Norton Rose Fulbright $13,398,400,000 368 5 Kutak Rock LLP $13,334,300,000 412 6 Gillmore & Bell PC $ 9,127,800,000 464 7 Ballard Spahr LLP $ 8,938,900,000 134 8 Sidley Austin LLP $ 8,540,700,000 43 9 Chapman and Cutler LLP $ 8,510,100,000 408 10 Squire Patton Boggs $ 8,468,300,000 194 ' Source: Thomson Reuters US Municipals Review. ?age 14 2Q14 op Ten National Firms by Volume' Rank Rank Furn Par .-amount No. of Issues 1 Orrick Herrington & Sutcliffe LLP $30,384,700,000 321 2 Hawkins Delafield & Wood LLP $16,441,100,000 301 3 McCall Parkhurst & Horton LLP $13,135,500,000 359 4 Kutak Rock LLP $9,955,000,000 305 5 Sidley Austin LLP $ 8,859,900,000 44 6 Stradling Yocca Carlson & Rauth, P.C. $ 8,391,400,000 139 7 Norton Rose Fulbright $ 8,136,700,000 324 8 Greenberg Traurig LLP $ 7,699,400,000 77 9 Squire Patton Boggs $ 7,650,600,000 181 10 Cha man and Cutler LLP 7 476,W%000 000 394 ' Source: Thomson Reuters US Municipals Review. ?age 14 2013 Top Ten National Firms by Volume' Rank Firm Par Amojjnt No. of Issues 1 Orrick Herrington & Sutcliffe LLP $31,543,300,000 310 2 Hawkins Delafield & Wood LLP $18,377,400,000 298 3 Kutak Rock LLP $13,349,100,000 283 4 Norton Rose Fulbright $12,920,100,000 351 5 Squire Sanders & Dempsey LLP $ 10,998,800,000 200 6 McCall Parkhurst & Horton LLP $10,245,200,000 363 7 Stradling Yocca Carlson & Rauth, P.C. $ 9,760,700,000 183 8 Sidley Austin LLP $ 6,913,500,000 42 9 Nixon Peabody LLP $ 6,621,900,000 70 10 Cha man and Cutler LLP 5 814 700 000 442 ' Source: Thomson Reuters US Municipals Review. ?age 14 2012 Top Ten National Firms by Volume' Rank Firm Par Amount No. of Issues 1 Orrick Herrington & Sutcliffe LLP $30,826,300,000 366 2 Hawkins Delafield & Wood LLP $23,179,100,000 360 3 Sidley Austin LLP $15,164,100,000 71 4 Kutak Rock LLP $14,21$,000,000 334 5 Fulbright & )aworski LLP $12,857,600,000 369 6 Squire Sanders & Dempsey LLP $10,$06,800,000 217 7 McCall Parkhurst & Horton LLP $10,411,000,000 359 8 Nixon Peabody LLP $9,067,200,000 61 9 Foster Pepper PLLC $7,151,300,000 112 10 GreenLwr I Trautig LLP __$7,052,000,000 $9 ' Source: Thomson Reuters US Municipals Review. ?age 14 EXHIBIT 4 I Source: Thomson Reuters, as published in The Bond Buyeron March 1, 2016. '- Source: Thomson Reuters, as published in The Bond Buyeron February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. a Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 2015 Top Five Texas Firms by Volume' Rank Firm PU Amount 1 McCall, Parkhurst & Horton L.L.P. $14,722,400,000 2 Norton Rose Fulbright LLP $ 7,558,300 000 3 Bracewell & Giuliani LLP $ 6,227,200,000 4 Andrews Kurth LLP $ 6,195,800,000 5 Escamilla & Poneck LLP $ 1,513,400 I Source: Thomson Reuters, as published in The Bond Buyeron March 1, 2016. '- Source: Thomson Reuters, as published in The Bond Buyeron February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. a Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 2014 Top Five Texas Firms by Volumez Rank F= Par Amount 1 McCall, Parkhurst & Horton L.L.P. $13,022,000,000 2 Andrews Kurth LLP $ 6,084,900,000 3 Norton Rose Fulbright LLP $ 5,854,900,000 4 Bracewell & Giuliani LLP $ 5,091,100,000 5 Bates & Coleman P.C. $ 960,700 I Source: Thomson Reuters, as published in The Bond Buyeron March 1, 2016. '- Source: Thomson Reuters, as published in The Bond Buyeron February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. a Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 2013 Top Five Texas Firms Volurne3 Rank Firm Par Amount 1 McCall, Parkhurst & Horton L.L.P. $10,218,400,000 2 Norton Rose Fulbright LLP $ 6,433,500,000 3 Bracewell & Giuliani LLP $ 5,169,000,000 4 Andrews Kurth LLP $ 3,58i,400,000 5 Newby Davis PLLC $ 689,000 I Source: Thomson Reuters, as published in The Bond Buyeron March 1, 2016. '- Source: Thomson Reuters, as published in The Bond Buyeron February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. a Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 2012 Top Five Texas Firms by Volume4 Rank Firm Par Amount 1 McCall, Parkhurst & Horton L.L.P. $10,234,000,000 2 Fulbright & Jaworski LLP $9,429,000,000 3 Andrews Kurth LLP $ 4,324,600,000 4 Bracewell & Giuliani LLP $ 3,872,300,000 5 Escamilla, Poneck & Cruz, LLP $ 1,475,600,000 I Source: Thomson Reuters, as published in The Bond Buyeron March 1, 2016. '- Source: Thomson Reuters, as published in The Bond Buyeron February 24, 2015. 3 Source: Thomson Reuters, as published in The Bond Buyer on February 25, 2014. a Source: Thomson Reuters, as published in The Bond Buyer on February 12, 2013. Page 15 EXHIBIT 4 Listed below are some types of securities, whether issued pursuant to public sale, negotiated sale or private bank placements, for which McCall served as Bond Counsel in recent years: • Certificates of Obligation • General Obligation Refunding Bonds • Utility System Revenue Bonds • Tax Notes • Lease -Purchase Transactions • Build America Bonds • Public Improvement District Revenue Bonds • Municipal Management District Revenue Bonds • Public Facility Corporation Lease Revenue Bonds • Public Property Finance Contractual Obligations • Energy Savings Contracts Page 16 EXHIBIT 4 The firm is generally organized into two departments, which can be described as follows: Bond Counsel and Securities Department. The majority of the attorneys in the firm serve as bond counsel and securities counsel. As bond counsel, these attorneys analyze applicable state and local laws that apply to the various debt issues and draft all legal documents necessary to permit the lawful issuance of debt. The attorneys of the firm work on hundreds of public bond issues in a given year, spanning the spectrum of the debt instruments sold in the public debt markets. Many of the instruments now commonly issued in Texas and the laws under which they are issued were developed by attorneys in the firm, such as commercial paper notes, forward refundings, interest rate swaps, and various forms of lease -purchase obligations for cities, counties and school districts. These attorneys are also experts in the securities laws that apply to states and their agencies and political subdivisions in connection with the issuance of debt instruments. In representing either the issuer or the underwriters, their primary responsibility is to draft the Official Statement or other offering document, and to perform due diligence to ascertain that all material information related to the issuer and the bonds have been properly disclosed in the Official Statement. Tax Department. The second group (comprised of two attorneys and a paralegal) specializes in the federal tax laws and their application to public finance. One critically important aspect of examining the qualifications of a municipal bond firm is an in-depth examination of its tax department, especially when considering issuing novel debt instruments. Harold T. "Hal" Flanagan, the firm's senior tax partner, has over 35 years of experience (four of which were with Internal Revenue Service (the "IRS") in Washington, D.C.) specializing in federal income taxation of municipal bonds. As a result of his experience, Hal is familiar with the personnel and the procedures of the federal government that relate to the federal income tax laws that impact public finance. Along with the firm's ability to analyze detailed legal questions, McCall is able to provide an in-depth review of financial schedules and proposals, which is crucial when determining whether an issuer is compliance with the IRS's bond regulations. Page 17 EXHIBIT 4 The professional staff of McCall, Parkhurst & Horton L.L.P. is composed of 27 active attorneys. Each and every attorney practices exclusively in the area of public finance. The following table lists the name, position, location and years of experience as an attorney for each member of the professional staff: Name PositionYears 'on Experience Gregory C. Schaecher Partner Dallas Experience G. Charles Kobdish* Partner Dallas 42 Alan H. Raynor Partner Dallas 42 Jeffrey A. Leuschel Partner Dallas 35 L.E. (Ted) Brizzolara III Partner Dallas 35 Thomas K. Spurgeon Partner San Antonio 34 Dan S. Culver Partner Dallas 30 Carol D. Polumbo* Partner Austin 30 Gregory B. Salinas Partner Austin 26 Mark A. Malveaux Partner Dallas 23 Leroy Grawander, Jr.* Partner Dallas 38 Gregory C. Schaecher Partner Dallas 20 Richard S. Donoghue, Jr. Partner Austin 16 Joe Eckert Partner Dallas 18 Noel Valdez Partner San Antonio 15 J_ Bart Fowler* Partner Austin 17 Stefano Taverna Partner Dallas 13 Christopher A. Settle Partner Dallas 12 Jeff Gulbas Partner Dallas 9 Jana Edwards Partner Austin 10 Rodolfo Segura Jr .Associate Dallas 7 Nicole Kintop Smith Associate Dallas 11 Clayton Chandler Associate Austin 7 Hasan Mack associate Austin 5 Sam M. Gill Associate Dallas 8 Orlando Juarez, Jr. Associate San Antonio 5 Harold T. Flanagan Of Counsel Dallas 37 Kathy S. Cooper Legal Asst San Antonio N/A Victoria D. DiMaria Legal Asst Dallas N/A *Served as Assistant Attorney General of Texas in the Public Finance Division. Below are the names, titles, office locations and years of experience in the area of public finance for each of the persons to be assigned to the City's account: Name Title Office Location Experience Gregory C. Schaecher Partner Dallas 20 years Stefano J. Taverna Partner Dallas 13 years Brief resumes for each of the above -listed attorneys follows: Page 18 EXHIBIT 4 GREGORY C. SCHAECHER i Gregory "Greg" Schaecher has been a partner at McCall, Parkhurst & Horton L.L.P. since February 2006. Greg was a senior associate for three years with Fulbright & Jaworski LLP in its Dallas public finance group prior to joining McCall. At Fulbright & Jaworski, and now at McCall, Greg has served as bond counsel, underwriters counsel, and disclosure counsel for local government financings. Greg has experience with tax-exempt and taxable securities transactions for cities, counties, school districts, tollway authorities, economic development corporations, and other political subdivisions in Texas, including ad valorem tax financings, tax increment financings, utility revenue financings, transportation financings, auction and variable rate financings, interest rate swap agreements, and private placements. Transactions range from less than $1 million to more than $5 billion. Greg has worked on all the North Texas Tollway Authority financings since February 2006 as bond and disclosure counsel. Previously, Greg was a senior associate for six years at Kutak Rock LLP in Omaha, Neb. While at Kutak Rock, Greg concentrated his practice on representing a financial guaranty insurance company in all aspects of public finance and structured finance transactions, including consumer loans, student loans, utilities, waste -to -energy facilities, sports and recreation facilities, health care, and transportation. Transactions ranged from $10 million to more than $1 billion and included public and private placements, variable rate demand, auction rate and commercial paper financings, and senior/ subordinate structures. While at Kutak Rock, Greg acted as creditor counsel on the 1998 Miami Heat American Airlines Arena financing, the 1999 Kansas City International Speedway financing, and the 2001 financings for the Houston Texan Reliant Stadium and Houston Rockets Toyota Center Arena. Greg also acted as creditor counsel for the 1997 Colorado E-470 toll road financing and the 1999 Virginia Dulles Greenway toll road financing. Greg obtained his juris doctorate from the Creighton University School of Law in Omaha, Neb., graduating magna cum laude in 1996. Greg was an assistant editor of the law review while at Creighton. Greg received his bachelor of science degree in business administration with a concentration in accounting from the University of Nebraska at Omaha, graduating summa cum laude in 1993. Page 19 EXHIBIT 4 Stefano Taverna, a partner of the firm, practices exclusively in the area of federal income taxation of tax-exempt and tax - credit bonds. Stefano provides tax advice to issuers and underwriters regarding tax-exempt bond financings involving new money projects, current and advance refundings, capital and working capital financings, commercial paper issues, and pooled bonds. He guides clients with respect to the structuring of tax-exempt bonds, private activity bonds, qualified school construction bonds, recovery zone bonds, qualified zone academy bonds, and other types of tax -credit bonds. Stefano also represents numerous clients before the Internal Revenue Service in connection with audits of tax-exempt and tax -credit bonds, Voluntary Compliance Agreements, and other administrative proceedings. Prior to joining the firm, Stefano was a tax attorney at two law firms with an established Wall Street presence. Stefano has served as bond counsel, underwriters' counsel and special tax counsel for numerous financing transactions throughout the country. Additionally, Stefano has advised clients on the federal and state tax aspects of domestic and international hedge fund formations and operations, mergers, acquisitions and reorganizations, public and private debt and equity offerings, and general corporate, partnership and investment issues. Stefano has represented numerous clients on swap transactions and has advised tax-exempt entities with regard to the federal and state tax implications related to their formation and operations. Prior to joining private practice, Stefano clerked for the Honorable O'C. `Y/efing, Appellate Division, Superior Court of the State of New jersey. Stefano is a graduate of Rutgers, the State University of New Jersey (B.A., summa cum laude), Brooklyn Law School (J.D.) and New York University School of Law (LL.M.). He is admitted in New York and New Jersey and is a member of the American Bar Association, the New York State Bar Association, and the National Association of Bond Lawyers. Stefano has been a speaker and panelist at various events, including panels on public finance and federal tax matters. In addition, Stefano is a past Editor -in -Chief of the National Association of Bond Lawyers treatise "federal Tavaiion of Municipal Bonds", and is the Vice Chair of the Tax -Exempt Finance Committee of the American Bar Association. Page 1 10 EXHIBIT 4 Many of our attorneys have previously worked in the Office of the Texas Attorney General — Public Finance Division (the "Division"). Leroy Grawunder and Chuck Kobdish, partners in our Dallas office, and Carol Polumbo and Bart Fowler, partners in our Austin office, have previously served as attorneys in the Division. This prior experience gives our firm tremendous institutional knowledge of public securities. We frequently are asked by the Division to submit briefs, position statements and proposed rules regarding legal analysis of issues that are salient to the Division. McCall maintains a fully open and honest relationship with the Division, facilitating the Division's review and approval of a large number of innovative financings for which McCall served as bond counsel. Our ethical responsibilities require us to share all information with the Division, including facts that may be negative, and adherence to our ethics have fostered a strong and professional relationship with the Division. McCall also communicates daily with the credit rating agencies with respect to the firm's more complex financing transactions, especially those involving either credit enhancement or derivative financial products, such as interest rate swaps. As an industry leader, McCall's relationships with the rating agencies are strong and based upon mutual respect. The rating agencies recognize McCall's thorough understanding of the nuances of municipal finance, allowing us to work collaboratively with them to simplify the review process. The firm has worked with all of the major credit rating agencies, bond insurers, and credit enhancers. Page 1 11 EXHIBIT 4 INNOVATION OF McCALL "Throughout the years, McCall has been responsible for major innovations in our field. One of the main strengths of McCall is our ability to draw upon our attorneys' many years of broad experience to devise unique solutions to our clients' problems. McCall has been a leader in drafting legislation and developing innovative financing techniques for use by political subdivisions in Texas. Members of the firm have played major roles in: • drafting what is now Chapter 1371 of the Texas Government Code. That far -teaching legislation resulted in the introduction of a number of new financial products to the Texas public finance arena, including commercial paper, letter -of -credit and line -of -credit backed bond issues for political subdivisions, and interest rate swap agreements; • developing and serving as Bond Counsel for the First issuance of short-term commercial paper notes, which allow eligible political subdivisions to issue debt at low interest rates to finance capital improvements; • originating the concept of the issuance of contractual obligations for cities, counties, and school districts; • structuring economic development and redevelopment programs throughout the State, including the redevelopment of Robert Mueller Airport in Austin; • development of convention center hotels in Austin, Dallas, Fort Worth, and San Antonio; • thorough revision of the laws regarding the investment of public funds in Texas; and • drafting the legislation that resulted in amendments to the Texas Constitution authorizing the Economic Distressed Areas and Water Infrastructure Fund programs administered by the Texas Water Development Board and the establishment of Texas Water Development Fund II, as well as the amendment to the Texas Constitution establishing a $6 billion evergreen bond authority for the Texas Water Development Fund II. In addition, the firm played a major role in assisting the Texas Legislative Council in the preparation and review of the bill that codified numerous public -finance -related statutes into the Public Securities Title of the Government Code, and contained amendments that clarified and streamlined public finance laws that have been in effect, in some cases, for more than 75 years. McCall was also a leader in financing public infrastructure projects under the provisions of the American Recovery and Reinvestment Tax Act of 2009. The firm's attorneys acted as both bond counsel and underwriters counsel in numerous transactions for taxable Build America Bonds under such legislation, including serving as bond counsel on more than $3.1 billion of Build America Bonds for state transportation -related financings. ------------------------ Page 1 12 EXHIBIT 4 Contract #6254 Exhibit B Contractor's Business Information 12 of 14 c Itl r W DENTON EXHIBIT 4 City of Denton Purchasing 901-B Texas St. Denton, TX 76209 Phone: (940) 349-7100 Fax: (940) 349-7302 www.denton urch sin .com Substitute W-9 Form The IRS requires all vendors to complete a W-9 Form. The information on this form must be filled out, signed and submitted by a vendor representative, All information must be completed before a purchase order or payment will be issued. Name as shown on your income tax return: McCall, Parkhurst & Horton L.L.P. Tax ID/Social Security #: 75-0799392 Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxtaxpayer identification number (or I am waiting for a number to be issued to me), and 2. 1 am not subject to backup withholding because (a) I am exempt from backup witholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. 1 am a US citizen or otherhl.5. person -for fededral tax purposes as defined at the bottom of this page". n_ Authorized Signature Printed Name: Gre o C. Schaecher Maillnst Address: Company Name: McCall, Parkhurst & Ilorton L.L.P. Contact Name: Gregory C. S&aecher Address: 717 N Harwood, Suite 900 Dallas, Texas 75201 Email: _schacchcr@mphlegal.com Websile: www.mphlegal.com Phone Number: (214) 7.54-9200 Fax Number (214) 754-9250 Ch ck appropriate box for federal tax classification (required): Individual! Limited ❑ Sole ❑ Corporation Partnership ❑ LiabilityEDOther Proprietor Corporation Please specify: Must designate C or S ❑ C Exempt Business Type Real Eatata Equipment YP [] RentaYLease tA1) ❑ ReriallLease (A-9) ❑ Royalt!es (A-2) ❑ Medical/Health Care (A-6) Services Only (A- Merchandise- Merchandise a ❑ T, ❑ Goods Only (A-7) ❑ Services (A-7) ❑ Lega FirrnlAtlorney (A -C:) Consultanl/Prof Proceecs from Fees (A-7) Real Estate Purchases (S) Type of OrIi411F10flty ganization. ❑ Minod ElFemale Owned ElNon Profit E:Historically Underutilized Ow Business 'Definition of a U.S. Person -For Federal Tax purposes, you are considered a U.S. person if you are: (a) an individual who is a U.S. citizen or U.S. resident (b) a partnership, corporation, company, or association created or organized in the United States or under the laws of the United States (c) an estate (other than a foreign estate), or (d) a domestic trust (as defined in Regulations Section 301.7701-7). con Page 1 9123/2011 EXHIBIT 4 Vendor Information Not RegUirgd for W-9 Form Remit Address fif different from above Company Name: Contact Name: Address: Email: Phone Number: Fax Number. List Products and/or Services interested in Bidding; For Internal Use Only ❑ New Vendor ❑ Vendor Change ❑ Refund Requesting Department: Department Represertative (Printed Namef Purchasing Signature ACH Information -Voluntary ABA Routing#: 1113-2299-4 Contact Name: Judi L. Mead Bank Account# 4000001208 Bank Name: plainsCapital Bank ACH Email: __Lmead@mphlegal,com ACH Email: Phone Number (214) 754-9249 Fax Number: (214) 754-9250 Vendor Number Date: Date: I (we) authorize the City of Denton to deposit payments Into the checking account listed. The authority remains in effect until the City of Denton has received written notification from me of termination in time to allow reasonable opportunity to act on it, or until the City of Denton has sent me written notice of termination of the agreem L Vendor Signature fx�—• Print Namerritle Gregory C. Schaecher/Partner Date 11/08/16 CCD Page 2 9/2312011 Corporations Section EXHIRLT 4 P.O.Box 13697 �'Ct'� �F� Austin, Texas 78711-3697 4) CID Office of the Secretary of State May 19, 2016 Law Offices McCalI, Parkhurst & Horton, LLP 717 North Harwood, Ninth Floor Dallas, TX 75201 USA RE: MCCALL, PARKHURST & HORTON L.L.P. File Number: 500026324 Carlos H. Cascos Secretary of State It has been our pleasure to file the Annual Report for the referenced entity. Enclosed is the certificate evidencing filing. Payment of the filing fee is acknowledged by this Ietter. If we may be of further service at any time, please let us know. Sincerely, Corporations Section Business & Public Filings Division (512) 463-5555 Enclosure Come visit us on the Internet at hup://www.sos.state. ix. us/ Phone: (512)463-5555 Pax: (512) 463-5709 Dial: 7-1-1 for Relay Services Prepared by: Serita Rangel TID: 10323 Document: 671528420002 Corporations Section P.O.Box 13697 Austin, Texas 78711-3697 EXHIBIT 4 CSD ��� Y c., Office of the Secretary of State Packing Slip Law Offices McCall, Parkhurst & Horton, LLP 717 North Harwood Ninth Floor Dallas, TX 75201 Batch Number: 67152842 Client 1D: 108746874 Document Number Document Detail 671528420002 Annual Report Payment Type Payment Status Check Received Batch Date: 05-16-2016 Return Method: Mail Carlos H. Cascos Secretary of State Page Number / Name Count MCCALL, PARKHURST & 0 HORTON L.L.P. Payment Reference 70993 Total Fees: Total: Total Amount Charged to Client Account: (Applies to documents or orders where Client Account is the payment method) May 19, 2016 Page I of 1 Fee $3800.00 $3,800.00 Amount $3,800.00 $3,800.00 $0.00 Note to Customers Paying by Client Account: This is not a bill. Payments to your client account should be based on the monthly statement and not this packing slip. Amounts credited to your client account may be refunded upon request. Refunds (if applicable) will be processed within 10 business days. User ID: SRANGEL Come visit us on the Internet @ h#p:Avww.sos. state,tx.us/ Phone: (512) 463-5555 FAX: (512) 463-5709 Dial: 7-1-1 for Relay Services Corporations swion P.O. Box [3697 Austin. Tcras 787[ 1-3697 EXHIBIT 4 PLEASE NOTE: Photic: 512463-5555 Fax: 512-463-5709 Dial 7-1-1 For May Scrviccs wW W.SQS_State_ tx. us The enclosed certificate Is your official certificate of filing, which can be used as evidence of filing_ If you would like a file -stamped copy of the document you submitted, you may obtain it by contacting the certifying section ift one of the following ways: - Phone: (512) 463=5578 Pax: (512) 463-2512 Mail: P.O. Box 13697, Austin, TX 78711 Email: corpcert(a),sos_wxas_gov C6 -1m, You may access the documents through our online system SOSDirect. A statutorily authorized $1.00 search fee will be assessed. The search fee is waived if an order or filing is submitted on results of the search. For instructions on how -to order online, please email copies@sos_texas_gov_ Corporations Section EXHLUIT 4 P.O-Box 13697 �'� z OP Austin, Texas 78711-3697 w s Office of the Secretary of State CERTIFICATE OF FILING OF MCCALL, PARKHURST & HORTON L.L.P. File Number: 500026324 Carlos H. Cascos Secretary of State The undersigned, as Secretary of State of Texas, hereby certifies that the Annual Report for the above named entity has been received in this office and has been found to conform to the applicable provisions of law. ACCORDINGLY, the undersigned, as Secretary of State, and by virtue of the authority vested in the secretary by law, hereby issues this certificate evidencing filing effective on the date shown below. Dated: 05/16/2016 Effective: 05/16/2016 �,� �II� r���fi• 0"ue Carlos H. Cascos Secretary of State Come visit us on the internet at http://www.sos.state.tx.usl Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-I-1 for Relay Services Prepared by: Serita Rangel TID: 10307 Document: 671528420(10') EXHIBIT 4 Contract #6254 Exhibit C Certificate of Insurance 13 of 14 EXHIBIT 4 ACORO' CERTIFICATE OF LIABILITY INSURANCE `-- 6/12/2017 I DATE IMMIDDrfYYYI 1 9/15/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER LOCKTON COMPANIES 2100 ROSS AVENUE, SUITE 1400 DALLAS TX 75201 214.969-6700 E: No Et), (AC, FAX No : E -MAL INRURERISI AFFORDING INSURER A: CireenW ich Insurance Connimny 22322 INSURED McCall, Parkhurst & Holton, LLP 1354736 717 N. Harwood #900 Dallas TX 75201 INSURER B INSURER C: I INSURER E INSURER F ' COVERAGES MCC A01 CERTIFICATE NUMBER: 124 4 R"I I N NUMBER V V V V V THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TM TYPE OF INSURANCE L SUBR POLICY NUMBER POLI POLICY EXP LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE XXXXXXX CLAIMS -MADE ❑OCCUR NOT APPLICABLE PREMGET N Jrrenc Ea XXXXXXX MED EXP tAny oneperson) XXXXXXX PERSONAL & ADV INJURY $ XXXXXXX GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE S XXXXXXX POLICY❑ JE O- F—] LOC PRODUCTS- COMPIOP AGG XXXXXXX OTHER; $ AUTOMOBILE LIABILITYBIN LM SINGLE LIMIT a acciden $ XXXXXXX ANY ATO NOT APPLICABLE BODILY INJURY (Per person? $ XXXXXXX LED BODILY FNJURY (Per accident S XXXXXXX A TO$ ONLY AUTO HIRED NON WINED AUTOS ONLY AUTO ONLY PROer PardenD G $ XXXXXXX $ UMBRELLA LIAR OCCUR EACH OCCURRENCE $ XXXXXXX EXCESS LIAB CLAIMS -MADE NOT APPLICABLE AGGREGATE $ XXXXXXX DED RETENTION $ $ VWURKERS COMPENSATION PER AND EMPLOYERS'LIABILITY YIN NOT APPLICABLE ER L. EACH ACCIDENT $ XXXXXXX ANYPROPRIETCRIPPRTNERiEXECUTiVE orFICEPIMEMBER EXCLUDED? N f A (f111— rnry In NR) Ifye destnbe under L DISEASE - EA EMPLOYEE XXXXXXX L. DISEASE - POLICY l MITJ!!01: XXXXXXX OPERATIONS bnbw sional N N LPP002655709 6/12/2016 6/12/2017 Limits: $5,000,000 Agg: 55,000,000 Deductible: $100,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached It more space is required) Coverage Subject To Actual Policy Terns, Conditions, and Exclusions. VI11\V GLLMr TVI\ SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE VMLL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 12453784 AUTHORIZED REPRESENTATIVE For Information Purposes Only ACORD 25 (2016103) ©1988-2015 ACORD CORPORATION. All riahts reserved The ACORD name and logo are registered marks of ACORD EXHIBIT 4 Contract #6254 Exhibit D Conflict of Interest Forms 14 of 14 EXHIBIT 4 CONFLICT OF INTEREST QUESTIONNAIRE - FORM CIQ For vendor or other -person doing business with local governmental entity This questionnaire reflects changes made to the law 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(x). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 71h 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. 1 NAme of person who has a business relationship with local governmental eulit}. Gregory C. Schaecher z Check This box if you are filing an update to a previously fled questionnaire. (The law requires that you file an updated completed qucstionnaire with the appropriate filing authority not later than the Th business day aner the dale the originally tiled queslionnaire becomes incomplete or inaccurate.) 31 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & 1)), must be completed for each officer with whom the filer has an employment or olher business relationship as defined by Section 176.001(1-a), local Government Code. Attach additional pages to this form CIC} as necessary_ A, Is the local government officer named in this section recciving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? D Yes F--] 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 scclion AND the taxable income is not received from the local governmental eulity? 0 Yes Q No C. is the filer of'this qucstionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes = No D. Describe each affiliation or business relationship_ d ❑X 1 have nn Conflict of Interest to disrinse. 5 11/08/16 Signature orpersMuJa4 business widk the gowniniental entity Date EXHIBIT 4 CERTIFICATE OF INTERESTED PARTIES FORM 1295 loll Complete Nos. 1.4 and 6 if there are interested parties. Complete Nos. 1, 2, 3. 5, and 6 if thele are no interested parties. OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2016-133858 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. McCall, Parkhurst & Horton L.L.P. Dallas, TX United States Date Filed: 1110712016 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Denton Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or Identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. Contract rt 6254 Bond counsel services. 4 Name of Interested Party city, State, Country (place of business) Nature of Interest (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Party. ❑k 6 AFFIDAVIT I swear, or affirm, under penafty of perjury, thai the above disclosure is true and correct. y� MY COMMISSION EXPIRES + 1lttpud28,21)19 Signature thori d ayerri of cuntractirig business entity AFFIX NOTARY STAMP) SEAL ABOVE Sworn to and subscribed before me, by the said _GregoU C. Schaecherthis the 8th day of November 2D 16 , to certify which, witness my hand and seal of office. &64�L (►1 Brenda Cbapmall Nota Public 519nature of officer a istering oath Printed name of officer administering oath Tit#e of officer administering oath v, ,u N,uv,ucu uy 1cnao r=ukz) Cvinmisslon www.ernlcs.state.ix.us Version V1.0.277 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1523, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Materials Management ACM: Bryan Langley AGENDA DATE: December 6, 2016 SUBJECT Consider adoption of an ordinance authorizing the City Manager to execute a consulting services agreement for Financial Advisory, Arbitrage Rebate and Continuing Disclosure Services for the City of Denton; providing for the expenditure of funds therefor; and providing an effective date (File 6228 -awarded to FirstSouthwest, a Division of Hilltop Securities Inc. and FSC Continuing Disclosure Services, a Division of Hilltop Securities Inc., hereinafter called "Hilltop Securities" and affiliate, First Southwest Asset Management, LLC). The Audit/Finance Committee recommends approval (3-0). FILE INFORMATION In December 2010, staff renegotiated three separate contracts with First Southwest ("FSW") into a single contract in an effort to reduce costs and improve efficiencies. The City Council approved the consolidated contract (Ordinance No. 2010-304) on December 7, 2010. Through this effort, the City's fees for arbitrage rebate services were reduced by 15% or $7,000 per year and a one-time savings of $39,165 recognized from reduced financial advisory services fees on the GO Refunding Bonds, Series 2010A. While there was no fee reduction for continuing disclosure services, the increased requirements for regulatory disclosures translated to an increase in services for the same cost to the City. Additionally and in conjunction with this effort in 2010, the City also renegotiated its investment advisory services contract with First Southwest Asset Management ("FSAM"), a division of FSW. Investment advisory services are separate services from those provided by FSW. That effort resulted in a savings of $15,000 and a reduction in fees that continues to today. On February 21, 2012, the City Council adopted Ordinance No. 2012-029 awarding a five (5) year contract to FSW for financial advisory, arbitrage rebate and continuing disclosure services. This contract maintained the fees approved in 2010, and is due to expire on February 20, 2017. In anticipation of this approaching expiration date, staff requested a proposed fee schedule from FSW for all three services assuming a five (5) year continuous term contract. While the term of the contact is proposed for five (5) years, the City has the right to terminate the contact with thirty (30) days' notice. FSW submitted the following proposed fees: Current Fee Proposed Fee City of Denton Page 1 of 4 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1523, Version: 1 Financial Advisory Services: Base Fee $25,000 $25,000 Plus per 1,000 of Bonds, any size $1.00 /A Plus per 11000 of Bonds up to $25 million /A $1.00 Plus per 1,000 of Bonds over $25 million /A $0.75 Arbitrage Rebate Services: Annual Fee per Issue' $1,260 $1,260 IRS Refund Request $750 $750 Commercial Paper Calculations - Per Issue $1,600 $1,600 Continuing Disclosure Services: Annual Fee per Report' $3,500 $3,500 Material Event Disclosure Reports, as needed $100 minimum or $125 per hour, if 5 ours or more No Fee 'Includes a 10% discount since files are provided electronically on a spreadsheet. IFSW currently files three (3) annual reports but only charges for two (2). No proposed change to this practice. Additionally, FSW has offered to apply their proposed fees for Financial Advisory Services to the City's upcoming Utility System Revenue Bonds, Series 2016 to further demonstrate their willingness to continue their relationship with the City. By doing so, this amounts to a savings of $42,750 on preliminary estimates for the City's initial sale. FSW has not made this offer contingent upon approval of a contract. As a due diligence check on fees, staff conducted an informal inquiry into pricing for financial advisory services among various cities. While not all cities are experiencing the same growth as the City of Denton nor are they, in most cases, full service cities, staff did find that most fees are comparable to those charged by FSW. However, staff would note that most other cities pay an additional 1.25 markup on fees for refunding issues, variable rate issues and issues related to federal or state agencies. FSW does not differentiate between types of issues. In addition, hourly fees are also charged for services not directly related to an upcoming issuance. FSW's proposed fees do not include any additional charges since all services may eventually result in a bond issue. City staff receives excellent service from FSW including development related financial services at no additional costs. Their financial and tax-exempt market expertise are a benefit to the City. FSW is the largest municipal advisor in Texas by number of deals and amount issued. Nationally, FSW has been ranked the number 1 financial advisor in nine of the last ten years by number of issues. Staff has attached (Exhibit 2) FSW's statement of qualifications that provides additional information regarding the firm's experience, knowledge and ancillary services. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) On September 27, 2016, the Audit/Finance Committee recommended approval to forward this item to the City Council for consideration. RECOMMENDATION City of Denton Page 2 of 4 Printed on 12/2/2016 povveied by I_egist9i I;, File #: ID 16-1523, Version: 1 Staff recommends award of a new five (5) year continuous term contract with FirstSouthwest, a Division of Hilltop Securities Inc. and FSC Continuing Disclosure Services, a Division of Hilltop Securities Inc., hereinafter called "Hilltop Securities" and affiliate, First Southwest Asset Management, LLC for Financial Advisory, Arbitrage Rebate and Continuing Disclosure Services. PRINCIPAL PLACE OF BUSINESS Hilltop Securities Inc. Fort Worth, TX First Southwest Asset Management, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT This is a five (5) year contract that expires on February 20, 2022. FISCAL INFORMATION Financial Advisory Services will be funded from the account number associated with the sale of a particular type of bond which may include General Obligation Bonds, Certificate of Obligation and/or Revenue Bonds, as appropriate. Continuing Disclosure Services will be funded from General Fund account 160099.7879. Arbitrage Rebate Services are funded from General Debt Service Fund account 130001.8108 and Utility Debt Service Fund account 621001.8108. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.1 Manage financial resources in a responsible manner EXHIBITS Exhibit 1: Current FSW Contract Exhibit 2: Statement of Qualifications Exhibit 3: Ordinance Exhibit 4: Contract Respectfully submitted: Chuck Springer, 349-8260 Director of Finance City of Denton Page 3 of 4 Printed on 12/2/2016 povveied by I_egist9i I;, File M ID 16-1523, Version: 1 For information concerning this acquisition, contact: Tony Puente at 349-7283. City of Denton Page 4 of 4 Printed on 12/2/2016 povveied by I_egist9i I;, EXHIBIT 1 sAlegal\our documents\ordinances\12\first southwest company.doc ORDINANCE NO. 2012-029 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A CONSULTING SERVICES AGREEMENT FOR FINANCIAL ADVISORY, ARBITRAGE REBATE AND CONTINUING DISCLOSURE SERVICES BETWEEN THE CITY OF DENTON AND FIRST SOUTHWEST COMPANY AND AFFILIATE FIRST SOUTHWEST ASSET MANAGEMENT; APPROVING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City has selected First Southwest Company and affiliate First Southwest Asset Management for the purpose of financial advisory services, continuing disclosure services, and arbitrage services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations in the preamble are true and correct and are incorporated herewith as part of this Ordinance. SECTION 2. The City Manager is hereby authorized to execute a professional services agreement between the City of Denton and First Southwest Company and affiliate First Southwest Asset Management, which is attached hereto and incorporated herein by reference. SECTION 3. The City Manager, or his designee, is authorized to make the expenditures as outlined in the attached Agreement and to exercise all rights and duties of the City of Denton under the Agreement. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPRO ED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: `J day of 19 2012. , MAYOR EXHIBIT 1 CONSULTING SERVICES AGREEMENT FOR FINANCIAL ADVISORY, ARBITRAGE REBATE AND CONTINUING DISCLOSURE SERVICES STATE OF TEXAS COUNTY OF DENTON § HIS AGREEMENT is made and entered into as of the /%`s�7day of 2012, by and between the City of Denton, Texas, a Texas municipal corporation, wiA its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and First Southwest Company, with an office at 777 Main Street, Suite 1200, Fort Worth, Texas 76102, hereinafter called "CONSULTANT," and CONSULTANT's affiliate, First Southwest Asset Management, Inc., with its corporate office at 325 North St. Paul Street, Suite 800, Dallas, Texas 75201, hereinafter called ("FSAM"), acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT and FSAM, as independent contractors, and the CONSULTANT and FSAM hereby agree to perform the services herein in connection with the Projects as stated in the sections to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described projects: The Projects shall include, without limitation, the provision of financial advisory and continuing disclosure services to be performed by the Consultant and the provision of arbitrage rebate services to be performed by FSAM. ARTICLE II SCOPE OF SERVICES The CONSULTANT and FSAM shall perform the following services in a professional manner: A. CONSULTANT shall perform all those services set forth in the Financial Advisory Agreement attached hereto as Attachment A, which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements. EXHIBIT 1 B. CONSULTANT shall perform all those services set forth in the Continuing Disclosure Services Agreement attached hereto as Attachment B, which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements. C. FSAM shall perform all those services set forth in the Arbitrage Rebate Services Agreement attached hereto as Attachments C, which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements. D. If there is any conflict between the terms of this Agreement and the attached attachments to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached attachments. ARTICLE III ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT and FSAM, if authorized by the OWNER, which are not included in the above-described Scope of Services, are described as follows: (list all additional services that maybe required for the project) Not applicable. ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and FSAM and upon issue of a notice to proceed by the OWNER, and shall remain in force during the term of the respective agreements attached hereto and any required extensions approved by the OWNER. This Agreement may be sooner terminated in accordance with the provisions in Article XII and the respective agreements may be terminated pursuant to each such agreement's terms. Time is of the essence in this Agreement. The CONSULTANT and FSAM shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee. ARTICLE V COMPENSATION A. COMPENSATION TERMS: "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of financial advisory, arbitrage rebate and continuing disclosure. 2. "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, Page 2 EXHIBIT 1 travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT and FSAM herein, the OWNER agrees to pay, based on the terms of the agreements attached hereto. Partial payments to the CONSULTANT and FSAM will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The OWNER may withhold the final five percent (5%) of the contract amount until completion of the Projects. Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The OWNER shall not be required to make any payments to the CONSULTANT or FSAM when the CONSULTANT or FSAM, respectively, is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT and/or FSAM shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER. The CONSULTANT and FSAM shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the OWNER. C. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III, the CONSULTANT and/or FSAM shall be paid pursuant to the attached agreements. Payments for additional services shall be due and payable upon submission by the CONSULTANT and/or FSAM, and shall be in accordance with subsection B hereof. Statements shall not be submitted more frequently than monthly. D. PAYMENT: If the OWNER fails to make undisputed payments due the CONSULTANT and/or FSAM for services and expenses within thirty (30) days after receipt of the CONSULTANT's and/or FSAM's undisputed statement thereof, prompt payment act interest as set forth in Chapter 2251 of the Texas Government Code shall be paid on the amounts due the CONSULTANT and/or FSAM. In addition, the CONSULTANT and/or FSAM may, if payment is not received by the thirty-first (31") day after receipt of statement, after giving ten (10) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT and/or FSAM has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay prompt payment act interest if the OWNER has a bona fide dispute with the CONSULTANT and/or FSAM concerning the payment or if the Page 3 EXHIBIT 1 OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation," ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT and FSAM will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or FSAM or any subcontractors or subconsultants. ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT and FSAM pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT and FSAM are entitled to retain copies of all such documents. The documents prepared and furnished by the CONSULTANT and FSAM are intended only to be applicable to.this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense. In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT and FSAM are released from any and all liability relating to their use in that project. ARTICLE VIII INDEPENDENT CONTRACTOR CONSULTANT and FSAM shall provide services to OWNER as independent contractors, not as employees of the OWNER. CONSULTANT and FSAM shall not have or claim any right arising from employee status. ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT and FSAM shall indemnify and save and hold harmless the OWNER and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or FSAM or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Page 4 EXHIBIT 1 Agreement, including the defense of governmental immunity, which defenses are hereby expressly reset ved. ARTICLE X INSURANCE During the performance of the services under this Agreement, CONSULTANT and FSAM shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with properly damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. C. Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. E. The CONSULTANT and FSAM shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The insurance policies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to OWNER and CONSULTANT and FSAM. In such event, the CONSULTANT and FSAM shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE XI ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to mediation. No mediation arising out of or relating to this Agreement may proceed without the agreement of both parties to submit the dispute to mediation. The location for the mediation shall be the City of Denton, Denton County, Texas unless a different location is agreed to by the parties. Page 5 EXHIBIT 1 ARTICLE XII TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other parry. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be affected unless the other parry is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT and/or FSAM shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30),days after the date of termination. The OWNER shall pay CONSULTANT and FSAM for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article V "Compensation." Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT and/or FSAM shall cooperate in providing information. The CONSULTANT and FSAM shall turn over all documents prepared or furnished by CONSULTANT and FSAM pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT or FSAM, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT or FSAM its employees, subcontractors, agents,' and consultants. CONSULTANT and FSAM retain, design responsibility and liability at all times during this Agreement and after completion of this Agreement. ARTICLE XIV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United Page 6 EXHIBIT 1 States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CONSULTANT: First Southwest Company David Medanich, Vice Chainnan 777 Main Street, Suite 1200 Fort Worth, Texas 76102 To FSAM First Southwest Asset Management, Inc. William Johnson, Senior Vice President 325 North St. Paul Street, Suite 800 Dallas, Texas 75201 To OWNER: City of Denton Bryan Langley, Chief Financial Officer 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of twenty (20) pages and three (3) exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE XVI SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT and FSAM shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. Page 7 EXHIBIT 1 ARTICLE XVIII DISCRIMINATION PROIIIBITED In performing the services required hereunder, the CONSULTANT and FSAM shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIX PERSONNEL A. The CONSULTANT and FSAM represent that they have or will secure, at their own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER. CONSULTANT and FSAM shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the terns of this Agreement. B. All services required hereunder will be performed by the CONSULTANT and/or FSAM. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. C. In those instances deemed necessary by the OWNER, the CONSULTANT and/or FSAM and/or their employees shall be required to submit to background checks. ARTICLE XX ASSIGNABILITY The CONSULTANT or FSAM shall not assign any of its scope of work under in this Agreement, and shall not transfer any of its scope of work under this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER. Should the CONSULTANT or FSAM assign any part of the monies due under this Agreement, CONSULTANT or FSAM is required to provide written notice of the same to OWNER. Any assignment of monies due under this Agreement shall not change any of the terms or conditions of this Agreement to include but not limited to the terms and conditions for payment under this Agreement. ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in Page 8 EXHIBIT 1 writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE XXII MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement; Exhibit A, Financial Advisory Agreement; Exhibit B, Continuing Disclosure Services Agreement and Exhibit C, Arbitrage Rebate Services Agreement. B. CONSULTANT and FSAM agree that OWNER shall, until the expiration of five (5) years after the final payment or after final completion of all work required under this Agreement, whichever is longer, have access to and the right to examine any directly pertinent books, documents, papers, correspondence, to include e-mails, and records of the CONSULTANT and/or FSAM involving transactions relating to this Agreement. CONSULTANT and FSAM are required to maintain and make available all electronic records associated with this Agreement for purposes of examination. CONSULTANT and FSAM agree that OWNER shall have access during normal working hours to all necessary CONSULTANT and FSAM facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. OWNER shall give CONSULTANT and FSAM reasonable advance notice of intended audits. This paragraph shall work in conjunction with the Audit provision set forth in Article XXIH. C. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. D. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be David Medanich and Shelley Weiske. However, nothing herein shall limit CONSULTANT and FSAM from using other qualified and competent members of its firm to perform the services required herein. CONSULTANT and FSAM understand that OWNER is to be informed of the removal or loss of any of the key persons working under this Agreement. CONSULTANT and FSAM also agree to provide the OWNER with notice of the name(s) of who it intends to replace the key person. OWNER shall have a right to reject any replacement key person(s) and CONSULTANT and FSAM agree to name a replacement key person(s) acceptable to the OWNER. E. CONSULTANT and FSAM shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, CONSULTANT and FSAM shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. Page 9 EXHIBIT 1 F. The OWNER shall assist the CONSULTANT and FSAM by placing at the CONSULTANT's and FSAM's disposal all available information pertinent to the Projects, including previous reports, any other data relative to the Projects, and arranging for the access thereto, and make all provisions for the CONSULTANT and FSAM to enter in or upon public and private property as required for the CONSULTANT and FSAM to perform services under this Agreement, G. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. ARTICLE XXIII RIGHT TO AUDIT The OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CONSULTANT and FSAM shall retain such books, records, documents and other evidence pertaining to this Agreement during 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 10 business days of written request. Further, the CONSULTANT and FSAM shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the OWNER 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 OWNER 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 CONSULTANT and/or FSAM, which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the OWNER'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. Page 10 EXHIBIT 1 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT and FSAM have,ecuted this greement through their duly authorized undersigned officer on this the �/� day of A , 2012. CITY OF DENTON, TEXAS ,1 �; 1{►1 �_.. _ I .moi. �; ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPR ED AStub LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY:/77 CONSULTANT BY?illWA.einberig Chairman and Chief Executive O er FSAM 1 BY: Hill A. Feinberg Chairman and Chief Executive Of WITNESS: BY: VI/. EXHIBIT 1 CITY OF DENTON INSURANCE REQUIREMENTS FOR CONSULTANTS/CONTRACTORS The Offeror's/Bidder's attention is directed to the insurance requirements below. It is highly recommended that offerors/bidders confer with their respective insurance carriers or brokers to determine in advance of its proposal or bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an offeror/apparent low bidder fails to comply strictly with the insurance requirements, that offeror/bidder may be disqualified from award of the contract. Upon award, all insurance requirements shall become contractual obligations, which the successful offeror/bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Consultant/Contractor, the Consultant/Contractor shall provide and maintain until the contracted tivork has been completed and accepted by the Cit), of Denton, Owner, the rrrinirnurn insurance coverage as indicated hereinafter. As soon as practicable afier notification of award, Consultant/Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the proposal/bice number and title of the project. Consultant/Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Consultants/Contractors are strongly advised to make such requests prior to proposal/bid opening, since the insurance requirements may not be modified or waived after proposal/bid opening unless a written exception has been submitted with the proposal/bid, Consultant/Contractor shall not commence any work or deliver any material until lie 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 AM, Best Company rating of at least A. • Any deductibles or self-insured retentions shall be declared in the proposal or bid. 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 Consultant/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: EXHIBIT 1 • 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. • Should any of the required insurance be provided under a claims -made form, Consultant/Contractor shall maintain such coverage continuously throughout the tern of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contact term which give rise to claims made after expiration of the contact 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 Consultant/Contractor shall either double the occurrence limits or obtain Owners and Contactors 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 $500,000.00 shall be provided and maintained by the Contactor. 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 contact and broad form property damage coverage. Page 13 EXHIBIT 1 • 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 fiom 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 $500,000.00 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. 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. " Workers Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). [_] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage Page 14 EXHIBIT 1 shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with a aggregate. L] 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. [X] 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. Page 15 EXHIBIT 1 ATTACHMENT 1 [_] Worker's Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate") -A copy of a certificate of insurance, a certificate of authority to self -insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the 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. G 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 Page 16 EXHIBIT 1 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) 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 Page 17 EXHIBIT 1 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. 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. Page 18 EXHIBIT 1 CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO. For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Recelved 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 of person who has a business relationship with local governmental entity. First Southwest Company 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Not applicable 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? 0 Yes E-1 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 from the local governmental entity? = Yes 0 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 = No Yes D. Describe each affiliation or business relationship. 4 First S thw t Com B Signature of person doing business with the governmental entity Date Adopted 06/20/20D7 19 EXHIBIT 1 CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Received 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. 1 Name of person who has a business relationship with local governmental entity. First Southwest Asset Management, Inc. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date the originally filed questionnaire becomes Incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Not applicable 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. D. 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? Yes 0 No E. Is the filer of the questionnaire receiving or likely to receive taxable income, other than Investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes = No F. 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 No Yes D. Describe each affiliation or business relationship. 4 First outh st Asset nagement, Inc. B Signature of person d04 business with the governmental entity Date 20 Adopted 06129/2007 EXHIBIT 1 Attachment A FINANCIAL ADVISORY AGREEMENT This Financial Advisory Agreement (the "Agreement") is made and entered into by and between the City of Denton, Texas ("Issuer") and First Southwest Company ("FSC") effective as of the date executed by the Issuer as set forth on the signature page hereof. WITNESSETH: WHEREAS, the Issuer will have under consideration from time to time the authorization and issuance of indebtedness in amounts and forms which cannot presently be determined and, in connection with the authorization, sale, issuance and delivery of such indebtedness, Issuer desires to retain an independent financial advisor; and WHEREAS, the Issuer desires to obtain the professional services of FSC to advise the Issuer regarding the issuance and sale of certain evidences of indebtedness or debt obligations that may be authorized and issued or otherwise created or assumed by the Issuer (hereinafter referred to collectively as the "Debt Instruments") from time to time during the period in which this Agreement shall be effective; and WHEREAS, FSC is willing to provide its professional services and its facilities as financial advisor in connection with all programs of financing as may be considered and authorized by Issuer during the period in which this Agreement shall be effective. NOW, THEREFORE, the Issuer and FSC, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, do hereby agree as follows: SECTION I DESCRIPTION OF SERVICES Upon the request of an authorized representative of the Issuer, FSC agrees to perform the financial advisory services stated in the following provisions of this Section I; and for having rendered such services, the Issuer agrees to pay to FSC the compensation as provided in Section V hereof. A. Financial Planning. At the direction of Issuer, FSC shall: 21 EXHIBIT 1 1. Survey and Analysis. Conduct a survey of the financial resources of the Issuer to determine the extent of its capacity to authorize, issue and service any Debt Instruments contemplated, This survey will include an analysis of any existing debt structure as compared with the existing and projected sources of revenues which may be pledged to secure payment of debt service and, where appropriate, will include a study of the trend of the assessed valuation, taxing power and present and future taxing requirements of the Issuer. In the event revenues of existing or projected facilities operated by the Issuer are to be pledged to repayment of the Debt Instruments then under consideration, the survey will take into account any outstanding indebtedness payable from the revenues thereof, additional revenues to be available from any proposed rate increases and additional revenues, as projected by consulting engineers employed by the Issuer, resulting from improvements to be financed by the Debt Instruments tinder consideration. 2. Future Financings. Consider and analyze future financing needs as projected by the Issuer's staff and consulting engineers or other experts, if any, employed by the Issuer. 3. Recommendations for Debt Instruments. On the basis of the information developed by the survey described above, and other information and experience available, submit to the Issuer recommendations regarding the Debt Instruments under consideration, including such elements as the date of issue, interest payment dates, schedule of principal maturities, options of prior payment, security provisions, and such other provisions as may be appropriate in order to make the issue attractive to investors while achieving the objectives of the Issuer. All recommendations will be consistent with the goal of designing the Debt Instruments to be sold on terms which are advantageous to the Issuer, including the lowest interest cost consistent with all other considerations. 4. Market Information. Advise the Issuer of our interpretation of current bond market conditions, other related forthcoming bond issues and general information, with econornic data, which might normally be expected to influence interest rates or bidding conditions so that the date of sale of the Debt Instruments may be set at a favorable time. S. Elections. In the event it is necessary to hold an election to authorize the Debt Instruments then under consideration, FSC will assist in coordinating the assembly of such data as may be required for the preparation of necessary petitions, orders, resolutions, ordinances, notices and certificates in connection with the election, including assistance in the transmission of such data to a firm of municipal bond attorneys ("Bond Counsel") retained by the Issuer. B. Debt Management and Financial Implementation. At the direction of Issuer, FSC shall: 22 EXHIBIT 1 1. Method of Sale. Evaluate the particular financing being contemplated, giving consideration to the complexity, market acceptance, rating, size and structure in order to make a reconunendation as to an appropriate method of sale, and: a. If the Debt Instruments are to be sold by an advertised competitive sale, FSC will: (1) Supervise the sale of the Debt Instruments; (2) Disseminate information to prospective bidders, organize such informational meetings as may be necessary, and facilitate prospective bidders' efforts in making timely submission of proper bids; (3) Assist the staff of the Issuer in coordinating the receipt of bids, the safekeeping of good faith checks and the tabulation and comparison of submitted bids; and (4) Advise the Issuer regarding the best bid and provide advice regarding acceptance or rejection of the bids. b. If the Debt Instruments are to be sold by negotiated sale, FSC will: (1) Reconunend for Issuer's final approval and acceptance one or more investment banking firms as managers of an underwriting syndicate for the purpose of negotiating the purchase of the Debt Instruments. (2) Cooperate with and assist any selected managing underwriter and their counsel in connection with their efforts to prepare any Official Statement or Offering Memorandum. FSC will cooperate with and assist the underwriters in the preparation of a bond purchase contract, an underwriters agreement and other related documents. The costs incurred in such efforts, including the printing of the documents, will be paid in accordance with the terms of the Issuer's agreement with the underwriters, but shall not be or become an obligation of FSC, except to the extent specifically provided otherwise in this Agreement or assumed in writing by FSC. (3) Assist the staff of the Issuer in the safekeeping of any good faith checks, to the extent there are any such, and provide a cost comparison, for both expenses and interest which are suggested by the underwriters, to the then current market. 23 EXHIBIT 1 (4) Advise the Issuer as to the fairness of the price offered by the underwriters. 2. Offering Documents. Coordinate the preparation of the notice of sale and bidding instructions, official statement, official bid form and such other documents as may be required and submit all such documents to the Issuer for examination, approval and certification. After such examination, approval and certification, FSC shall provide the Issuer with a supply of all such documents sufficient to its needs and distribute by mail or, where appropriate, by electronic delivery, sets of the same to prospective purchasers of the Debt Instruments. Also, FSC shall provide copies of the final Official Statement to the purchaser of the Debt Instruments in accordance with the Notice of Sale and Bidding Instructions. 3. Credit Ratings. Make recommendations to the Issuer as to the advisability of obtaining a credit rating, or ratings, for the Debt Instruments and, when directed by the Issuer, coordinate the preparation of such information as may be appropriate for submission to the rating agency, or agencies. In those cases where the advisability of personal presentation of information to the rating agency, or agencies, play be indicated, FSC will arrange for such personal presentations, utilizing such composition of representatives from the Issuer as may be finally approved or directed by the Issuer. 4. Trustee Paving Agent, Registrar. Upon request, counsel with the Issuer in the selection of a Trustee and/or Paying Agent/Registrar for the Debt Instruments, and assist in the negotiation of agreements pertinent to these services and the fees incident thereto. 5. Financial Publications. When appropriate, advise financial publications of the forthcoming sale of the Debt Instruments and provide them with all pertinent information. 6. Consultants. After consulting with and receiving directions from the Issuer, arrange for such reports and opinions of recognized independent consultants as may be appropriate for the successful marketing of the Debt Instruments. 7. Auditors. In the event formal verification by an independent auditor of any calculations incident to the Debt Instruments is required, make arrangements for such services. 8. Issuer Meetings. Attend meetings of the governing body of the Issuer, its staff, representatives or committees as requested at all times when FSC may be of assistance or service and the subject of financing is to be discussed. 9. Printing. To the extent authorized by the Issuer, coordinate all work incident to printing of the offering documents and the Debt Instruments. 24 EXHIBIT 1 10. Bond Counsel. Maintain liaison with Bond Counsel in the preparation of all legal documents pertaining to the authorization, sale and issuance of the Debt Instruments. 11. Changes in Laws. Provide to the Issuer copies of proposed or enacted changes in federal and state laws, rules and regulations having, or expected to have, a significant effect on the municipal bond market of which FSC becomes aware in the ordinary course of its business, it being understood that FSC does not and may not act as an attorney for, or provide legal advice or services to, the Issuer. 12. Delivery of Debt Instruments. As soon as a bid for the Debt Instruments is accepted by the Issuer, coordinate the efforts of all concerned to the end that the Debt Instruments may be delivered and paid for as expeditiously as possible and assist the Issuer in the preparation or verification of final closing figures incident to the delivery of the Debt Instruments. 13. Debt Service Schedule, Authorizing Resolution. After the closing of the sale and delivery of the Debt Instruments, deliver to the Issuer a schedule of annual debt service requirements for the Debt Instruments and, in coordination with Bond Counsel, assure that the paying agent/registrar and/or trustee has been provided with a copy of the authorizing ordinance, order or resolution. SECTION II TERM OF AGREEMENT This Agreement shall become effective as of the date executed by the Issuer as set forth on the signature page hereof and, unless terminated by either party pursuant to Section IV of this Agreement, shall remain in effect thereafter for a period of five (5) years from such date. SECTION III TERMINATION This Agreement may be terminated with or without cause by the Issuer or FSC upon the giving of at least thirty (30) days' prior written notice to the other party of its intention to terminate, specifying in such notice the effective date of such termination. In the event of such termination, it is understood and agreed that only the amounts due FSC for services provided and expenses incurred to the date of terunination will be due and payable. No penalty will be assessed for termination of this Agreement. 25 EXHIBIT 1 SECTION IV COMPENSATION AND EXPENSE REIMBURSEMENT The fees due to FSC for the services set forth and described in Section I of this Agreement with respect to each issuance of Debt Instruments during the terns of this Agreement shall be calculated in accordance with the schedule set forth on Appendix A attached hereto, Unless specifically provided otherwise on Appendix A or in a separate written agreement between Issuer and FSC, such fees, together with any other fees as may have been mutually agreed upon and all expenses for which FSC is entitled to reimbursement, shall become due and payable concurrently with the delivery of the Debt Instruments to the purchaser. SECTION V MISCELLANEOUS 1. Choice of Law. This Agreement shall be construed and given effect in accordance with the laws of the State of Texas. 2. Binding Effect: Assignment. This Agreement shall be binding upon and inure to the benefit of the Issuer and FSC, their respective successors and assigns; provided however, neither party hereto may assign or transfer any of its rights or obligations hereunder without the prior written consent of the other party. 3. Entire Agreement. This instrument contains the entire agreement between the parties relating to the rights herein granted and obligations herein assumed. Any oral or written representations or modifications concerning this Agreement shall be of no force or effect except for a subsequent modification in writing signed by all parties hereto. FIRST SOUTHWEST COMP By: David I . Medanich, Vice Chairman By: WA� A�4 am4� Laura .Alexander, Senior Vice President 26 EXHIBIT 1 A 27 CITY OF DENTON, TEXAS By: Title: h71616 el T y911 6 6e Date:_ ,� k / EXHIBIT 1 a APPENDIX A The fees due FSC will not exceed those contained in the fee schedule as listed below. Base Fee — Any Issue $25,000 Plus $1.00 per 1,000 Bonds The charges for ancillary services, including official statement printing, shall be levied only for those services which are reasonably necessary in completing the transaction and which are reasonable in amount, unless such charges were incurred at the specific direction of the Issuer, The payment of charges for financial advisory services described it? Section I of the foregoing Agreement shall be contingent upon the delivery of bonds and shall be due at the time that bonds are delivered. The Issuer shall be responsible for the following expenses, if and when applicable, whether they are charged to the Issuer directly as expenses or charged to the Issuer by FSC as reimbursable expenses: Bond counsel Bond printing Bond ratings Credit enhancement CPA fees for refunding Official statement printing Paying agent/registrar/trustee - Travelexpenses Underwriter and underwriters counsel Miscellaneous, including copy, delivery, and phone charges 172e payment of reimbursable expenses that FSC has assumed on behalf of the Issuer shall NOT be contingent upon the delivery of bonds and shall be due at the time that services are rendered and payable upon receipt of an invoice therefor submitted by FSC. Page 28 EXHIBIT 1 Attachment B AGREEMENT FOR CONTINUING DISCLOSURE SERVICES BY AND BETWEEN CITY OF DENTON, TEXAS (HEREINAFTER REFERRED TO AS THE "ISSUER") AND FSC CONTINUING DISCLOSURE SERVICES, A DIVISION OF FIRST SOUTHWEST COMPANY In connection with the sale and delivery of certain bonds, notes, certificates, or other municipal obligations (the `Bonds"), the Issuer has made certain undertakings to disclose to the investing public, on a periodic and continuing basis, certain information, as more fully set forth in such undertakings and as contemplated by the provisions of Securities and Exchange Commission Rule 15c2-12, as amended (the "Rule"). The Issuer has agreed to engage FSC Continuing Disclosure Services, a Division of First Southwest Company ("Continuing Disclosure Services"), to assist it with these continuing disclosure obligations, for the consideration and on the terms and conditions set forth herein, including the preparation and submission of annual reports (the "Annual Reports") and the reporting of certain specified events (the "Events"), which are set forth in the Issuer's undertakings, the Rule and in Subsection 2c, below. This agreement (the "Agreement") between the Issuer and the Continuing Disclosure Services shall become effective as of the date of its acceptance as provided for below. The parties agree as follows: 1. This Agreement shall apply to all issues of Bonds delivered subsequent to the effective date of the continuing disclosure requirements as specified in the Rule, to the extent that any particular issue does not qualify for exceptions to the continuing disclosure requirements of the Rule. 2. Continuing Disclosure Services agrees to perform the following in connection with providing services relating to the Issuer's continuing disclosure obligations: a. assist the Issuer in compiling data determined or selected by the Issuer to be disclosed; b, assist the Issuer in identifying other information to be considered by Issuer for continuing disclosure reporting purposes; c. assist the Issuer in preparing the presentation of such information, to include Annual Reports containing financial information and operating data of the type provided in the final official statement of applicable issues, and notices concerning the occurrence of the specified Events and other items listed below: Page 29 EXHIBIT 1 1) Principal and interest payment delinquencies 2) Non-payment related defaults 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 or events affecting the tax-exempt status of the security 7) Modifications to rights of security holders 8) Bond calls 9) Defeasances 10) Release, substitution, or sale of property securing repayment of the securities 11) Rating changes 12) The issuance by the IRS 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 securities of the Issuer 13) Tender offers 14) Bankruptcy, insolvency, receivership or similar proceeding 15) Mergers, consolidations, acquisitions, the sale of all or substantially all of the assets of the obligated person or their termination 16) Appointment of a successor or additional trustee or the change of the name of a trustee 17) Noncompliance witb the Rule d. assist the Issuer in distributing or filing, in the Issuer's name, the above mentioned Annual Reports, notices and audited annual financial statements to the Nationally Recognized Municipal Securities Information Repository ("NRMSIR"), which is the Municipal Securities Rulemaking Board ("MSRB"), appropriate State Information Depository ("SID"), rating agencies, and other entities, as required by the Issuer's continuing disclosure obligations. e, provide to the Issuer confirmation of distribution or dissemination of reports and notices. 3. Issuer acknowledges and agrees to the following: a. Continuing Disclosure Services will be compensated for the performance of services with respect to assisting the Issuer with preparation and submission of continuing disclosure reports in accordance with the schedule as set forth below: 1) $2,500 per year for assistance in preparation and distribution of each annual report and assistance in distribution of audited annual financial statements, if Issuer is exempt from requirements other than filing with the SID, or $3,500 per year for assistance in preparation and distribution of each annual report and assistance in distribution of audited annual financial statements, if Issuer is not exempt from filing reports with the SID and NRMSIR, plus Page 30 EXHIBIT 1 2) $100 minimum fee for assistance in preparation and distribution of each notice concerning occurrence of an Event or noncompliance with the Rule; in addition, a fee of $125 per hour for all time in excess of five (5) hours spent in assisting with preparation and distribution of each notice concerning occurrence of an Event or noncompliance with the Rule. Issuer will provide to Continuing Disclosure Services, and Continuing Disclosure Services shall be entitled to rely upon, all information regarding the issuance of the Bonds, including the final official statement and the Issuer's commitment or undertaking regarding continuing disclosure as contained in the resolution authorizing issuance of the Bonds or separate contract or agreement; annual financial information and operating data of the type provided in the final official statement; information concerning the occurrence of an Event or noncompliance with the Rule; and any other information necessary to prepare continuing disclosure reports. c. Issuer will provide to Continuing Disclosure Services, and Continuing Disclosure Services shall be entitled to rely upon, annual written confirmation of all outstanding Bond issues for which the issuer has a continuing disclosure obligation. d. Issuer will provide to Continuing Disclosure Services all information required for preparation of each Annual Report, including financial information and operating data of the type provided in the final official statement and other information deemed necessary by Issuer, no later than 45 days prior to the date on which each Annual Report is due. e. Issuer will provide full and complete copies of the audited annual financial statement no later than ten (10) days prior to the date on which it is due, f. Issuer will notify Continuing Disclosure Services immediately upon the occurrence or immediately upon the Issuer's knowledge of the occurrence of each Event or noncompliance with the Rule, and the Issuer will immediately provide all information necessary for preparation of the notice of occurrence of each such Event or noncompliance with the Rule. g. Issuer shall have the sole responsibility for determining the disclosure to be made in all cases. The Issuer shall review and provide approval of the content and form of all continuing disclosure reports and notices, with the exception of the following, which will be filed automatically on the Issuer's behalf, unless the Issuer has notified Continuing Disclosure Services otherwise in writing: bond calls, defeasances, and rating changes. In the event of a disagreement between the Issuer and Continuing Disclosure Services regarding the disclosure to be made, either the Issuer or Continuing Disclosure Services may, but neither is obligated to, terminate this Agreement by written notice to the other party. h. A separate Annual Report will be prepared and distributed for each type of security pledge in effect for outstanding financing issues or Bonds of the Issuer. i. Issuer will inform Continuing Disclosure Services of the retirement of any Bonds included under the scope of this Agreement within 30 days of such retirement. 4. In the event that Continuing Disclosure Services and the Issuer determine that advice of counsel is appropriate with respect to any question concerning disclosure, then (i) the Issuer may consult with its counsel, or (ii) the Issuer may authorize Continuing Disclosure Services Page 31 EXHIBIT 1 to seek legal advice fiom independent counsel regarding the disclosure. The Issuer agrees that it shall be responsible for the fees and expenses of its own counsel. The Issuer agrees to reimburse Continuing Disclosure Services the fees and expenses of independent counsel, if paid by Continuing Disclosure Services, for advice rendered pursuant to authorization by the Issuer. 5. The Issuer agrees to hold harmless and to indemnify Continuing Disclosure Services and its employees, affiliates, officers, directors, and agents fiom and against any and all claims, damages, losses, liabilities, reasonable costs and expenses whatsoever (including attorneys' fees and expenses) which Continuing Disclosure Services may incur by reason of or in connection with the distribution of information in the disclosure reports in accordance with this Agreement, except to the extent such claims, damages, losses, liabilities, costs and expenses result directly from Continuing Disclosure Services' willful misconduct or gross negligence in the distribution of such information, In order to provide for just and equitable contribution, if a claim for indemnification pursuant to the _foregoing indemnification provision is made, but it is determined in an appropriate proceeding that such indemnification may not be enforced, even though the express provisions hereof provide for indemnification in such case, then the Issuer, on the one hand, and Continuing Disclosure Services, on the other hand, shall contribute to the claims, damages, losses, liabilities, costs and expenses to which Continuing Disclosure Services may be subject in accordance with the relative benefits received by Issuer, on the one hand, and Continuing Disclosure Services, on the other hand, and also the relative fault of Issuer, on the one hand, and Continuing Disclosure Services, on the other hand, in connection with the acts or omissions which resulted in such claims, damages, losses, liabilities, costs or expenses; and relevant equitable considerations shall also be considered. Notwithstanding the foregoing, Continuing Disclosure Services, shall not be obligated to contribute any amount hereunder that exceeds the amount of fees previously received by Continuing Disclosure Services pursuant to this Agreement. 6. The fees and expenses due to Continuing Disclosure Services in providing Continuing Disclosure Services shall be calculated in accordance with Section 3a. of this Agreement. The fees will be invoiced each year during the term of the Agreement, unless terminated earlier, and fees will be payable within 30 days of receipt of invoice, except that the fees for the first year's service will be invoiced and be payable upon acceptance of this Agreement. In addition, the Issuer agrees to reimburse Continuing Disclosure Services for the following expenses: (i) legal fees and expenses of counsel incurred by Continuing Disclosure Services pursuant to the terms of Section 4. above, and (ii) other out-of-pocket expenses reasonably incurred by Continuing Disclosure Services in performing its obligations hereunder. The Issuer shall remit payment for expenses to Continuing Disclosure Services within 30 days of receipt of invoice. Bonds Issued Subsequent to Agreement: The provisions of this Agreement will include additional municipal bonds and financings (including financing lease obligations) issued during the stated term of this Agreement, if such bonds are subject to the continuing disclosure requirements. In this connection, the Issuer agrees that the Issuer will notify Continuing Disclosure Services of any municipal bonds and financing (including financing lease obligations) issued by the Issuer during any fiscal year of the Issuer during the term of this Agreement, and will provide Continuing Disclosure Services with such information as shall be necessary in order for Continuing Disclosure Services to perform the services contracted for hereunder. Page 32 EXHIBIT 1 Effective Dates of Agreement: This Agreement shall become effective as of the date of acceptance by the Issuer as set out below and remain in effect thereafter for a period of five (5) years from the date of acceptance. This agreement may be terminated with or without cause by the Issuer or Continuing Disclosure Services upon thirty (30) days' written notice to the other party. In the event of such termination, it is understood and agreed that only the amounts due to Continuing Disclosure Services for services provided and expenses incurred to and including the date of termination will be due and payable. No penalty will be assessed for termination of this Agreement. In the event this Agreement is terminated prior to its stated term, all records provided to Continuing Disclosure Services by the Issuer shall be returned to the Issuer as soon as practicable. In addition, the parties hereto agree that upon termination of this Agreement Continuing Disclosure Services shall have no continuing obligation to the Issuer regarding any service contemplated herein. Notwithstanding the foregoing, all indemnification, hold harmless and/or contribution obligations, pursuant to Section 5 of this Agreement, shall survive any termination, regardless of whether the termination occurs as a result of the expiration of the term hereof or the Agreement is terminated sooner by either the Issuer or Continuing Disclosure Services under this Section 8, pursuant to Subsection 3, g., or otherwise. Provision of Notices Provision of information, delivery of certification and notices of Events and noncompliance with the Rule, unless directed otherwise in writing, shall be sent to: City of Denton, Texas 215 East McKinney Denton, TX 76201 Bryan Langley Chief Financial Officer Phone: (940) 349-8224 Fax: (940) 349-7206 Email: Bryan.Langley@cityofdenton.com FSC Continuing Disclosure Services, a Division of First Southwest Company 325 North St. Paul Street, Suite 800 Dallas, Texas 75201 Attention: Julie James Vice President for Continuing Disclosure Phone: (214) 953-8701 Fax: (214) 953-4050 Email: julie.james@firstsw.com Acceptance of Agreement 9. This Agreement is submitted in duplicate originals. When accepted by the Issuer, it will constitute the entire Agreement between the Issuer and Continuing Disclosure Services for the purposes and the consideration specified above. Acceptance will be indicated on all copies and returned to Continuing Disclosure Services. An executed original will be returned for your files. Page 33 EXHIBIT 1 Respectfully submitted, FSC Continuing Disclosure Services, a Division of First Southwest Company By Hill A. Feinberg Chairman and Chi Executive Officer By G7 J ame t�ice Presi faa-/ Date ACCEPTANCE CLAUSE The above and foregoing is hereby in all things accepted and approved by the City of Denton, Texas, on this the day of / 212. By qtz� A orized epresentative Yk ri/VG d 1 y 1V41V#6"z Title Page 34 EXHIBIT 1 Attachment C AGREEMENT FOR ARBITRAGE REBATE COMPLIANCE SERVICES BETWEEN CITY OF DENTON, TEXAS (Hereinafter Referred to as the "Issuer") AND FIRST SOUTHWEST ASSET MANAGEMENT, INC. (Hereinafter Referred to as "First Southwest") It is understood and agreed that the Issuer, in connection with the sale and delivery of certain bonds, notes, certificates, or other tax-exempt obligations (the "Obligations"), will have the need to determine to what extent, if any, it will be required to rebate certain investment earnings (the amount of such rebate being referred to herein as the "Arbitrage Amount") from the proceeds of the Obligations to the United States of America pursuant to the provisions of Section 148(£)(2) of the Internal Revenue Code of 1986, as amended (the "Code"). For purposes of this Agreement, the terns "Arbitrage Amount" includes payments made under the election to pay penalty in lieu of rebate for a qualified construction issue under Section 148(f)(4) of the Code. We are pleased to submit the following proposal for consideration; and if the proposal is accepted by the Issuer, it shall become the agreement (the "Agreement") between the Issuer and First Southwest effective at the date of its acceptance as provided for herein below. This Agreement shall apply to all issues of tax-exempt Obligations delivered subsequent to the effective date of the rebate requirements under the Code, except for (i) issues which qualify for exceptions to the rebate requirements in accordance with Section 148 of the Code and related Treasury regulations, or (ii) issues excluded by the Issuer in writing in accordance with the further provisions hereof, (iii) new issues effected in a fashion whereby First Southwest is unaware of the existence of such issue, (iv) issues in which, for reasons outside the control of First Southwest, First Southwest is unable to procure the necessary information required to perform such services. Covenants of First Southwest We agree to provide our professional services in determining the Arbitrage Amount with regard to the Obligations. The Issuer will assume and pay the fee of First Southwest as such fee is set out in Appendix A attached hereto. First Southwest shall not be responsible for any extraordinary expenses incurred on behalf of Issuer in connection with providing such professional services, including any costs incident to litigation, mandamus action, test case or other similar legal actions. We agree to perform the following duties in connection with providing arbitrage rebate compliance services: a. To cooperate fully with the Issuer in reviewing the schedule of investments made by the Issuer with (i) proceeds from the Obligations, and (ii) proceeds of other funds of the Issuer which, under Treasury Regulations Section 1.148, or any successor regulations thereto, are subject to the rebate requirements of the Code; b. To perform, or cause to be performed, consistent with the Code and the regulations promulgated thereunder, calculations to determine the Arbitrage Amount under Section 148(f)(2) of the Code; and c. To provide a report to the Issuer specifying the Arbitrage Amount based upon the investment schedule, the calculations of bond yield and investment yield, and other Page 35 EXHIBIT 1 information deemed relevant by First Southwest. In undertaking to provide the services set forth in paragraph 2 and this paragraph 3, First Southwest does not assume any responsibility for any record retention requirements which the Issuer may have under the Code or other applicable laws, it being understood that the Issuer shall remain responsible for compliance with any such record retention requirements. Covenants of the Issuer 4. In connection with the performance of the aforesaid duties, the Issuer agrees to the following: a. The fees due to First Southwest in providing arbitrage rebate compliance services shall be calculated in accordance with Appendix A attached hereto. The fees will be payable upon delivery of the report prepared by First Southwest for each issue of Obligations during the term of this Agreement. b. The Issuer will provide First Southwest all information regarding the issuance of the Obligations and the investment of the proceeds therefrom, and any other information necessary in connection with calculating the Arbitrage Amotmt. First Southwest will rely on the information supplied by the Issuer without inquiry, it being understood that First Southwest will not conduct an audit or take any other steps to verify the accuracy or authenticity of the information provided by the Issuer. The Issuer will notify First Southwest in writing of the retirement, prior to the scheduled maturity, of any Obligations included under the scope of this Agreement within 30 days of such retirement. This notification is required to provide sufficient time to comply with Treasury Regulations Section 1.148-3(g) which requires final payment of any Arbitrage Amount within 60 days of the final retirement of the Obligations. In the event the Issuer fails to notify First Southwest in a timely manner as provided hereinabove, First Southwest shall have no further obligation or responsibility to provide any services under this Agreement with respect to such retired Obligations. 5. In providing the services set forth in this Agreement, it is agreed that First Southwest shall not incur any liability for any error of judgment made in good faith by a responsible officer or officers thereof and, except to the limited extent set forth in this paragraph, shall not incur any liability for any other en•ors or omissions, unless it shall be proved that such error or omission was a result of the gross negligence or willful misconduct of said officer or officers. In the event a payment is assessed by the Internal Revenue Service due to an error by First Southwest, the Issuer will be responsible for paying the correct Arbitrage Amount and First Southwest's liability shall not exceed the amount of any penalty or interest imposed on the Arbitrage Arnount as a result of such error. Obligations Issued Subsequent to Initial Contract 6. The services contracted for larder this Agreement will automatically extend to any additional Obligations (including financing lease obligations) issued during the term of this Agreement, if such Obligations are subject to the rebate requirements under Section 148(f)(2) of the Code. In connection with the issuance of additional Obligations, the Issuer agrees to the following: a. The Issuer will notify or cause the notification, in writing, to First Southwest of any tax- exempt financing (including financing lease obligations) issued by the Issuer during any calendar year of this Agreement, and will provide First Southwest with such information regarding such Obligations as First Southwest may request in connection with its performance of the arbitrage rebate services contracted for hereunder. If such notice is not provided to First Southwest with regard to a particular issue, First Southwest shall have no obligation to provide any services hereunder with respect to such issue. Page 36 EXHIBIT 1 b. At the option of the Issuer, any additional Obligations to be issued subsequent to the execution of this Agreement may be excluded from the services provided for herein. In order to exclude an issue, the Issuer must notify First Southwest in writing of their intent to exclude any specific Obligations from the scope of this Agreement, which exclusion shall be permanent for the full life of the Obligations; and after receipt of such notice, First Southwest shall have no obligation to provide any services under this Agreement with respect to such excluded Obligations. Election to Pay Penalty in Lieu of Rebate 7. The services contracted for under this Agreement will automatically extend to any additional financing obligations issued during the stated term of this Agreement, if an election was made (prior to delivery of the Obligations) to pay penalty in lieu of rebate for a qualified construction bond issue under Section 148(£)(2) of the Code. In connection with extending the scope of this Agreement to include computations of penalty, the Issuer agrees to the following: a. The Issuer will notify First Southwest of any financing obligations issued by the Issuer during any calendar year of this Agreement for which a penalty election was made. The Issuer will provide First Southwest with such information regarding the investment and expenditure of such obligations as First Southwest deems necessary in connection with its performance of the penalty calculation services contracted for hereunder. At the option of the Issuer, any additional financing obligations issued subsequent to the execution of this Agreement may be excluded from the services provided for herein. The Issuuer must notify First Southwest in writing of its intent to exclude any specific financing obligations from the scope of this Agreement. Effective Date of Agreement 8. This Agreement shall become effective at the date of acceptance by the Issuer as set out herein below and remain in effect thereafter for a period of five (5) years from the date of acceptance, provided, however, that this Agreement may be terminated with or without cause by the Issuer or First Southwest upon thirty (30) days prior written notice to the other party. In the event of such termination, it is understood and agreed that only the amounts due to First Southwest for services provided and extraordinary expenses incurred to and including the date of termination will be due and payable. No penalty will be assessed for termination of this Agreement. In the event this Agreement is terminated prior to the completion of its stated term, all records provided to First Southwest with respect to the investment of monies by the Issuer shall be returned to the Issuer as soon as practicable following written request by Issuer. In addition, the parties hereto agree that, upon termination of this Agreement, First Southwest shall have no continuing obligation to the Issuer regarding any arbitrage rebate related services contemplated herein, regardless of whether such services have previously been undertaken, completed or performed. Acceptance of Agreement 9. This Agreement is submitted in duplicate originals. When accepted by the Issuer in accordance with the terms hereof, it, together with Appendix A attached hereto, will constitute the entire Agreement between the Issuer and First Southwest for the purposes and the consideration herein specified. In order for this Agreement to become effective, it must be accepted by the Issuer within sixty (60) days of the date appearing below the signature of First Southwest's authorized representative hereon. After the expiration of such 60 -day period, acceptance by the Issuer shall only become effective upon delivery of written actmowledgement and reaffirmation by Fust Southwest that the terms and conditions set forth in this Agreement remain acceptable to First Southwest. Page 37 EXHIBIT 1 Governing Law 10. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to its principles of conflicts of laws. Acceptance will be indicated on both copies and the return of one executed copy to First Southwest. Respectfully submitted, FIRST SOUTHWEST ASSET MANAGEMENT, INC. By Hill A. Feinberg, Chairman, Chief Exe e Officer Date ISSUER'S ACCEPTANCE CLAUSE The above and foregoing is hereby in all things accepted and approved by e/Ty D,& �f)r /_.�_To�, %�1` , on this the Z��l day of , 2012. By am- qn—tz= - Aut rized Vlesentative Title /9 i Tyr, e/ a /lQ '&ga4E- Printed NameJT Page 38 EXHIBIT 1 APPENDIX A — FEES The Obligations to be covered initially under this contract include all issues of tax-exempt obligations delivered subsequent to the effective dates of the rebate requirements, under the Code, except as set forth in Section I of the Agreement. The fee for any Obligations under this contract shall only be payable if a computation is required under Section 148(f)(2) of the Code. In the event that any of the Obligations fall within an exclusion to the computation requirement as defined by Section 148 of the Code or related regulations and no calculations were required by First Southwest to make that determination, no fee will be charged for such issue. For example, certain obligations are excluded from the rebate computation requirement if the proceeds are spent within specific time periods. In the event a particular issue of Obligations fiffils the exclusion requirements of the Code or related regulations, the specified fee will be waived by First Southwest if no calculations were required to make the determination. First Southwest's fee for arbitrage rebate services is based upon a fixed annual fee per issue. The annual fee is charged based upon the number of years that proceeds exist subject to rebate fiom the delivery date of the issue to the computation date. Fust Southwest's fees are payable upon delivery of the report. The first report will be made following one year from the date of delivery of the Obligations and on each computation date thereafter during the term of the Agreement. The fees for computations of the Arbitrage Amount which encompass more, or less, than one Computation Year shall be prorated to reflect the longer, or shorter, period of work performed during that period. The fee for each of the Obligations included in this contract shall be based on the table below. Additionally, clue to significant time saving efficiencies realized when investment information is submitted in an electronic format, First Southwest passes the savings to its clients by offering a 10% reduction in its fees if information is provided in a spreadsheet or electronic text file format. Description 777 Annual Fee ANNUAL FEE $1,400 COMPREHENSIVE ARBITRAGE COMPLIANCE SERVICES INCLUDE: • Commingled Funds Analysis & Calculations • Spending Exception Analysis & Calculations • Yield Restriction Analysis & Calculations (for yield restricted Project Funds, Reserve Funds, Escrow Funds, etc.) • Parity Reserve Fund Allocations • Transferred Proceeds Calculations • Universal Cap Calculations • Debt Service Fund Calculations (including earnings test when required) • Preparation of all Required IRS Paperwork for Malting a Rebate Payment / Yield INCLUDED Reduction Payment • Retention of Records Provided for Arbitrage Computations • IRS Audit Assistance • Delivery of Rebate Calculations Each Year That Meets the Timing Requirements of the Audit Schedule • On -Site Meetings, as Appropriate, to Discuss Calculation Results / Subsequent Planning Items OTHER SERVICES AVAILABLE: IRS Refund Request — Update calculation, prepare refund request package, and assist issuer as $750 necessary in responding to subsequent IRS Information Requests Commercial Paper Calculations — Per allocated issue $1,600 Page 39 EXHIBIT 1 EXPLANATION OF TERMS: a. Computation Year: A "Computation Year" represents a one year period from the delivery date of the issue to the date that is one calendar year after the delivery date, and each subsequent one-year period thereafter. Therefore, if a calculation is required that covers more than one "computation year," the annual fee is multiplied by the number of computation years contained in the calculation being performed. If a calculation includes a portion of a computation year, i.e., if the calculation includes 1 '/z computation years, Hien the base fee will be multiplied by 1.5. b. Electronic Data Submission: The data should be provided electronically in MS Excel or ASCII text file (comma delimited text preferred) with the date, description, dollar amount, and an activity code (if not in debit and credit format) on the same line in the file. c. Variable/Floating Rate Bond Issues: Special services are also required to perform the arbitrage rebate calculations for variable rate bonds. A bond is a variable rate bond if the interest rate paid on the bond is dependent upon an index which is subject to changes subsequent to the issuance of the bonds. The computational requirements of a variable rate issue are more complex than those of a fixed rate issue and, accordingly, require significantly more time to calculate. The additional complexity is primarily related to the computation of the bond yield, which must be calculated on a "bond year" basis. Additionally, the regulations provide certain flexibility in computing the bond yield and determining the arbitrage amount over the first IRS reporting period; consequently, increased calculations are required to determine which bond yield calculation produces the lowest arbitrage amount. d. Commingled Fund Allocations: By definition, a commingled fund is one that contains either proceeds of more than one bond issue or proceeds of a bond issue and non -bond proceeds (i.e., revenues) of $25,000 or more. The arbitrage regulations, while permitting the commingling of funds, require that the proceeds of the bond issue(s) be "carved out" for purposes of determining the arbitrage amount. Additionally, interest earnings must be allocated to the portion of the commingled fund that represents proceeds of the issue(s) in question. Permitted "safe -harbor" methods (that is, methods that are outlined in the arbitrage regulations and, accordingly, cannot be questioned by the IRS under audit), exist for allocating expenditures and interest earnings to issues in a commingled fund. First Southwest uses one of the applicable safe -harbor methods when doing these calculations. e. Debt Service Reserve Funds: The authorizing documents for many revenue bond issues require that a separate fund be established (the "Reserve Fund") into which either bond proceeds or revenues are deposited in an amount equal to some designated level, such as average annual debt service on all parity bonds. This Reserve Fund is established for the benefit of the bondholders as additional security for payment on the debt. In most cases, the balance in the Reserve Fund remains stable throughout the life of the bond issue. Reserve Funds, whether funded with bond proceeds or revenues, must be included in all rebate calculations. f. Debt Service Fund Calculations: Issuers are required under the regulations to analyze the invested balances in their debt service funds annually to determine whether the fund depletes as required during the year and is, therefore, "bona fide" (i.e., potentially exempt from rebate in that year). It is not uncommon for surplus balances to develop in the debt service fund that services an issuer's tax supported debt, particularly due to timing differences of when the funds were due to be collected versus when the funds were actually collected. First Southwest performs this formal analysis of the debt service fund and, should it be determined that a surplus balance exists in the fund during a given year, allocates the surplus balance among the various issues serviced by the fund in a manner that is acceptable under IRS review. g. Earnings Test for Debt Service Funds: Certain types of bond issues require an additional level of analysis for the debt service fund, even if the fund depletes as required under the regulations Page 40 EXHIBIT 1 and is "bona fide." For short-term, fixed rate issues, private activity issues, and variable rate issues, the regulations require that an "earnings test" be performed on a bona fide debt service fiend to determine if the interest earnings reached $100,000 during the year. In cases where the earnings reach or exceed the $100,000 threshold, the entire fiend (not just the surplus or residual portion) is subject to rebate. h. Transferred Proceeds Calculations: When a bond issue is refinanced (refunded) by another issue, special services relating to "transferred proceeds" calculations may need to be perfornied. Under the regulations, when proceeds of a refunding issue are used to retire principal of a prior issue, a pro -rata portion of the unspent proceeds of the prior issue becomes subject to rebate and/or yield restriction as transferred proceeds of the refunding issue. The refunding issue essentially "adopts" the unspent proceeds of the prior issue for purposes of the arbitrage calculations. These calculations are required under the regulations to ensure that issuers continue to exercise due diligence to complete the project(s) for which the prior bonds were issued. Universal Cap: Current regulations provide an overall limitation on the amount of gross proceeds allocable to an issue. Simply stated, the value of investments allocated to an issue cannot exceed the value of all outstanding bonds of the issue. For example, this situation can occur if an issuer encounters significant construction delays or enters into litigation with a contractor. It may take months or even years to resolve the problems and begin or resume spending the bond proceeds; however, during this time the debt set -vice payments are still being paid, including any scheduled principal payments. Thus, it's possible for the value of the investments purchased with bond proceeds to exceed the value of the bonds outstanding. In such cases, a "de -allocation" of proceeds may be required to comply with the limitation rules outlined in the regulations. j. Yield Restriction Analysis/Yield Reduction Computations: The IRS strongly encourages issuers to spend the proceeds of each bond issue as quickly as possible to achieve the governmental purpose for which the bonds were issued. Certain types of proceeds can qualify for a "temporary period," during which time the proceeds may be invested at a yield higher than the yield on the bonds without jeopardizing the tax-exempt status of the issue, The most common temporary period is the three-year temporary period for capital project proceeds. After the end of the temporary period, the proceeds must be yield restricted or the issuer must ren -fit the appropriate yield reduction payment when due. First Southwest performs a comprehensive yield restriction analysis when appropriate for all issues having proceeds remaining at the end of the applicable temporary period and also calculates the amount of the yield reduction payment due to the IRS. Page 41 EXHIBIT 2 Statement of Qualifications for Financial Advisor Services City of Denton, Texas September 21, 2016 © 2016 Hilltop Securities Inc. All rights reserved. Member FINRA/SIPC/NYSE EXHIBIT 2 We are honored to have the opportunity to present the firm's qualifications to continue to serve as financial advisor for the City of Denton, Texas (the "City"). First Southwest Company, LLC ("FirstSouthwest"), founded in 1946, was originally dedicated to serving the financing needs of local municipalities and over the years grew into a national firm with expertise in every sector of public finance. In 2015, Hilltop Securities Inc. (formerly Southwest Securities, Inc.) and FirstSouthwest became common control affiliates under Hilltop Holdings Inc., a Texas-based diversified financial holding company specializing in banking, mortgage origination, financial advisory and insurance through its wholly owned subsidiaries. On January 22, 2016, Hilltop S ecuritie s and FirstSouthwest merged to create a new, stronger firm with complementary business lines and a shared history representing more than 112 years of industry experience. The firm's financial advisory services are provided through "FirstSouthwest, a Division of Hilltop Securities Inc." ("FirstSouthwest"). 50 Public Finance Offices in 19 States 974 Employees Firm -Wide (approximately) 21 "Deal of the Year" Awards Reliable, Firsthand Market Information #1 Financial Advisor in the Nation for Number of Issues* `Source: Ipreo MuniAnalytics 9/1/2011 -8/31/2016 Top -Ranked Financial Advisor Our history of success in assisting clients in the achievement of their financial objectives and personal service is reflected in the number of transactions for which we have been privileged to serve our clients. FirstSouthwest IM A[}i,im, of H111mP Se ,nde © 2016 Hilltop Securities Inc. All rights reserved. Member FEVRA/SIPUNYSE A Decade as Financial Advisor National Experience FirstSouthwest, a Division of Hilltop Securities Source: Ipreo MuniAnalytics 2014 1,013 1 37.56 2 2013 1,025 1 29.95 3 2012 1,093 1 35.00 2 2011 953 1 26.82 2 2010 1,061 1 35.52 3 2009 837 2 29.04 3 2008 815 1 26.86 2 2007 1,020 1 37.35 2 2006 976 1 24.62 2 TOTAL 9,809 Issues $321.87 Billion For the five-year period ending August 31, 2016, Ipreo MuniAnalytics ranked FirstSouthwest as the number - one financial advisor in the nation based on number of issues, with a total of 5,218 transactions representing in excess of S 183.99 billion par amount. National Financial Advisor Rankings by Number of Deals FirstSouthwest, a Division of Hilltop Securities Inc. September 1, 2011 -August 31, 2016 Source: Ipreo MuniAnalytics FirstSouthwest Public Fin Mgmt 4,570 Fiscal Adv & Mkt 2,378 Capital Markets Adv 1,923 Ehlers 1,854; The table above includes issues from both Southwest Securities, Inc. and First Southwest Company, LLC. The two firms merged on January 22, 2016. Commitment to Texas and Cities FirstSouthwest is headquartered in Dallas, Texas, and currently has Texas public finance offices in Dallas, Fort Worth, Austin, Houston, San Antonio, Clifton, El Paso, and Pharr. We understand the nature of the work the City seeks, and the professionals who are based in our Fort p=ane 11 EXHIBIT 2 Worth office will coordinate and manage the City's engagement effectively and efficiently. Advantages of a Local Presence. The firm's close proximity to the City provides distinct advantages, including: ■ Commitment of local support to the City, offering readily available resources. ■ In-depth knowledge of Texas issuers, providing expertise that rivals that of any other firm. Our experience is constantly being built upon by participating in a multitude of public finance engagements for state, county, and city -level issuers within Texas, providing invaluable experience that will aid and benefit the City when securing funding for its infrastructure needs. According to 1preo MuniAnalytics, for the five-year period ending August 31, 2016, we are ranked as the number -one financial advisory firm in the State of Texas based on number of issues and par amount, with 2,905 transactions totaling S94.374 billion par amount. Texas Financial Advisory Rankings by Number of Deals FirstSouthwest, a Division of Hilltop Securities Inc. September 1, 2011 —August 31, 2016 Source: I reo MuniAnalytics FirstSouthwest I RBC Capital Mkts 553 Specialized Pub Fin 471 'I Estrada Hinojosa 358ii! SAMCO Cap Mkts 294 The table above includes issues from both Southwest Securities, Inc. and First Southwest Company, LLC. The two firms merged on January 22, 2016. Furthermore, for the five-year period ending August 31, 2016, we rank as the number -one financial advisor in the State of Texas for cities, based on number of issues and par amount with 875 transactions totaling S25.39 billion par amount. As a result, we are one of the nation's and State's leading financial advisors to city - level issuers and have worked with our client base to bring to market virtually every manner and type of debt. First5routhwest IM A M,imn of Niilt,p S,o,nde C 2016 Hilltop Securities Inc. All rights reserved. Member FIlVRA/SIPC/NYSE Texas Cities Financial Advisory Ranking by Number of Deals FirstSouthwest, a Division of Hilltop Securities Inc. September 1, 2011 —August 31, 2016 Source: I reo MuniAnalytics FirstSouthwest Specialized Pub Fin 176 Estrada Hinojosa 143 RBC Capital Mkts -72 Public Fin Mgmt 66' The table above includes issues from both Southwest Securities, Inc. and First Southwest Company, LLC. The two firms merged on January 22, 2016. Personnel & Public Finance Focus Hilltop Securities' Public Finance Department, FirstSouthwest, is one of the largest divisions in the firm. Public Finance, when combined with Sales, Trading, Underwriting and Retail Sales, comprises 50% of HilltopSecurities' total staff firm wide. The following graph, which shows the dispersion of personnel among the different service and support divisions of the firm, helps illustrate the weight of public finance in the firm. Providing the highest quality financial advisory services to issuers nationwide is our core business. Such commitment to the public sector ensures that the City will continue to receive attention from all corners of Hilltop S ecuriti e s. Personnel by Department (as of July 2016) Agency Trading Clearing 1! it Stoek Loan 1% Lured Finance 2% _ eompiiancelLegai 3% Municipal Cash Management 3% *Corporate Administration Includes Print Services, Accounting, and HR p=ane 12 EXHIBIT 2 At HilltopSecurities, we organize our Public Finance Department by industry, region, and product, giving us a focus group for nearly every type of public entity: state and local government projects, power, water/wastewater, economic development, housing, education, state revolving funds, transportation, and healthcare. As a leading advisor to state and local issuers nationwide, FirstSouthwest has responded to today's increasingly complex public finance landscape by raising the bar on the services, resources, and experience our firm offers. In fact, FirstSouthwest is the most well- equipped and resourceful investment banking firm in the nation. Expertise Across Sectors & Types FirstSouthwest has served as financial advisor to municipal issuers on virtually all types of municipal financings. The collective experience of our firm extends to the issuance of many different types of municipal debt for many kinds of municipal issuers, including but not limited to: ■ General Obligations ■ Fixed Rate Bonds ■ Special Tax ■ Variable Rate Bonds ■ Non -Ad Valorem (CB&A) ■ Gas Tax ■ Public Service Tax ■ Refunding Bonds ■ COPs ■ Synthetic Structures ■ Water & Sewer ■ Forward Delivery ■ Parking Revenues ■ Taxable Bonds ■ Toll Road Bonds ■ VRDOs ■ Rapid Transit FRNs ■ Solid Waste ■ Tax Increment Financing ■ Sales/Use Tax Bonds ■ Commercial Paper ■ Housing ■ ARRA Instruments ■ Revolving Funds ■ Tax Anticipation Notes ■ Healthcare ■ Bond Anticipation Notes ■ Higher Education ■ Grant Anticipation Notes ■ Ports ■ Bank Loans ■ School District ■ Leases ■ Public Power ■ Pooled Programs ■ Convention Center/Hotel ■ Special Districts ■ Industrial Revenue Bonds ■ Public Private ■ Lease Purchase Bonds Partnerships ■ Limited Tax ■ Airport Revenues ■ Special Assessments As financial advisor, the scope of services we offer is entirely comprehensive, constantly evolving, easily adaptable, and truly unmatched by that of other firms. FirstSouthwest A[}i,im, of H111t,p Se ,nde © 2016 Hilltop Securities Inc. All rights reserved. Member FEVRA/SIPUNYSE Rating Experience For the past five years, FirstSouthwest served as financial advisor on 4,139 long-term bond issues nationwide (Source: Ipreo MuniAnalytics). Of these, 3,900 were rated by at least one of the major agencies, meaning that our firm averages approximately 15 rated transactions per week. The following table notes the impressive percentage of relevant rated transactions where FirstSouthwest served as financial advisor. As a result of our experience, FirstSouthwest has relationships with Moody's Investors Service, Standard & Poor's, Fitch, and Kroll. This continual "hands-on" exposure to all aspects of the rating process affords the City a major advantage: an in-depth understanding of the rating agencies' typical concerns regarding municipal government credits. We will closely guide the City through the presentation process in order to help the City achieve its rating goals. Reflecting the importance FirstSouthwest places on assisting clients in their interactions with rating agencies, FirstSouthwest employs two former rating agency analysts, including Ms. Angela Kukoda, Director, who is part of the financial advisory team assembled to support the City. She joined FirstSouthwest from Standard and Poor's Corporation. As a result, she offers the City unparalleled insight into the thought process of the agencies, including the factors considered in the rating process of the City and their relative influence. Ms. Kukoda can share such historical knowledge, as well as her experience participating in numerous rating agency presentations as a rating agency analyst. However, the greatest value she offers the City is insight into how proposed financing plans, and changes in financial, tax, investment and debt policies may or may not affect the credit rating of the City going forward. p=ane 13 EXHIBIT 2 Bond Pricing Support FirstSouthwest will represent the City in all areas of bond pricing and sale. In addition to our extensive capital markets support throughout the negotiated sale process, FirstSouthwest routinely provides our clients with pre and post -sale analysis of its financing. This includes market information and news, economic data, and comparables that are used for benchmarking purposes. In our role as financial advisor, FirstSouthwest's capital markets group routinely provides recommendations regarding the following matters based on their active market involvement and extensive institutional investor relationships: ■ Structure ■ Call options and premiums ■ Yields ■ Coupons ■ Placement of Term Bonds and pricing ■ Serial Bonds and Pricing ■ Capital Appreciation Bonds and pricing ■ Cost effectiveness of insurance ■ Credit aspects ■ Underwriters' takedown and spread ■ Syndicate rules ■ Allocation of bonds In short, our capital markets capabilities and expertise provide an enormous advantage to the City and differentiate FirstSouthwest from "independenf' advisory firms, which do not have principal market involvement and capabilities. Although the City may only require some of these services to be provided by FirstSouthwest, the expertise of all the professionals in these auxiliary areas is shared with the public finance professionals and utilized when specific questions arise. FirstSouthwest is not only an experienced financial advisory firm, but also a registered broker-dealer and underwriter of new issue municipal securities. This means that we are uniquely qualified among financial advisory firms to monitor existing transactions, provide timely market developments, recommend appropriate structures, and provide advice on the timing of offerings for our financial advisor clients. Importantly however, FirstSouthwest will not underwrite any of the City's securities while serving as financial advisor. In many ways, our financial advisory clients have the advantage of drawing upon the advice and recommendations of not only their own underwriters, but also the underwriters FirstSouthwest jM A[}i,im, of H111mP Se ,nde © 2016 Hilltop Securities Inc. All rights reserved. Member FEVRA/SIPC/NYSE on FirstSouthwest's desks, as the 30+ year professionals spend approximately 70% of their time assisting our financial advisory clients. Our underwriting professionals work in partnership with our financial advisory professionals from the beginning preliminary structuring, updating with current scales and coupon ideas, call features, to priority of order decisions and final allocations of the senior managing underwriter. They understand all facets of the underwriting process, from how to capture the largest retail sales percentage to working with the most difficult institutional orders. This unparalleled expertise has provided our financial advisory clients superior services compared to "independent" financial advisors that do not employ these professionals. Our local team can cite numerous examples in which our underwriting and trading desks have provided valuable information and recommendations that ultimately led to the lowest possible cost of borrowing for our financial advisory clients. Our underwriting desk has successfully negotiated lower takedowns and yield reductions at pricing on behalf of clients. In comparison, financial advisors that are not registered broker-dealers do not have access to the same level of timely market data and institutional contacts and must obtain pricing information from third -party underwriters or via other indirect means. Oftentimes, financial advisory firms that do not operate their own underwriting desks request market data from us, regardless of whether we have a vested interest in the transaction for which they are requesting information. Our clients directly and significantly benefit from this firsthand, direct, real-time market participation. We strongly believe that this approach distinguishes our services from our competitors, but most importantly, it provides a higher quality service to our clients and allows them to achieve the lowest possible cost of borrowing. The City can be confident that when the time arrives to price its issue, our professional capital markets staff will assist over every detail of the transaction and obtain the most value for the securities the market will allow. Ancillary Services Our Public Finance Department is structured to provide clients with access to multiple professionals with expertise in diverse areas of finance. The following table summarizes the volume of our participation providing these select services. p=ane 14 EXHIBIT 2 For the five year period ending June 30, 2016, the firm has served as swap advisor on 222 transactions totaling over $10.6 Structured Products billion in notional amount. Additionally, the firm has served as the bidding agent for 608 transactions totaling over $38.9 billion in notional amount. During the five-year period ending June 30, 2016, served as senior or co -managing Underwriting underwriter on approximately 2,369 transactions totaling $200.23 billion par amount MunlAnal Members of the firm have reviewed over 2,000 pension and OPEB actuarial studies and related CAFRs. Our firm has OPEB Consulting worked with independent actuaries to review pension studies, including TMRS members. In some cases, there were material changes. Sources: * *Internal Database unless otherwise specified FirstSouthwest jM A[}i,im, of H111mP Se ,nde © 2016 Hilltop Securities Inc. All rights reserved. Member FENRA/SIPUNYSE p=ane 15 As of June 30, 2016, provided Arbitrage Rebate calculations to approximately Calculation 380 clients on more than 2,875 Services bond issues, totaling $166 billion par amount Provides services for Continuing approximately 700 clients and Disclosure Services annually files more than 800 reports As of June 30, 2016, actively manages $9.05 billion for 40 Investment state and local governments; Management also serves as the investment advisor for an additional $5.11 hillinn a tntal of X14 16 hillinn For the five year period ending June 30, 2016, the firm has served as swap advisor on 222 transactions totaling over $10.6 Structured Products billion in notional amount. Additionally, the firm has served as the bidding agent for 608 transactions totaling over $38.9 billion in notional amount. During the five-year period ending June 30, 2016, served as senior or co -managing Underwriting underwriter on approximately 2,369 transactions totaling $200.23 billion par amount MunlAnal Members of the firm have reviewed over 2,000 pension and OPEB actuarial studies and related CAFRs. Our firm has OPEB Consulting worked with independent actuaries to review pension studies, including TMRS members. In some cases, there were material changes. Sources: * *Internal Database unless otherwise specified FirstSouthwest jM A[}i,im, of H111mP Se ,nde © 2016 Hilltop Securities Inc. All rights reserved. Member FENRA/SIPUNYSE p=ane 15 EXHIBIT 2 © 2016 Hilltop Securities Inc. All rights reserved. Member FEVRA/SIPC/NYSE EXHIBIT 3 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONSULTING SERVICES AGREEMENT FOR FINANCIAL ADVISORY, ARBITRAGE REBATE AND CONTINUING DISCLOSURE SERVICES FOR THE CITY OF DENTON; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 6228—AWARDED TO FIR STSOUTHWEST, A DIVISION OF HILLTOP SECURITIES INC. AND FSC CONTINUING DISCLOSURE SERVICES, A DIVISION OF HILLTOP SECURITIES INC., HEREINAFTER CALLED "HILLTOP SECURITIES" AND AFFILIATE, FIRST SOUTHWEST ASSET MANAGEMENT, LLC). WHEREAS, The professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to enter into a professional service contract with FirstSouthwest, a Division of Hilltop Securities Inc. and FSC Continuing Disclosure Services, a Division of Hilltop Securities Inc., hereinafter called "Hilltop Securities" and affiliate, First Southwest Asset Management, LLC, to provide Financial Advisory, Arbitrage Rebate and Continuing Disclosure Services for the City of Denton, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 6228 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. EXHIBIT 3 CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY :• APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: EXHIBIT 4 N ON City of Denton Contract # 6228 Consulting Services - Financial Page 1 EXHIBIT 4 CONTRACT #6228 CONSULTING SERVICES AGREEMENT FOR FINANCIAL ADVISORY, ARBITRAGE REBATE AND CONTINUING DISCLOSURE SERVICES STATE OF TEXAS § COUNTY OF DENTON This agreement, made this day of 2016, by and between the City of Denton, A Texas municipal corporation, with its principal office at 215 East McKinnev Street. Denton Denton County, Texas 76201, hereinafter called "CITY" and FirstSouthwest, a Division of Hilltop Securities Inc. and FSC Continuing Disclosure Services, a Division of Hilltop Securities Inc., with an office at 777 Main Street, Suite 1200, Fort Worth, Texas 76102, hereinafter called "HilltopSecurities" or "CONSULTANT," and CONSULTANT's affiliate, First Southwest Asset Management, LLC, with its corporate office at 1201 Elm Street Suite 3500 Dallas, Texas 75270, hereinafter called ("FSAM"), acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I - EMPLOYMENT OF CONSULTANT The CITY hereby contracts with the CONSULTANT and FSAM, as independent contractors, and the CONSULTANT and FSAM hereby agree to perform the services herein in connection with the Projects as stated in the sections to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described projects: The Projects shall include, without limitation, the provision of financial advisory and continuing disclosure services to be performed by the Consultant and the provision of arbitrage rebate services to be performed by FSAM. ARTICLE II - SCOPE OF SERVICES The CONSULTANT and FSAM shall perfonn the following services in a professional manner: A. CONSULTANT shall perform all those services set forth in the Financial Advisory Agreement attached hereto as Exhibit A, which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements. Page 2 EXHIBIT 4 B. CONSULTANT shall perfor:rt all those services set forth in the Continuing Disclosure Services Agreement attached hereto as Exhibit B, which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements. C. FSAM shall perform all those services set forth in the Arbitrage Rebate Services Agreement attached hereto as Exhibit C, which shall be attached to this Agreement and made a part hereof for all purposes as separate agreements. D. If there is any conflict between the terms of this Agreement and the attached attacl-unents to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached attachments. ARTICLE III -ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT and FSAM, if authorized by the CITY, which are not included in the above-described Scope of Services, are described as follows: (list all additional services that may be required for the project) Not applicable. ARTICLE IV - PERIOD OF SERVICE The initial term for the agreement specified herein, shall be for a five (5) year period commencing February 21, 2017 and ending February 20, 2022. This contract may be extended for emergency purposes for an additional six (6) month period, upon written mutual agreement of the parties. This Agreement shall become effective upon execution of this Agreement by the CITY and the CONSULTANT and FSAM and upon issue of a notice to proceed by the CITY, and shall remain in force during the term of the respective agreements attached hereto and any required extensions approved by the CITY. This Agreement may be sooner terminated in accordance with the provisions in Article XII and the respective agreements may be terminated pursuant to each such agreement's terms. Time is of the essence in this Agreement. The CONSULTANT and FSAM shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its City Manager or his designee. ARTICLE V - COMPENSATION A. COMPENSATION TERMS: 1. "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of financial advisory, Palle 3 EXHIBIT 4 arbitrage rebate and continuing disclosure. 2. "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation, equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT and FSAM herein, the CITY agrees to pay, based on the terms of the agreements attached hereto. Partial payments to the CONSULTANT and FSAM will be made on the basis of detailed monthly statements rendered to and approved by the CITY through its City Manager or his designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The CITY may withhold the final five (5%) percent of the contract amount, until completion of the Projects. Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory, as reasonably detennined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The CITY shall not be required to make any payments to the CONSULTANT or FSAM when the CONSULTANT or FSAM, respectively, is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT and/or FSAM shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CITY for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the CITY. The CONSULTANT and FSAM shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the CITY. C. ADDITIONAL SERVICES: For additional services authorized in writing by t he CITY in Article 111, the CONSULTANT and/or FSAM shall be paid pursuant to the attached agreements. Payments for additional services shall be due and payable upon submission by the CONSULTANT and/or FSAM, and shall be in accordance with subsection B hereof. Statements shall not be submitted more frequently than monthly. D. PAYMENT: If the CITY fails to make undisputed payments due the CONSULTANT and/or FSAM for services and expenses within thirty (30) days after receipt of the CONSULTANT's and/or Page 4 EXHIBIT 4 FSA Ws s undisputed statement thereof, prompt payment act interest as set forth in Chapter 2251 of the Texas Government Code shall be paid on the amounts due the CONSULTANT and/or FSAM. In addition, the CONSULTANT and/or FSAM may, if payment is not received by the thirty-first day (31") after receipt of the statement, after giving ten (10) days' written notice to the CITY, suspend services under this Agreement until the CONSULTANT and/or FSAM has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the CITY to pay prompt payment act interest if the CITY has a bona fide dispute with the CONSULTANT and/or FSAM concerning the payment or if the CITY reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation." ARTICLE VI - OBSERVATION AND REVIEW OF THE WORK The CONSULTANT and FSAM will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in the work of the CONSULTANT or FSAM or any subcontractors or sub consultants. ARTICLE VII - OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT and FSAM pursuant to this Agreement are instruments of service, and shall become the property of the CITY upon the termination of this Agreement. The CONSULTANT and FSAM are entitled to retain copies of all such documents. The documents prepared and furnished by the CONSULTANT and FSAM are intended only to be applicable to this Project, and CITY's use of these documents in other projects shall be at CITY's sole risk and expense. In the event the CITY uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT and FSAM are released from any and all liability relating to their use in that project. ARTICLE VIII - INDEPENDENT CONTRACTOR CONSULTANT and FSAM shall provide services to CITY as independent contractors, not as employees of the CITY. CONSULTANT and FSAM shall not have or claim any right arising from employee status. ARTICLE IX - INDEMNITY AGREEMENT The CITY and CONSULTANT and FSAM agree to cooperate in the defense claims, actions, suits, or proceedings of any kind brought by a third party which may result from or directly or indirectly arise from any breach of the CONSULTANT'S and FSAM's obligations under this agreement. In the event of any litigation or claim under this Page 5 I M4 I 11] Il I[! Agreement in which the CITY is joined as a party, CONSULTANT AND FSAM shall provide competent legal counsel to defend CITY, CONSULTANT AND FSAM against such claim, provided that CONSULTANT shall have the right to proceed with the competent legal counsel of its own choosing. The CONSULTANT AND FSAM agrees to defend, indemnify, and hold harmless the CITY and all of its officers, agents, servants, and employees against any all such claims to the extent of coverage by CONSULTANT'S AND FSAM'S commercial liability policy. The CONSULTANT and FSAM agrees to pay all expenses, including, but not limited to attorney's fees, costs of court, reasonable expenses, and satisfy all judgments, which may be incurred or rendered against the CONSULTANT'S AND FSAM'S commercial liability insurance policy. Nothing herein constitutes a waiver of any rights or remedies the CITY may have to pursue under either law or equity, including, without limitations, a cause of action for specific performance or for damages, a loss to the CITY resulting from CONSULTANT'S AND FSAM'S negligent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE X -INSURANCE During the performance of the services under this Agreement, CONSULTANT and FSAM shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A or above: A. Comprehensive General Liability Insurance with bodily injury Iimits of not less than $500,000 for each occul fence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. Automobile Liability insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. C. Worker's Compensation insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual a ggregate. E. The CONSULTANT and FSAM shall furnish insurance certificates or insurance policies at the CITY's request to evidence such coverages. The insurance policies shall name the Pay*e 6 EXHIBIT 4 CITY as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to CITY and CONSULTANT and FSAM. In such event, the CONSULTANT and FSAM shall, prior to the effective date of the change, or cancellation, serve substitute policies furnishing the same coverage. ARTICLE XI - ARBITRATION AND ALTERiNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to mediation. No mediation arising out of or relating to this Agreement may proceed without the agreement of both parties to submit the dispute to mediation. The location for the mediation shall be the City of Denton, Denton County, Texas unless a different location is agreed ARTICLE XIi - TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such tennination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non- perfonnance, and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT and/or FSAM shall immediately cease all services and shall render a final bill for services to the CITY within thirty (30) days after the date of termination. The CITY shall pay CONSULTANT and FSAM for all services properly rendered and satisfactorily perfonned and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article V "Compensation." Should the CITY subsequently contract with anew consultant for the continuation of services on the Project, CONSULTANT and/or FSAM shall cooperate in providing information. The CONSULTANT and FSAM shall tum over all documents prepared or furnished by CONSULTANT and FSAM pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE XIII - RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT or FSAM, its employees, associates, agents, subcontractors, and sub consultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the CITY for any defect in Page 7 EXHIBIT 4 the design or other work prepared by the CONSULTANT or FSAM its employees, subcontractors, agents, and consultants. CONSULTANT and FSAM retain, design responsibility and liability at all times during this Agreement and after completion of this Agreement. ARTICLE XIV —NOTICES All notices, communications, and reports required or pennitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CONSULTANT: FirstSouthwest, a Division of Hilltop Securities Inc. David Medanich, Vice Chairman 777 Main Street, Suite 1200 Fort Worth, Texas 76102 To FSAM First Southwest Asset Management, LLC William Johnson, Managing Director 1201 Elm Street, Suite 3500 Dallas, Texas 75270 To- CITY: City of Denton Charles Springer, Chief Financial Officer 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE XV - SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XVI - COMPLIANCE WITH LAWS The CONSULTANT and FSAM shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE XVII — ETHICAL REQUIREMENTS The Consultant covenants and agrees that its officers, employees, and agents will have no interest, including personal financial interest, and will acquire no interest, either directly or indirectly, which will conflict in any manner with the performance of the services called for Page 8 EXHIBIT 4 under this agreement. No officer or employee of the City shall have a financial interest, direct or indirect, in any contract with the City, or be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies or services, except on behalf of the City or in compliance with the provisions of the City of Denton's Personnel Policies and Procedures Manual. Any violation of this provision shall render this Agreement voidable at the discretion of the City. ARTICLE XVIII -DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT and FSAM shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIX - PERSONNEL A. The CONSULTANT and FSAM represent that they have or will secure, at their own expense, all personnel required to perforin all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. CONSULTANT and FSAM shall inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. B. All services required hereunder will be performed by the CONSULTANT and/or FSAM. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. C. In those instances deemed necessary by the CITY, the CONSULTANT and/or FSAM and/or their employees shall be required to submit to background checks. ARTICLE XX - ASSIGNABILITY The CONSULTANT or FSAM shall not assign any of its scope of work under in this Agreement, and shall not transfer any of its scope of work under this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. Should the CONSULTANT or FSAM assign any part of the monies due under this Agreement, CONSULTANT or FSAM is required to provide written notice of the same to CITY. Any assignment of monies due under this Agreement shall not change any of the terms or conditions of this Agreement to include but not limited to the terms and conditions for payment under this Agreement. ARTICLE XXI - MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or Page 9 EXHIBIT 4 obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE XXII — VENUE This Agreement shall be governed by the laws of the State of Texas, venue and jurisdiction of any suit or cause of action arising under this agreement shall lie exclusively in a court of competent jurisdiction sitting in Denton County, Texas. ARTICLE XXIII - RIGHT TO AUDIT The CITY shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CONSULTANT and FSAM shall retain such books, records, documents and other evidence pertaining to this Agreement during the contract period and five ( 5 ) 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 shalt be available, within 10 business days of written request. Further, the CONSULTANT and FSAM shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, 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 CONSULTANT and/or FSAM, which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the CITY'S sole discretion, grounds for tennination thereof. Each of the ten -ns "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. ARTICLE XXIV - MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: Exhibit A, Financial Advisory Agreement; Exhibit B, Continuing Disclosure Services Agree}nent, Exhibit C, Arbitrate Rebate Services Agreement, and Exhibit D Municipal Advisor Disclosure C to tarn an t B. For the purpose of this Agreement, the key persons who will perfonn most of the work hereunder shall be David Medanich and William Johnson. However, nothing herein shall limit CONSULTANT and FSAM from using other qualified and competent members of its firm to perform the services required herein. CONSULTANT and FSAM understand that CITY is to be informed of the removal or loss of any of the key persons working under this Agreement. Page 10 EXHIBIT 4 CONSULTANT and FSAM also agree to provide the CITY with notice of the name(s) of who it intends to replace the key person. CITY shall have a right to reject any replacement key person(s) and CONSULTANT and FSAM agree to name a replacement key person(s) acceptable to the CITY. C. CONSULTANT and FSAM shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof In accomplishing the projects, CONSULTANT and FSAM shall take such steps as are appropriate to ensure that the work involved is properly performed. D. The CITY shall assist the CONSULTANT and FSAM by placing at the CONSULTANT's and FSAM's disposal all available information pertinent to the Projects, including previous reports, any other data relative to the Projects, and arranging for the access thereto, and make all provisions for the CONSULTANT and FSAM to enter in or upon public and private property as required for the CONSULTANT and FSAM to perforin services under this Agreement. E. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. ARTICLE XXV - ENTIRE AGREEMENT This Agreement, consisting of thirty-nine (39) pages and four (4) exhibits, constitutes the complete and final expression of the agreement of the patties, and is intended as a complete and exclusive statement of the terrns of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE XXVI — REQUIRED DISCLOSURES CONSULTANT is providing its Municipal Advisor Disclosure Statement (the "Disclosure Statement"), current as of the date of this Agreement, setting forth disclosures by CONSULTANT of material conflicts of interest, if any, and of any legal or disciplinary events required to be disclosed pursuant to Municipal Securities Rulemaking Board Rule G-42. The Disclosure Statement, attached hereto as Exhibit D, also describes how CONSULTANT addresses or intends to manage or mitigate any disclosed conflicts of interest, as well as the specific type of information regarding, and the date of the last material change, if any, to the legal and disciplinary events required to be disclosed on Forms MA and MA -1 filed by CONSULTANT with the Securities and Exchange Commission. Page 1 1 EXHIBIT 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this the day of , 20 CITY OF DENTON, TEXAS HOWARD MARTIN, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY CONSULTANT t, BY: `� 4 HILL A. FEINBERG CHAIRMAN AND CEO FSAM BY: 744 Z-6� HILL A. FEINBERG CHAIRMAN AND CEO Page 12 EXHIBIT 4 Exhibit A FINANCIAL ADVISORY AGREEINIENT This Financial Advisory Agreement (the "Agreement") is made and entered into by and between the City of Denton, Texas ("Issuer") and FirstSouthwest, a Division of Hilltop Securities Inc. ("FSW") effective as of the date executed by the Issuer as set forth on the signature page hereof. WITNESSETH: WHEREAS, the Issuer will have under consideration from time to tin 1 e the authorization and issuance of indebtedness in amounts and fonr3s which cannot presently be determined and, in connection wit€1 the authorization, sale, issuance and delivery of such indebtedness, Issuer desires to retain an independent financial advisor; and WHEREAS, the Issuer desires to obtain the professional services of FSW to advise the Issuer regarding the issuance and sale of certain evidences of indebtedness or debt obligations that may be authorized and issued or otherwise created or assumed by the Issuer (hereinafter referred to collectively as the "Debt Instruments") from time to time during the period in which this Agreement shall be effective; and WHEREAS, FSW is willing to provide its professional services and its facilities as financial advisor in connection with all programs of financing as may be considered and authorized by Issuer during the period in which this Agreement shall be effective. NOW, THEREFORE, the Issuer and FSW, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, do hereby agree as follows: SECTION I - DESCRIPTION OF SERVICES Upon the request of an authorized representative of the Issuer, FSW agrees to perform the financial advisory services stated in the following provisions of this Section 1; and for having rendered such services, the Issuer agrees to pay to FSW the compensation as provided in Section V hereof. Page 13 EXHIBIT 4 A. Financial Planning. At the direction of Issuer, FSW shall: 1. Surrey and Analysis. Conduct a survey of the financial resources of the Issuer to determine the extent of its capacity to authorize, issue and service any Debt Instruments contemplated_ This survey will include an analysis of any existing debt structure as compared with the existing and projected sources of revenues which may be pledged to secure payment of debt service and, where appropriate, will include a study of the trend of the assessed valuation, taxing power and present and future taxing requirements of the Issuer. In the event revenues of existing or projected facilities operated by the Issuer are to be pledged to repayment of the Debt Instruments then under consideration, the survey will take into account any outstanding indebtedness payable from the revenues thereof, additional revenues to be available from any proposed rate increases and additional revenues, as projected by consulting engineers employed by the Issuer, resulting from improvements to be financed by the Debt Instruments lander consideration. 2 Future Financings. Consider and analyze future financing needs as projected by the Issuer's staff and consulting engineers or other experts, if any, employed by the Issuer. 3. Recommendations for Debt Instruments On the basis of the information developed by the survey described above, and other information and experience available, submit to the Issuer recommendations regarding the Debt Instruments under consideration, including such elements as the date of issue, interest payment dates, schedule of principal maturities, options of prior payinent, security provisions, and such other provisions as may be appropriate in order to make the issue attractive to investors while achieving the objectives of the Issuer. All recommendations will be consistent with the goal of designing the Debt Instruments to be sold on terms which are advantageous to the Issuer, including the lowest interest cost consistent with all other considerations. 4. Market Information. Advise the Issuer of our interpretation of current bond market conditions, other related forthcoming bond issues and general information, with economic data, which might nonnally be expected to influence interest rates or bidding conditions so that the date of sale of the Debt Instruments may be set at a favorable time. 5. Elections. In the event it is necessary to hold an election to authorize the Debt Instruments then under consideration, FSW will assist in coordinating the assembly of such Page 14 EXHIBIT 4 data as may be required for the preparation of necessary petitions. orders, resolutions, ordinances, notices and certificates in connection with the election, including assistance in the transmission of such data to a finn of municipal bond attorneys ("Band Counsel") retained by the Issuer. B. Debt Management and Financial Implementation. At the direction of Issuer, FSW shall: 1. Method of Sale. Evaluate the particular financing being contemplated, giving consideration to the complexity, market acceptance, rating, size and structure in order to make a recommendation as to an appropriate method of sale, and: a. if the Debt Instruments are to be sold by an advertised competitive sale, FSW will: (1) Supervise the sale of the Debt Instruments; (2) Disseminate information to prospective bidders, organize such informational meetings as may be necessary, and facilitate prospective bidders' efforts in making timely submission of proper bids; (3) Assist the staff of the Issuer in coordinating the receipt of bids, the safekeeping of good faith checks and the tabulation and comparison of submitted bids; and (4) Advise. the Issuer regarding the best bid and provide advice regarding acceptance or rejection of the bids. b. If the Debt Instruments are to be sold by negotiated sale, FSW will: (1) Recommend for Issuer's final approval and acceptance one or more investment banking fines as managers of an underwriting syndicate for the purpose of negotiating the purchase of the Debt Instruments. (2) Cooperate with and assist any selected managing underwriter and their counsel in connection with their efforts to prepare any Official Statement or Offering Memorandum. FSW will cooperate with and assist the underwriters in the preparation of a bond purchase contract, an underwriter's agreement and Page 1 EXHIBIT 4 other related documents. The costs incurred in such efforts, including the printing of the documents, will be paid in accordance with the ten -ns of the Issuer's agreement with the underwriters, but shall not be or become an obligation of FSW, except to the extent specifically provided otherwise in this Agreement or assumed in writing by FSW. (3) Assist the staff of the Issuer in the safekeeping of any good faith checks, to the extent there are any such, and provide a cost comparison, for both expenses and interest which are suggested by the underwriters, to the then current market. (4) Advise the Issuer as to the fairness of the price offered by the underwriters. 2. Offering Documents. Coordinate the preparation of the notice of sale and bidding instructions, official statement, official bid form and such other documents as may be required and submit all such documents to the Issuer for examination, approval and certification. After such examination, approval and certification, FSW shall provide the Issuer with a supply of all such documents sufficient to its needs and distribute by mail or, where appropriate, by electronic delivery, sets of the same to prospective purchasers of the Debt Instruments. Also, FSW shall provide copies of the final Official Statement to the purchaser of the Debt Instruments in accordance with the Notice of Sale and Bidding Instructions. 3. Credit Ratings. Make recommendations to the Issuer as to the advisability of obtaining a credit rating, or ratings, for the Debt Instruments and, when directed by the Issuer, coordinate the preparation of such information as may be appropriate for submission to the rating agency, or agencies. In those cases where the advisability of personal presentation of information to the rating agency, or agencies, may be indicated, F S W will arrange for such personal presentations, utilizing such composition of representatives from the Issuer as may be finally approved or directed by the Issuer. 4. Trustee, Paying Agent. Registrar. Upon request, counsel with the Issuer in the selection of a Trustee and/or Paying Agent/Registrar for the Debt Instruments, and assist in the negotiation of agreements pertinent to these services and the fees incident thereto. 5. Financial Publications. When appropriate, advise financial publications of the forthcoming sale of the Debt Instruments and provide them with all pertinent information. Page 16 EXHIBIT 4 6. Consultants. After consulting with and receiving directions from the Issuer, arrange for such reports and opinions of recognized independent consultants as may be appropriate for the successful marketing of the Debt Instruments. 7. Auditors. In the event formal verification by an independent auditor of any calculations incident to the Debt Instruments is required, make arrangements for such services. S. Issuer Meetings. Attend meetings of the governing body of the Issuer, its staff, representatives or committees as requested at all times when FSW may be of assistance or service and the subject of financing is to be discussed. 9. Printing. To the extent authorized by the Issuer, coordinate all work incident to printing of the offering documents and the Debt Instruments. 10. Bond Counsel. Maintain liaison with Bond Counsel in the preparation of all legal documents pertaining to the authorization, sale and issuance of the Debt h7struments. 11. Changes in Laws. Provide to the Issuer copies of proposed or enacted changes in federal and state laws, rules and regulations having, or expected to have, a significant effect on the municipal bond market of which FSW becomes aware in the ordinary course of its business, it being understood that FSW does not and may not act as an Attorney for, or provide legal advice or services to, the Issuer. 12. Delivery of Debt Instruments. As soon as a bid for the Debt Instruments is accepted by the Issuer, coordinate the efforts of all concerned to the end that the Debt Instruments may be delivered and paid for as expeditiously as possible and assist the Issuer in the preparation or verification of final closing figures incident to the delivery of the Debt Instruments. 1;. Debt Service Schedule. Authorizing Resolution. After the closing of the sale and delivery of the Debt Instruments, deliver to the Issuer a schedule of annual debt service requirements for the Debt Instruments and, in coordination with Bond Counsel, assure that the paying agent/registrar and/or trustee has been provided with a copy of the authorizing ordinance, order or resolution. Page 17 EXHIBIT 4 SECTION II - TERM OF AGREEMENT This Agreement shall become effective as of the date executed by the Issuer as set forth on the signature page hereof and, unless terminated by either party pursuant to Section IV of this Agreement, shall remain in effect thereafter for a period of five (5) years from such date. SECTION III - TERMINATION This Agreement may be terminated with or without cause by the Issuer or FSW upon the giving of at least thirty (30) days' prior written notice to the other party of its intention to terminate, specifying in such notice the effective date of such termination. In the event of such termination, it is understood and agreed that only the amounts due FSW for services provided and expenses incurred to the date of termination will be due and payable. No penalty will be assessed for termination of this Agreement. SECTION IV - COMPENSATION AND EXPENSE REIMBURSEMENT The fees due to FSW for the services set forth and described in Section I of this Agreement with respect to each issuance of Debt Instruments during the tern of this Agreement shall be calculated in accordance with the schedule set forth on Appendix A attached hereto. Unless specifically provided otherwise on Appendix A or in a separate written agreement between Issuer and FSW, such fees, together with any other fees as may have been mutually agreed upon and all expenses for which FSW is entitled to reimbursement, shall become due and payable concurrently with the delivery of the Debt Instruments to the purchaser. SECTIONV- MISCELLANEOUS 1. Choice of Law. This Agreement shall be construed and given effect in accordance with the laws of the State of Texas. 2. Binding Effect: Assignment. This Agreement shall be binding upon and inure to the benefit of the Issuer and FSW, their respective successors and assigns; provided however, neither party hereto may assign or transfer any of its rights or obligations hereunder without the prior written consent of the other party. 3. Entire Agreement. This instrument contains the entire agreement between the parties relating Page 18 EXHIBIT 4 to the rights herein granted and obligations herein assn ned. Any oral or written representations or modifications concerning this Agreement shall be of no force or effect except for a subsequent modification in writing signed by all parties hereto. FIRSTSOUTHWEST, A DIVISION OF HILLTOP SECURITIES INC. BY: David K. Med ch, Vice Chairman BY: Laura B. Alexander, Managing Director CITY OF DENTON, TEXAS MM TITLE: CITY MANAGER DATE: ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY mm Page 19 EXHIBIT 4 APPENDIX A The fees due FSW will not exceed those contained in the fee schedule as listed below. Base Fee -Any Issue $25,000 Plus $1.00 per 1,000 up to and including $25,000,000 Plus $0.75 per $1,000 over $25,000,000 The charges for ancillary services, including official state3nent printing, shall be levied only for those services which are reasonably necessary in completing the transaction and which are reasonable in amount, unless such charges were incurred at the specific direction of the Issuer. The payment of charges for financial advisory services described in Section 1 of the foregoing Agreement shall be contingent upon the delivel y of ' bonds and shall be due at the time that bonds are delivered. . The Issuer shall be responsible for the following expenses, if and when applicable, whether they are charged to the Issuer directly as expenses or charged to the Issuer by FSW as reimbursable expenses: Bond counsel Bond printing Bond ratings Credit enhancement CPA fees for refunding Official statement printing Paying agent/registrar/trustee Travel expenses Underwriter and underwriters counsel Miscellaneous, including copy, delivery, and phone charges The payment of reimbursable expenses that FSW has assumed on behalf of the Issuer shall NOT be contingent upon the delivery of bonds and shall be due at the time that services are rendered and pqvable upon rceeiptofan invoice therefor submitted by FSW. Page 20 EXHIBIT 4 Exhibit B AGREEMENT FOR CONTINUING DISCLOSURE SERVICES BY AND BETWEEN CITY OF DENTON, TEXAS {HEREINAFTER REFERRED TO AS THE "ISSUER") AND FSC CONTINUING DISCLOSURE SERVICES, A DIVISION OF HILLTOP SECURITIES INC. In connection with the sale and delivery of certain bonds, notes, certificates, or other municipal obligations (the "Bonds"), the Issuer has made certain undertakings to disclose to the investing public, on a periodic and continuing basis, certain information, as more fully set forth in such undertakings and as contemplated by the provisions of Securities and Exchange Commission Rule 15c2-12, as amended (the "Rule"). The Issuer has agreed to engage FSC Continuing Disclosure Services, a Division of Hilltop Securities Inc. ("Continuing Disclosure Services"), to assist it with these continuing disclosure obligations, for the consideration and on the terms and conditions set forth herein, including the preparation and submission of annual reports (the "Annual Reports") and the reporting of certain specified events (the "Events"}, which are set forth in the Issuer's undertakings, the Rule and in Subsection 2c. below. This agreement (the "Agreement") between the Issuer and the Continuing Disclosure Services shall become effective as of the date of its acceptance as provided for below. The parties agree as follows: 1. This Agreement shall apply to all issues of Bonds delivered subsequent to the effective date of the continuing disclosure requirements as specified in the Rule, to the extent that any particular issue does not qualify for exceptions to the continuing disclosure requirements of the Rule. 2. Continuing Disclosure Services agrees to perform the following in connection with providing services relating to the Issuer's continuing disclosure obligations: a. Assist the Issuer in compiling data determined or selected by the Issuer to be disclosed; b. Assist the Issuer in identifying other information to be considered by Issuer for continuing disclosure reporting purposes; Page 21 3 EXHIBIT 4 c. Assist the Issuer in preparing the presentation of such information, to include Annual Reports containing financial infonnation and operating data of the type provided in the final official statement of applicable issues, and notices concerning the occurrence of the specified Events and other items listed below: 1) Principal and interest payment delinquencies 2) Non-payment related defaults 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 perfonn 6) Adverse tax opinions or events affecting the tax-exempt status of the security 7) Modifications to rights of security holders 8) Bond calls 9) Defeasances 10) Release, substitution, or sale of property securing repayment of the securities 11) Rating changes 12) The issuance by the IRS of proposed or final detenninations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices or determinations with respect to the tax status of the securities of the Issuer 13) Tender offers 14) Bankruptcy, insolvency, receivership or similar proceeding 15) Mergers, consolidations, a6quisitions, the sale of all or substantially all of the assets of the obligated person or their tennination 16) Appointment of a successor or additional trustee or the change of the name of a trustee 17) Noncompliance with the Rule d. Assist the Issuer in distributing or filing, in the Issuer's name, the above mentioned Annual Reports, notices and audited annual financial statements to the Municipal Securities Rulemaking Board's ("MSRB") Electronic Municipal Market Access ("EMMA"), appropriate State Information Depository ("SID"), rating agencies, and other entities, as required by the Issuer's continuing disclosure obligations. e. Provide to the Issuer confirmation of distribution or dissemination of reports and notices. Issuer acknowledges and agrees to the following: a. Continuing Disclosure Services will be compensated for the performance of services with respect to assisting the Issuer with preparation and submission of Page 22 EXHIBIT 4 continuing disclosure reports in accordance with the schedule as set forth below: $3,00 per year, per debt type, for assistance in preparation and distribution of each annual report and assistance in distribution of audited annual financial statements, and Material Event Notice Filings; b. Issuer will provide to Continuing Disclosure Services, and Continuing Disclosure Services shall be entitled to rely upon, all information regarding the issuance of the Bonds, including the final official statement and the Issuer's commitment or undertaking regarding continuing disclosure as contained in the resolution authorizing issuance of the Bonds or separate contract or agreement; annual financial information and operating data of the type provided in the final official statement; information concerning the occurrence of an Event or noncompliance with the Rule; and any other information necessary to prepare continuing disclosure reports. c. Issuer will provide to Continuing Disclosure Services, and Continuing Disclosure Services shall be entitled to rely upon, annual written confirmation of all outstanding Bond issues for which the issuer has a continuing disclosure obligation. d. Issuer will provide to Continuing Disclosure Services all infornlation required for preparation of each Annual Report, including financial inforination and operating data of the type provided in the final official statement and other inforination deemed necessary by Issuer, no later than 45 days prior to the date on which each Annual Report is due. e. Issuer will provide full and complete copies of the audited annual financial statement no later than ten ( 10) days prior to the date on which it is due. f. Issuer will notify Continuing Disclosure Services immediately upon the occurrence or immediately upon the Issuer's knowledge of the occurrence of each Event or noncompliance with the Rule, and the Issuer will immediately provide all information necessary for preparation of the notice of occurrence of each such Event or noncompliance with the Rule. g. Issuer shall have the sole responsibility for determining the disclosure to be made in all cases. The Issuer shall review and provide approval of the content and form of all continuing disclosure reports and notices, with the exception of the following, which will be filed automatically on the Issuer's behalf; unless the Issuer has notified Continuing Disclosure Services otherwise in writing: bond calls, defeasances, and rating changes. In the event of a disagreement between the Issuer and Continuing Disclosure Services regarding the disclosure to be made, either the Issuer or Continuing Disclosure Services may, but neither is obligated to, terminate this Agreement by written notice to the other party. h. A separate Annual Report will be prepared and distributed for each type of Page 23 EXHIBIT 4 security pledge in effect for outstanding financing issues or Bonds of the Issuer. i. Issuer will inform Continuing Disclosure Services of the retirement of any Bonds included under the scope of this Agreement within 30 days of such retirement. 4. I.n the event that Continuing Disclosure Services and the Issuer detennine that advice of counsel is appropriate with respect to any question concerning disclosure, then (i) the Issuer may consult with its counsel, or (ii) the Issuer may authorize Continuing Disclosure Services to seek legal advice from independent counsel regarding the disclosure. The Issuer agrees that it shall be responsible for the fees and expenses of its own counsel. The Issuer agrees to reimburse Continuing Disclosure Services the fees and expenses of independent counsel, if paid by Continuing Disclosure Services, for advice rendered pursuant to authorization by the Issuer. 5. The Issuer agrees to hold harmless and to indemnify Continuing Disclosure Services and its employees, affiliates, officers, directors, and agents from and against any and all claims, damages, losses, liabilities, reasonable costs and expenses whatsoever, including attorneys' fees and expenses ("Losses and Expenses") that Continuing Disclosure Services may incur by reason of or in connection with the distribution of information in the disclosure reports in accordance with this Agreement, except to the extent such Losses and Expenses result directly from Continuing Disclosure Services' willful misconduct or gross negligence in the distribution of such information. In the event that such Losses and Expenses are attributable to the concurrent negligence or other fault of both the Issuer and Continuing Disclosure Services, each party shall bear proportionate responsibility for the degree of negligence or other fault attributable to each. Notwithstanding the foregoing, Continuing Disclosure Services, shall not be obligated to contribute any amount hereunder that exceeds the amount of fees previously received by Continuing Disclosure Services pursuant to this Agreement. 6. The fees and expenses due to Continuing Disclosure Services in providing Continuing Disclosure Services shall be calculated in accordance with Section 3a of this Agreement. The fees will be invoiced each year during the term of the Agreement, unless terminated earlier, and fees will be payable within 30 days of receipt of invoice, except that the fees for the first years' service will be invoiced and be payable upon acceptance of this Agreement. In addition, the Issuer agrees to reimburse Continuing Disclosure Services for the following expenses: (i) legal fees and expenses of counsel incurred by Continuing Disclosure Services pursuant to 'the terms of Section 4 above, and (ii) other out-of- pocket expenses reasonably incurred by Continuing Disclosure Services :in performing its obligations hereunder. The Issuer shall remit payment for expenses to Continuing Disclosure Services within 30 days of receipt of invoice. 7. Bonds Issued Subsequent to Agreement: The provisions of this Agreement will Page 24 EXHIBIT 4 include additional municipal bonds and financings (including financing lease obligations) issued during the stated term of this Agreement, if such bonds are subject to the continuing disclosure requirements. In this connection, the Issuer agrees that the Issuer will notify Continuing Disclosure Services of any municipal bonds and financing (including financing lease obligations) issued by the Issuer during any fiscal year of the Issuer during the tern] of this Agreement, and will provide Continuing Disclosure Services with such information as shall be necessary in order for Continuing Disclosure Services to perforn the services contracted for hereunder. S. Effective Dates of Agreement: This Agreement shall become effective as of the date of acceptance by the Issuer as set out below and remain in effect thereafter for a period of five (5) years from the date of acceptance. This agreement may be tenminated with or without cause by the Issuer or Continuing Disclosure Services upon thirty (30) days' written notice to the other party. In the event of such tennination, it is understood and agreed that only the amounts due to Continuing Disclosure Services for services provided and expenses incurred to and including the date of termination will be due and payable. No penalty will be assessed for termination of this Agreement. In the event this Agreement is tenminated prior to its stated term, all records provided to Continuing Disclosure Services by the Issuer shall be returned to the Issuer as soon as practicable. In addition, the parties hereto agree that upon termination of this Agreement Continuing Disclosure Services shall have no continuing obligation to the Issuer regarding any service contemplated herein. Notwithstanding the foregoing, all indemnification, hold harmless and/or contribution obligations, pursuant to Section 5 of this Agreement, shall survive any termination, regardless of whether the tennination occurs as a result of the expiration of the term hereof or the Agreement is tenminated sooner by either the Issuer or Continuing Disclosure Services under this Section 8, pursuant to Subsection 3.g., or otherwise. Provision of Notices Provision of information, delivery of certification and notices of Events and noncompliance with the Rule, unless directed otherwise in writing, shall be sent to.- City o: City of Denton, Texas 215 East McKinney Denton, TX 76201 Charles Springer, Chief Financial Officer Phone. (940) 349-8224 Fax: (940) 349-7206 Email: charles.s rim er cit ofdenton.com FSC Continuing Disclosure Services, a Division of Hilltop Securities Inc. 1201 EIm Street, Suite 3500 Dallas, Texas 75270 Attention: Tanya Calvit Director for Continuing Disclosure Page 25 EXHIBIT 4 Phone: (214) 953-4037 Fax: (214) 953-4050 Ernail: tanya.calvitCcc%hilltopsecurities.com Acceptance of Agreement 9. This Agreement is submitted in duplicate originals. When accepted by the Issuer, it will constitute the entire Agreement between the Issuer and Continuing Disclosure Services for the purposes and the consideration specified above. Acceptance will be indicated on all copies and returned to Continuin., Disclosure Services. An executed ori,Yinal will be returned for our files. Respectfully submitted, FSC Continuing Disclosure Services, a Division of Hilltop Securities Inc. 11 By: Hill A. Feinberg, Chairman an By: y 4� 61a& �- Tanya divit, Director ACCEPTANCE CLAUSE The above and foregoing is hereby in all things accepted and approved by the City of Denton, Texas on this the day of .2016. Howard Martin Title: City Manager Page 26 EXHIBIT 4 Exhibit C AGREEMENT FOR ARBITRAGE REBATE COMPLIANCE SERVICES BETWEEN CITY OF DENTON, TEXAS (Hereinafter Referred to as the "Issuer") AND FIRST SOUTHWEST ASSET MANAGEMENT, LLC (Hereinafter Referred to as "First Southwest") It is understood and agreed that the Issuer, in connection with the sale and delivery of certain bonds, notes, certificates, or other tax-exempt obligations (the "Obligations'), will have the need to determine to what extent, if any, it will be required to rebate certain investment earnings (the amount of such rebate being referred to herein as the "Arbitrage Amount') from the proceeds of the Obligations to the United States of America pursuant to the provisions of Section 148(f)(2) of the Internal Revenue Code of 1986, as amended (the "Cade'). For purposes of this Agreement, the term "Arbitrage Amount" includes payments made under the election to pay penalty in lieu of rebate for a qualified construction issue under Section 148(f)(4) of the Code. We are pleased to submit the following proposal for consideration; and if the proposal is accepted by the Issuer, it shall become the agreement (the "Aareentent") between the Issuer and First Southwest effective at the date of its acceptance as provided for herein below. This Agreement shall apply to all issues of tax-exempt Obligations delivered subsequent to the effective date of the rebate requirements under the Code, except for (i) issues which qualify for exceptions to the rebate requirements in accordance with Section 148 of the Code and related Treasury regulations, or (ii) issues excluded by the Issuer in writing in accordance with the further provisions hereof, (iii) new issues effected in a fashion whereby First Southwest is unaware of the existence of such issue, (iv) issues in which, for reasons outside the control of First Southwest, First Southwest is unable to procure the necessary information required to perform such services. Covenants of First Southwest 2. We agree to provide our professional services in determining the Arbitrage Amount with regard to the Obligations. The Issuer will assume and pay the fee of First Southwest as such fee is set out in Appendix A attached hereto. First Southwest shall not be responsible for any extraordinary expenses incurred on behalf of Issuer in connection with providing such professional services, including any costs incident to litigation, mandamus action, test case or other similar legal actions. 3. We agree to perforin the following duties in connection with providing arbitrage rebate compliance services: a. To cooperate fully with the Issuer in reviewing the schedule of investments made by the Issuer with (i) proceeds from the Obligations, and (ii) proceeds of other funds of the Issuer which, under Treasury Regulations Section 1.148, or any successor regulations Page 27 EXHIBIT 4 thereto, are subject to the rebate requirements of the Code; b. To perform, or cause to be performed, consistent with the Code and the regulations promulgated thereunder, calculations to detennine the Arbitrage Amount under Section 148(1)(2) of the Code; and c. To provide a report to the Issuer specifying the Arbitrage Amount based upon the investment schedule, the calculations of bond yield and investment yield, and other information deemed relevant by First Southwest. In undertaking to provide the services set forth in paragraph 2 and this paragraph 3, First Southwest does not assume any responsibility for any record retention requirements which the Issuer may have under the Code or other applicable laws, it being understood that the Issuer shall remain responsible for compliance with any such record retention requirements. Covenants of the Issuer 4. In connection with the performance of the aforesaid duties, the Issuer agrees to the following: a. The fees due to First Southwest in providing arbitrage rebate compliance services shall be calculated in accordance with Appendix A attached hereto. The fees will be payable upon delivery of the report prepared by First Southwest for each issue of Obligations during the term of this Agreement. b. The Issuer will provide First Southwest all information regarding the issuance of the Obligations and the investment of the proceeds therefrom, and any other information necessary in connection with calculating the Arbitrage Amount. First Southwest will rely on the information supplied by the Issuer without inquiry, it being understood that First Southwest will not conduct an audit or take any other steps to verify the accuracy or authenticity of the information provided by the Issuer. c. The Issuer will notify First Southwest in writing of the retirement, prior to the scheduled maturity, of any Obligations included under the scope of this Agreement within 30 days of such retirement. This notification is required to provide sufficient time to comply with Treasury Regulations Section 1.148-3(g) which requires .final payment of any Arbitrage Amount within 60 days of the final retirement of the Obligations. In the event the Issuer fails to notify First Southwest in a timely manner as provided hereinabove, First Southwest shall have no further obligation or responsibility to provide any services under this Agreement with respect to such retired Obligations. 5. In providing the services set forth in this Agreement, it is agreed that First Southwest shall not incur any liability for any error of judgment made in good faith by a responsible officer or officers thereof and, except to the limited extent set forth in this paragraph, shall not incur any liability for any other errors or omissions, unless it shall be proved that such error or omission was a result of the gross negligence or willful misconduct of said officer or officers. In the event a payment is assessed by the Internal Revenue Service due to an error by First Southwest, the Issuer will be responsible for paying the correct Arbitrage Amount and First Southwest's liability shall not exceed the amount of any penalty or interest imposed on the Arbitrage Amount as a result of such error. Pace 28 EXHIBIT 4 Obligations Issued Subsequent to Initial Contract 6. The services contracted for under this Agreement will automatically extend to any additional Obligations (including financing lease obligations) issued during the ten -n of this Agreement, if such Obligations are subject to the rebate requirements under Section 1480(2) of the Code. In connection with the issuance of additional Obligations, the Issuer agrees to the following: a. The Issuer will notify or cause the notification, in writing, to First Southwest of any tax- exempt .financing (including .financing lease obligations) issued by the Issuer during any calendar year of this Agreement, and will provide First Southwest with such information regarding such Obligations as First Southwest may request in connection with its performance of the arbitrage rebate services contracted for hereunder. if such notice is not provided to First Southwest with regard to a particular issue, First Southwest shall have no obligation to provide any services hereunder with respect to such issue. b. At the option of the Issuer, any additional Obligations to be issued subsequent to the execution of this Agreement may be excluded from the services provided for herein. In order to exclude an issue, the Issuer must notify First Southwest in writing of their intent to exclude any specific Obligations from the scope of this Agreement, which exclusion shall be permanent for the full life of the Obligations; and after receipt of such notice, First Southwest shall have no obligation to provide any services under this Agreement with respect to such excluded Obligations. Election to Pay Penalty in Lieu of Rebate 7. The services contracted for under this Agreement will automatically extend to any additional financing obligations issued during the stated term of this Agreement, if an election was made (prior to delivery of the Obligations) to pay penalty in lieu of rebate for a qualified construction bond issue under Section 148(f)(2) of the Code. In connection with extending the scope of this Agreement to include computations of penalty, the Issuer agrees to the following: a. The Issuer will notify First Southwest of any financing obligations issued by the Issuer during any calendar year of this Agreement for which a penalty election was made. The Issuer will provide First Southwest with such information regarding the investment and expenditure of such obligations as First Southwest deems necessary in connection with its performance of the penalty calculation services contracted for hereunder. b. At the option of the Issuer, any additional financing obligations issued subsequent to the execution of this Agreement may be excluded from the services provided for herein. The Issuer must notify First Southwest in writing of its intent to exclude any specific financing obligations from the scope of this Agreement. Page 29 EXHIBIT 4 Effective Date of Agreement 8. This Agreement shall become effective at the date of acceptance by the Issuer as set out herein below and remain in effect thereafter for a period of five (5) years from the date of acceptance, provided, however, that this Agreement may be terminated with or without cause by the Issuer or First Southwest upon thirty (30) days prior written notice to the other party. In the event of such tennination, it is understood and agreed that only the amounts due to First Southwest for services provided and extraordinary expenses incurred to and including the date of termination will be due and payable. No penalty will be assessed for termination of this Agreement. In the event this Agreement is terminated prior to the completion of its stated terra, all records provided to First Southwest with respect to the investment of monies by the Issuer shall be returned to the Issuer as soon as practicable following written request by Issuer. In addition, the parties hereto agree that, upon termination of this Agreement, First Southwest shall have no continuing obligation to the Issuer regarding any arbitrage rebate related services contemplated herein, regardless of whether such services have previously been undertaken, completed or performed. Acceptance of Agreement 9, This Agreement is submitted in duplicate originals. When accepted by the Issuer in accordance with the teens hereof, it, together with Appendix A attached hereto, will constitute the entire Agreement between the Issuer and First Southwest for the purposes and the consideration herein specified. In order for this Agreement to become effective, it must be accepted by the Issuer within sixty (60) days of the date appearing below the signature of First Southwest's authorized representative hereon. After the expiration of such 60 -day period, acceptance by the Issuer shall only become effective upon delivery of written acknowledgement and reaffinnation by First Southwest that the terns and conditions set forth in tins Agreement remain acceptable to First Southwest. Governing Law 10. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to its principles of conflicts of laws. Page 30 EXHIBIT 4 Aecentance will be indicated on both conies and the return of one executed coov to First Southwest. Respectfully submitted, FIRST SOUTHWEST ASSET MANAGEMENT, LLC By: Hill A. Feinberg, Chairman an4kO Date: ISSUER'S ACCEPTANCE CLAUSE The above and foregoing is hereby in all things accepted and approved by the City of Denton, Texas on this the day of . 2016. Howard Martin Title: City Manager Date: Page 3) 1 EXHIBIT 4 APPENDIX A- FEES The Obligations to be covered initially under this contract include all issues of tax-exempt obligations delivered subsequent to the effective dates of the rebate requirements, under the Code, except as set forth in Section I of the Agreement. The fee for any Obligations under this contract shall only be payable if a computation is required under Section 148(f) (2) of the Code. In the event that any of the Obligations fall within an exclusion to the computation requirement as defined by Section 148 of the Code or related regulations and no calculations were required by First Southwest to make that determination, no fee will be charged for such issue. For example, certain obligations are excluded froEn the rebate computation requirement if the proceeds are spent within specific time periods. In the event a particular issue of Obligations fulfills the exclusion requirements of the Code or related regulations, the specified fee will be waived by First Southwest if no calculations were required to make the determination. First Southwest's fee for arbitrage rebate services is based upon a fixed annual fee per issue. The annual fee is charged based upon the number of years that proceeds exist subject to rebate from the delivery date of the issue to the computation date. First Southwest's fees are payable upon delivery of the report. The first report will be made following one year from the date of delivery of the Obligations and on each computation date thereafter during the ten- of the Agreement. The fees for computations of the Arbitrage Amount which encompass more, or less, than one Computation Year shall be prorated to reflect the longer, or shorter, period of work performed during that period. The fee for each of the Obligations included in this contract shall be based on the table below. Additionally, due to significant time saving efficiencies realized when investment information is submitted in an electronic format, First Southwest passes the savings to its clients by offering a 10% reduction in its fees if Information is provided in a spreadsheet or electronic text file format. Page 32 EXHIBIT 4 Description Annual Fee ANNUAL FEE $1,400 COMPREHENSIVE ARBITRAGE COMPLIANCE SER VICES INCLUDE: • Commingled Funds Analysis & Calculations • Spending Exception Analysis & Calculations • Yield Restriction Analysis & Calculations (for yield restricted Project Funds, Reserve Funds, Escrow Funds, etc.) • Parity Reserve Fund Allocations • Transferred Proceeds Calculations • Universal Cap Calculations • Debt Service Fund Calculations (including earnings test when required) INCLUDED • Preparation of all Required IRS Paperwork for Making a Rebate Payment / Yield Reduction Payment • Retention of Records Provided for Arbitrage Computations • IRS Audit Assistance • Delivery of Rebate Calculations Each Year That Meets the Timing Requirements of the Audit Schedule • On -Site Meetings, as Appropriate, to Discuss Calculation Results / Subsequent Planning Items OTHER SERVICES AVAILABLE: IRS Refund Request — Update calculation, prepare refund request package, and assist issuer as necessary in responding to subsequent IRS Information Requests $ASO EXPLANATION OF TERMS: a. Computation Year: A "Computation Year" represents a one year period from the delivery date of the issue to the date that is one calendar year after the delivery date, and each subsequent one-year period thereafter. Therefore, if a calculation is required that covers more than one "computation year," the annual fee is multiplied by the number of computation years contained in the calculation being performed. If a calculation includes a portion of a computation year, i.e., if the calculation includes 1 '/z computation years, then the base fee will be multiplied by 1.5. b. Electronic Data Submission: The data should be provided electronically in MS Excel or ASCII text file (comma delimited text preferred) with the date, description, dollar amount, and an activity code (if not in debit and credit format) on the same line in the file. c. Variable/Floating Rate Bond Issues: Special services are also required to perfoml the arbitrage rebate calculations for variable rate bonds. A bond is a variable rate bond if the interest rate paid on the bond is dependent upon an index which is subject to changes subsequent to the issuance of the bonds. The computational requirements of a variable rate issue are more complex than those of a fixed rate issue and, accordingly, require significantly more time to calculate. The additional complexity is primarily related to the computation of the bond yield, which must be calculated on a `bond year" basis. Additionally, the regulations provide certain flexibility in computing the bond yield and determining the arbitrage amount over the first IRS reporting period; consequently, increased calculations are required to determine which bond yield calculation produces the lowest arbitrage amount. d. Commingled Fund Allocations: By definition, a commingled fund is one that contains Page 33 EXHIBIT 4 either proceeds of more than one bond issue or proceeds of a bond issue and non -bond proceeds (i.e., revenues) of $25,000 or more. The arbitrage regulations, while permitting the commingling of funds, require that the proceeds of the bond issue(s) be "carved out" for purposes of detennining the arbitrage amount. Additionally, interest earnings must be allocated to the portion of the commingled fund that represents proceeds of the issue(s) in question. Permitted "safe -harbor" methods (that is, methods that are outlined in the arbitrage regulations and, accordingly, cannot be questioned by the IRS under audit), exist for allocating expenditures and interest earnings to issues in a commingled fund. First Southwest uses one of the applicable safe -harbor methods when doing these calculations. e. Debt Service Reserve Funds: The authorizing documents for many revenue bond issues require that a separate fund be established (the "Reserve Fund") into which either bond proceeds or revenues are deposited in an amount equal to some designated level, such as average annual debt service on all parity bonds. This Reserve Fund is established for the benefit of the bondholders as additional security for payment on the debt. In most cases, the balance in the Reserve Fund remains stable throughout the life of the bond issue. Reserve Funds, whether funded with bond proceeds or revenues, must be included in all rebate calculations. f. Debt Service Fund Calculations: Issuers are required under the regulations to analyze the invested balances in their debt service funds annually to determine whether the fund depletes as required during the year and is, therefore, "bona fide" (i.e., potentially exempt from rebate in that year). It is not uncommon for surplus balances to develop in the debt service fund that services an issuer's tax supported debt, particularly due to timing differences of when the funds were due to be collected versus when the funds were actually collected. First Southwest performs this fom 1 al analysis of the debt service fund and, should it be determined that a surplus balance exists in the fund during a given year, allocates the surplus balance among the various issues serviced by the fund in a manner that is acceptable under IRS review. g. Earnings Test for Debt Service Funds: Certain types of bond issues require an additional level of analysis for the debt service fund, even if the fund depletes as required under the and is "bona fide." For short-term, fixed rate issues, private activity issues, and variable rate issues, the regulations require that an "earnings test" be performed on a bona fide debt service fund to detennine if the interest earnings reached $100,000 during the year. In cases where the earnings reach or exceed the S100,000 threshold, the entire fund (not just the surplus or residual poItion) is subject to rebate. h. Transferred Proceeds Calculations: When a bond issue is refinanced (refunded) by another issue, special services relating to "transferred proceeds" calculations may need to be performed. Under the regulations, when proceeds of a refunding issue are used to retire principal of a prior issue, a pro -rata portion of the unspent proceeds of the prior issue becomes subject to rebate and/or yield restriction as transferred proceeds of the refunding issue. The refunding issue essentially "adopts" the unspent proceeds of the prior issue for purposes of the arbitrage calculations. These calculations are required under the regulations to ensure that issuers continue to exercise due diligence to complete the project(s) for which the prior bonds were issued. Page 34 EXHIBIT 4 Universal Cap: Current regulations provide an overall limitation on the amount of gross proceeds allocable to an issue. Simply stated, the value of investments allocated to an issue cannot exceed the value of all outstanding bonds of the issue. For example, this situation can occur if an issuer encounters significant construction delays or enters into litigation with a contractor. It may take months or even years to resolve the problems and begin or resume spending the bond proceeds; however, during this time the debt service payments are still being paid, including any scheduled principal payments. Thus, it's possible for the value of the investments purchased with bond proceeds to exceed the value of the bonds outstanding. In such cases, a "de -allocation" of proceeds may be required to comply with the limitation rules outlined in the regulations. j. Yield Restriction Analysis/Yield Reduction Computations: The IRS strongly encourages issuers to spend the proceeds of each bond issue as quickly as possible to achieve the governmental purpose for which the bonds were issued. Certain types of proceeds can qualify for a "temporary period," during which time the proceeds may be invested at a yield higher than the yield on the bonds without jeopardizing the tax-exempt status of the issue. The most common temporary period is the thrce-year temporary period for capital project proceeds. After the end of the temporary period, the proceeds must be yield restricted or the issuer must remit the appropriate yield reduction payment when due. First Southwest performs a comprehensive yield restriction analysis when appropriate for all issues having proceeds remaining at the end of the applicable temporary period and also calculates the amount of the yield reduction payment due to the IRS. Page 35 EXHIBIT 4 Exhibit D MUNICIPAL ADVISOR DISCLOSURE STATEMENT This disclosure statement ("Conflict Disclosures") is provided by FirstSouthwest, a Division of Hilltop Securities Inc. ("the Firm") to you (the "Client") in connection with our current municipal advisory agreement, ("the Agreement"). These Conflict Disclosures provide information regarding conflicts of interest and legal or disciplinary events of the Firm that are required to be disclosed to the Client pursuant to MSRB Rule G -42(b) and (c)(ii). PART A — Disclosures of Conflicts of Interest MSRB Rule G42 requires that municipal advisors provide to their clients disclosures relating to any actual or potential material conflicts of interest, including certain categories of potential conflicts of interest identified in Rule G42, if applicable. Material Conflicts of Interest — The Firm makes the disclosures set forth below with respect to material conflicts of interest in connection with the Scope of Services under the Agreement with the Firm, together with explanations of how the Firm addresses or intends to manage or mitigate each conflict. General Mitigations — As general mitigations of the Firm's conflicts, with respect to all of the conflicts disclosed below, the Firm mitigates such conflicts through its adherence to its fiduciary duty to Client, which includes a duty of loyalty to Client in performing all municipal advisory activities for Client. This duty of loyalty obligates the Firm to deal honestly and with the utmost good faith with Client and to act in Client's best interests without regard to the Firm's financial or other interests. In addition, because the Firm is a broker-dealer with significant capital due to the nature of its overall business, the success and profitability of the Firm is not dependent on maximizing short-term revenue generated from individualized recommendations to its clients but instead is dependent on long-term profitably built on a foundation of integrity, quality of service and strict adherence to its fiduciary duty. Furthermore, the Firm's municipal advisory supervisory structure, leveraging our long-standing and comprehensive broker-dealer supervisory processes and practices, provides strong safeguards against individual representatives of the Firm potentially departing from their regulatory duties due to personal interests. The disclosures below describe, as applicable, any additional mitigations that may be relevant with respect to any specific conflict disclosed below. I. Affiliate Conflict. The Firm, directly and through affiliated companies, provides or may provide services/advice/products to or on behalf of clients that are related to the Firm's advisory activities within the Scope of Services outlined in the Agreement. First Southwest Asset Management (FSAM), a SEC -registered affiliate of the Firm, provides post issuance services including arbitrage rebate and treasury management. The Firm's arbitrage team verifies rebate and yield restrictions on the investments of bond proceeds on behalf of clients in order to meet IRS restrictions. The treasury management division performs portfolio management/advisor services on behalf of public sector clients. The Firm, through affiliate First Southwest Advisory, provides a multi-employer trust tailor-made for public entities which allows them to prefund Other Post - Employment Benefit liabilities. The Firm has a structured products desk that provides advice to help clients mitigate risk though investment management, debt management and commodity price risk management products. These products consist of but are not limited to swaps (interest rate, currency, commodity), options, repos, escrow structuring and other securities. Continuing Page 36 EXHIBIT 4 Disclosure services provided by the Firm work with issuers to assist them in meeting disclosure requirements set forth in SEC rule 15c2-12. Services include but are not limited to ongoing maintenance of issuer compliance, automatic tracking of issuer's annual filings and public notification of material events. The Firm administers two government investment pools for Texas governments; the Short -Term Asset Reserve Fund (TexSTAR) and the Local Government Investment Cooperative (LOGIC). These programs offer Texas government entities investment options for their cash management programs based on the entities specific needs. The Firm and the aforementioned affiliate's business with a client could create an incentive for the Firm to recommend to a client a course of action designed to increase the level of a client's business activities with the affiliates or to recommend against a course of action that would reduce or eliminate a client's business activities with the affiliates. Furthermore, this potential conflict is mitigated by the fact that the Firm and affiliates are subject to their own comprehensive regulatory regime as a member of multiple self-regulatory organizations in which compliance is verified by not only internal tests but annual external examinations. II. Other Municipal Advisor or Underwriting Relationships. The Firm serves a wide variety of other clients that may from time to time have interests that could have a direct or indirect impact on the interests of Client. For example, the Firm serves as municipal advisor to other municipal advisory clients and, in such cases, owes a regulatory duty to such other clients just as it does to Client. These other clients may, from time to time and depending on the specific circumstances, have competing interests, such as accessing the new issue market with the most advantageous timing and with limited competition at the time of the offering. In acting in the interests of its various clients, the Firm could potentially face a conflict of interest arising from these competing client interests. In other cases, as a broker-dealer that engages in underwritings of new issuances of municipal securities by other municipal entities, the interests of the Firm to achieve a successful and profitable underwriting for its municipal entity underwriting clients could potentially constitute a conflict of interest if, as in the example above, the municipal entities that the Finn serves as underwriter or municipal advisor have competing interests in seeking to access the new issue market with the most advantageous timing and with limited competition at the time of the offering. None of these other engagements or relationships would impair the Firm's ability to fulfill its regulatory duties to Client. III. Secondary Market Transactions in CIient's Securities. The Firm, in connection with its sales and trading activities, may take a principal position in securities, including securities of Client, and therefore the Firm could have interests in conflict with those of Client with respect to the value of Client's securities while held in inventory and the levels of mark-up or mark-down that may be available in connection with purchases and sales thereof. In particular, the Firm or its affiliates may submit orders for and acquire Client's securities issued in an Issue under the Agreement from members of the underwriting syndicate, either for its own account or for the accounts of its customers. This activity may result in a conflict of interest with Client in that it could create the incentive for the Firm to make recommendations to Client that could result in more advantageous pricing of Client's bond in the marketplace. Any such conflict is mitigated by means of such activities being engaged in on customary terms through units of the Firm that operate independently from the Firm's municipal advisory business, thereby reducing the likelihood that such investment activities would have an impact on the services provided by the Firm to Client under this Agreement. IV. Broker -Dealer and Investment Advisory Business. The Firm is dually registered as a broker-dealer and an investment advisor that engages in a broad range of securities -related activities to service its clients, in addition to serving as a municipal advisor or underwriter. Such Page 37 EXHIBIT 4 securities -related activities, which may include but are not limited to the buying and selling of new issue and outstanding securities and investment advice in connection with such securities, including securities of Client, may be undertaken on behalf of, or as counterparty to, Client, personnel of Client, and current or potential investors in the securities of Client. These other clients may, from time to time and depending on the specific circumstances, have interests in conflict with those of Client, such as when their buying or selling of Client's securities may have an adverse effect on the market for Client's securities, and the interests of such other clients could create the incentive for the Firm to make recommendations to Client that could result in more advantageous pricing for the other clients. Furthermore, any potential conflict arising from the firm effecting or otherwise assisting such other clients in connection with such transactions is mitigated by means of such activities being engaged in on customary terms through units of the Firm that operate independently from the Firm's municipal advisory business, thereby reducing the likelihood that the interests of such other clients would have an impact on the services provided by the Firm to Client. V. Compensation -Based Conflicts. Fees that are based on the size of the issue are contingent upon the delivery of the Issue. While this form of compensation is customary in the municipal securities market, this may present a conflict because it could create an incentive for the Firm to recommend unnecessary financings or financings that are disadvantageous to Client, or to advise Client to increase the size of the issue. This conflict of interest is mitigated by the general mitigations described above. Fees based on a fixed amount are usually based upon an analysis by Client and the Firm of, among other things, the expected duration and complexity of the transaction and the Scope of Services to be performed by the Firm. This form of compensation presents a potential conflict of interest because, if the transaction requires more work than originally contemplated, the Firm may suffer a loss. Thus, the Firm may recommend less time-consuming alternatives, or fail to do a thorough analysis of alternatives. This conflict of interest is mitigated by the general mitigations described above. Hourly fees are calculated with, the aggregate amount equaling the number of hours worked by Firm personnel times an agreed-upon hourly billing rate. This form of compensation presents a potential conflict of interest if Client and the Firm do not agree on a reasonable maximum amount, at the outset of the engagement, because the Firm does not have a financial incentive to recommend alternatives that would result in fewer hours worked. This conflict of interest is mitigated by the general mitigations described above. PART B — Disclosures of Information Regarding Legal Events and Disciplinary History MSRB Rule G-42 requires that municipal advisors provide to their clients certain disclosures of legal or disciplinary events material to its client's evaluation of the municipal advisor or the integrity of the municipal advisor's management or advisory personnel. Accordingly, the Firm sets out below required disclosures and related information in connection with such disclosures. 1. Material Legal or Disciplinary Event. The Firm discloses the following legal or disciplinary events that may be material to Client's evaluation of the Firm or the integrity of the Firm's management or advisory personnel: • For related disciplinary actions please refer to the Firm's BrokerCheck webpage. Page 38 EXHIBIT 4 • The Firm self-reported violations of SEC Rule 15c2-12: Continuing Disclosure. The Firm settled with the SEC on February 2, 2016. The firm agreed to retain independent consultant and adopt the consultant's finding. Firm paid a fine of $360,000. • The Firm settled with the SEC in matters related to violations of MSRB Rules G -23(c), G-17 and SEC rule 1513(c) (1). The Firm disgorged fees of $120,000 received as financial advisor on the deal, paid prejudgment interest of $22,400.00 and a penalty of $50,000.00. II. How to Access Form MA and Form MA -1 Filings. The Firm's most recent Form MA and each most recent Form MA -I filed with the SEC are available on the SEC's EDGAR system at Forms MA and MA -I. The SEC permits certain items of information required on Form MA or MA -I to be provided by reference to such required information already filed by the Firms in its capacity as a broker-dealer on Form BD or Form U4 or as an investment adviser on Form ADV, as applicable. Information provided by the Firm on Form BD or Form U4 is publicly accessible through reports generated by BrokerCheck at http://brokercheck.finra.org//, and the Firm's most recent Form ADV is publicly accessible at the Investment Adviser Public Disclosure website at http://www.adviserinfo.see.2ov/. For purposes of accessing such BrokerCheck reports or Form ADV, click previous hyperlinks. PART C — Future Supplemental Disclosures As required by MSRB Rule G-42, this Municipal Advisor Disclosure Statement may be supplemented or amended, from time to time as needed, to reflect changed circumstances resulting in new conflicts of interest or changes in the conflicts of interest described above, or to provide updated information with regard to any legal or disciplinary events of the Firm. The Firm will provide Client with any such supplement or amendment as it becomes available throughout the term of the Agreement. Page 39 EXHIBIT 4 Exhibit E Business Contract Information Pa --e 40 EXHIBIT 4 CERTIFICATE OF LIABILITY INSURANCE DATE(MWDDIYYYY) 11/02/2016 THIS CERTIFICATE 1S ISSUED AS A !MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Roach Howard Smith & Barton NAME: Helen Stuart 8750 N Central Expressway PHONE P Y (972) 744-2704 FAx Suite 500 E-MAIL A1C No:(972) 744-2804 Dallas TX 75231 ADDRESS: hstuart@rhsb.com INSURED Hilltop Securities Holdings LLC Hilltop Securities Inc. First Southwest Asset Management, LLC 1201 Elm Street, Suite 3500 Dallas TX 75270 INSURER{S AFFORDING COVERAGE INSURERA: Federal Ins Co INSURER B: Great Northern Ins Co INSURERC: Fireman's Fund Insurance INSURER D: Pacific Indemnity Co INSURER E: NAIC N 20281 20303 21873 20346 COVERAGES THIS INDICATED. CERTIFICATE EXCLUSIONS INSR LTR A CERTIFICATE IS TO CERTIFY THAT THE POLICIES NOTWITHSTANDING ANY REQUIREMENT, MAY BE ISSUED OR MAY AND CONDITIONS OF SUCH TYPE OF INSURANCE X COMMERCIAL GENERAL LIABILITY OF PERTAIN, POLICIES. INSO INSURANCE WVD NUMBER: Cert ID 33507 LISTED BELOW HAVE BEEN TERM OR CONDITION OF ANY THE INSURANCE AFFORDED BY LIMITS SHOWN MAY HAVE BEEN POLICY NUMBER ISSUED TO CONTRACT THE POLICIES REDUCED BY _ EFF (MMIDDfYYYYI THE INSURED OR OTHER DESCRIBED PAID CLAIMS. POLICY EXP 4MWDorYYYYJLIMITS REVISION NUMBER: NAMED ABOVE FOR THE POLICY PERIOD DOCUMENT WITH RESPECT TO WHICH THIS HEREIN IS SUBJECT TO ALL THE TERMS, CLAIMS -MADE — OCCUR 35921632 01/01/2016 O1/DI/2017 EACH OCCURRENCE S 11000,000 PREMISFS EaNrence $ 1,000,000 MED EXP (Any one person) $ 10,000 PERSONAL& ADV INJURY $ 11000,000 GEWL AGGREGATE LIMIT APPLIESPER POLICY 1:1JE° LOC GENERAL AGGREGATES 2,000,000 PRODUCTS -COMPIOPAGG $ 2,000,000 B AUTOMOBILE X X OTHER: LIABILITY ANY AUTO ALL OWNEDSCHEDULED AUTOS AUTOS HIRED AUTOS X NON -OWNED AUTOS 73560220 01/01/2016 01/01/2017 per loc aggregate $ 10,000,000 COMBINED SINGLE LIMIT Ea accident $ 1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) S PROPERTY DAMAGE Per accident $ S A X EXCE UMBRELLA X OCCUR EXCESS UAB CLAIMS -MADE 79867765 01/01/2016 01/01/2017 EACH OCCURRENCE $ 10,000,000 AGGREGATE $ 10,000,000 D DED RETENTIONS WORKERS COMPENSATION ANA EMPLOYERS'LIAMUTY YIN ANY PROPRIETOR/PARTNER(EXECUTIVE OFFICERIMEMBER EXCLUDED? (Mandatory In NH) If yes, desnbeUnder DESCRIPrIONOFOPERATIONShelow N f A 71719928 01/01/2016 01/01/2017 $ _ X STATUTE ORH E.L. EACH ACCIDENT $ 11000,000 E.L. DISEASE - EA EMPLOYE $ 1.000,000 E.LDISEASE-POLICY LIMIT $ 1,000,000 C Excess Umbrella SHX00058013152 01/01/2016 01/01/2017 Each Occurrence $ 10,000,000 Aggregate $ 10,000,000 DESCRIPTION OF OPERATIONS 1 LOCATIONS 1 VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) General and auto liability policies include a blanket automatic additional insured endorsement or provision that provides additional insured status to certificate holder only when there is a written contract between named insured and certificate holder that requires such status- General liability policy contains a special endorsement or provision with "primary additional insured" wording_ General and auto liability, and workers compensation policies include a blanket automatic waiver of subrogation endorsement or provision that provides this feature only when there is a written contract between named.insured and certificate holder that requires it. The General Liability, Auto, Umbrella and workers Compensation policies have been endorsed to provide 30 Days Notice of Cancellation. CERTIFICATE HOLDER CANCELLATION City of Denton 215 E. McKinney Denton TX 76201 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS - AUTHORIZED REPRESENTATIVE ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014I01) The ACORD name and logo are registered marks of ACORD Page 1 of 1 F.XNTRTT A ACORO CERTIFICATE OF LIABILITY INSURANCE DA E(MMIDDIYYYY) 11/02/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE FiOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Roach Howard Smith & Barton 8750 N Central Expressway, Suite 500 CONTACT Helen Stuart NAME: - PHONE (972) 744-2704 �AlC No: (972) 744-2804 Dallas TX 75231 E-MAIL - ADDRESS: hstuart@rhsb.com INSURER(S) AFFORDING COVERAGE NAIC i INSURER A: Westchester Surplus Lines 10172 T INSURED Hilltop Securities Holdings LLC INSURERB:XLS2ecialty Ins Co 37885 INSURER C: Hilltop Securities Inc. First Southwest Asset Management, LLC 1201 Elm Street, Suite 3500 INSURER D: -- INSURER E: Dallas TX 75270 INSURER F: a..�nrrrwnr�trumoErc:c.er� iu JsoUn KLV151UNNUPAULK: I rn� n� u �crcnrl inn, Int ruLIt Its Ur INSUKANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIFS I IMITS SH0WN MAV uAvr Pr:PM ncni,rcn OV DAin r1i --C INSR LTR TYPE OF INSURANCE 1N D WVD POLICY NUMBER MM1DDNYYY MMIDO/YYYY LIMITS COMMERCIAL GENERAL LIABILITY CLAIMS -MADE OCCUR E M�OCCURRENCE $ DENTED PREMISES Ea occurrence $ MED EXP (Any me person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- ❑ JECT LOC GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ g OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ Eaacddent BODILY INJURY (Per person) $ - ANY AUTO ALL OWNED SCHEDULED BODILY INJURY (Per accident) $ AUTOS AUTOS HIRED AUTOS NDN -OWNED AUTOS PROPERTY DAMAGE Per accident)$ $ UMBRELLA LIAB HCLAIMS-MADE OCCUR EACH OCCURRENCE $ EXCESS L IAS AGGREGATE $ DED I I RETENTION$ _ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y f N ANY PROPMETORIPARTNEWEXECUTIVE OFFICERIMEMBER EXCLUDED? N f A PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE S (Mandatory In NH) If yes, describe under E.L. DISEASE - POLICY LIMIT S DESCRIPTION OF OPERATIONS below A B Errors & Omissions Excess Errors & Omissions G23619295011 ELU14238915 12/20/2015 12/20/2015 04/01/2017Primaxy 04/01/2017 - Each $ 5,000,000 Claim & Aggregate Excess of primary $ 5,000,000 E&O - Aggre2ate DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be aftached If more space is required) RE: Financial Advisory �. �fN r IV 1--M I V- nvL-uF- rn CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Denton ACCORDANCE WITH THE POLICY PROVISIONS. 215 E. McKinney AUTHORIZED REPRESENTATIVE f' Denton TX 76201 + r } 1(�[.t e Ir ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD Page 1 of 1 Corporations Section 4 Carlos H. Cascos P.O.Box 13697 Secretary of State Austin, Texas 78713-3697 w i� Office of the Secretary of State Certificate of Fact The undersigned, as Secretary of State of Texas, does hereby certify that the document, Application for Certificate of Authority for Hilltop Securities Inc. (file number 9091806), a DELAWARE, USA, Foreign For -Profit Corporation, was filed in this office on March 24, 1992. It is further certified that the entity status in Texas is in existence. In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in Austin, Texas on July 15, 2016. Kai dot.rte.Secretary of - Carlos H, Cascos Cone visit us on the Internet at htip.,//www,sos.state.tx.us/ Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 for Relay Services Prepared by: SOS -WE- TID: 10264 Document: 680294670003 Corporations Section E�� 4 Carlos H. Cascos P.O.Box 13697 /, ��` Secrctary of State Austin, Texas 78711-3697 4;? Office of the Secretary of State Certificate of Tact The undersigned, as Secretary of State of Texas, does hereby certify that the document, Application For Certificate Of Authority for FIRST SOUTHWEST ASSET MANAGEMENT, LLC (file number 9021906), a DELAWARE, USA, Foreign Limited Liability Company {LLC), was filed in this office on January 24, 1992. It is further certified that the entity status in Texas is in existence. In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in Austin, Texas on July 15, 2016. Carlos H. Cascos Secretary of State /�>•y Come visit us on the internet at http://www.sos.slate.tx.us/ Phone: (5 12) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 for Relay Services Prepared by: SOS -WEB T1D: 10264 Document: 680294670005 SSB Certificate of Registration EXHIBIT 4 Page I of I Texas state Securities Board.. P.O. BOX 13167 AUSTIN, TEXAS 78711 CERTIFICATE OF REGISTRATION THE SECURITIES COMMISSIONER HEREBY CERTIFIES THAT THE COMPANY AND/OR INDIVIDUAL NAMED BELOW IS REGISTERED AS A SECURITIES DEALER HILLTOP SECURITIES, INC. 1201 ELM STREET, SUITE 3500 DALLAS, TX 75270-2180 Branch #: 43 1201 ELM STREET, SUITE 3500 DALLAS, TX 75270 Branch Supw ROBERT LINCOLN NASH File #: 25469 Expiration date: 12/31/2016 .JOHN MORGAN SECURITIES COMMISSIONER Texas investor complaint hotline 1-888-663-0009 Certificate generated on: 03/13/2016 WARNING: IT IS A CRIMINAL OFFENSE TO FALSIFY INFORMATION CONTAINED IN A CERTIFICATE OF REGISTRATION ISSUED BY THE STATE SECURITIES BOARD; USE SUCH A RECORD WITH KNOWLEDGE OF ITS FALSITY; OR MAKE A FALSE STATEMENT CONCERNING ANY REGISTRATION MADE UNDER THE PROVISIONS OF THE TEXAS SECURITIES ACT. t - 3/13/24I 6 r>'I ORNr'rON EXHIBIT 4 City of Denton Purchasing 901-B Texas St. Denton. TX 76209 Phone- (940) 349-7100 Fax: (940) 349-7302 www dentongurchasing com Substitute W-9 Form The IRS requires all vendors to complete a W-9 Form. The information on this form must be filled out, signed and submitted by a vendor representative. All information must be completed before /a�purchase order or payment will be issued. Name as shown on your income tax return: /T' � °�S«~ifi, J� �. Tax ID/Social Security #: %-S — / 3 8.2 /3 7 Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxtaxpayer identification number (or I am waiting for a number to be issued to me), and 2.1 am not subject to backup withholding because (a) I am exempt from backup witholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. 1 am a US citizen or other U.S. person -for fededral tax purposes as defined at thebottomof this page'. Authorized Signature /✓ Printed Name: Mail(np Address: Company Name. Hilltop Securities Inc. Contact Name: Address: 1201 Elan Street Suite 3500 Dallas, Texas 75270 Check appropriate box for federal tax classification fre4uireA, Individual/ ❑ sole [v3'^ Corporation ❑ Partnership Proprietor Must designate C or S c E] Exempt Els ., Email: Website: www.hillto]2securities.com Phone Number: (214) 953-4000 Fax Number: Limited Other ❑ Liability ❑ Pleasespecify: Corporation Business Type :Real Estate Equipment Royalties (A-2) ElRentauLease (At) E]Rentali'Lease (A-9) E:1❑ MedicaUHealth Care (A-6) Services Only (A Merchandise- Merchandise & ❑ 7) ❑ Goods Only (A-7) ❑ Services (A-7) ❑ Legal FirmlAtiomey (A -G) Consultant/Prof Proceeds from Fees (A•7) Real Estate EJ Purchases (S) Type of Organization: 1:1 Minority Owned ❑ Female Owned ElNon Profit ElHistorically Underutilized Business 'Definition of a U.S. Person -For Federal Tax purposes, you are considered a U.S. person if you are: (a) an individual who is a U.S. citizen or U.S. resident (b) a partnership, corporation, company, or association created or organized in the United States or under the laws of the United States (c) an estate (other than a foreign estate), or (d) a domestic trust (as defined in Regulations Section 301.7701-7). COD Page 1 9/23/2011 EXHIBIT 4 Vendor information Not Required for W-9 Form Remit Address if different from above Company Name: Contact Name: Address: Email: Phone Number: Fax Number: List Products and/or Services Interested in Bidding: For Internal Use Only ❑ New Vendor ❑ Vendor Change Vendor Number ❑ Refund Requesting Department Department Representative (Printed Name) ACH Information -Voluntary ABA Routing#: /t/ 00o G, -V 111000614 Contact Name: gocfG• L`' e o d Sara Wood Bank Account# 4 88 o s -o -7&g.r,, -0$$05076955 Bank Name: Z P /-/- �f" JP Morgan ACH Email : SOlFw . - Wood !GJ ACH Email: Phone Number: V7- V 8K - E-904, Date: Purchasing Signature Date: Fax Number 817. 3771 (we) authorize the City of penton to deposit payments into the checking account listed. The authority remains In effect until the City of Denton has received written notification from me of termination in time to allow reasonable opportunity to act on it, or until the City of Denton has sent me written notice of termination of the agreement. Vendor Signature— Print NamerTitle Date 1b•3 J- I to COD Page 2 9/23f2011 CONFLICT OF INTEREST QUESTIONN*MBiTq ?RM CIQ For vendor or other crson doing, business )vitt local governmental entity This questionnaire reflects changes made to the iaty by 11.13- 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 offiense if the person knowingly violates Section 176-006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. i�irst Southwest Asset \lana ement, [1,C Check this box if you are filing an update 10 a previously filed questionnaire. ('the law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7`h business day after the date the ori inall • tiled questionnaire becomes incomplete or inaccurate. 3 1 name of local government officerwith whom filer has an employment or business relationship. Not Applicable Name of Officer 'this section, (itein i including subparts A, B. C & D), must be completed for each officer with whom the filer has an employmcnl or other business relationship as defined by Section 176,001(1-a)- Local Gove-rt mLat Code. Attach additional pages to this norm CIQ as necessary. A_ Is the local governmem officer named in this section receiving or likely to receive taxable income, outer than investment income, from the filcr of the questionnaire? ED Yes 0 No n_ Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction oftbe local government officer named in this section AND the taxable income is not received from the local governmental entity? 0 Yes ED No CIs the filer ofthis questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes F-1 No I}. Describe each affiliation or business relationship. ® I have no Conflict of Interest to disclose. First o t st t Management, LLC - i Signature of Person doing business with the governmental entity Date CONFLICT OF INTEREST QUESTIONNAERMBnEORM CIQ Icor vendor or other person doing business with local governmental entit7' This questionnaire reflects changes made to the lav' by 11.13. 1491, 80th Leg., Regular Session. This questionnaire is beim filed in accordance with chapter 176 of the Local Government Code by a person who has a business relationship as defined by Section 176MI(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 he filed. See Section 176.006, Local Governtnent Code_ A person commits an offense il-the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. I Name of persan who has a business relationship with Iota[ gorernmentsAI cnlity. fSC Continuing Disclosure Service,, a Division of Ilillfop Securities Inc. Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate tiling authority not later than the 7'i' business day atter the date the ori finally fled ques6onnairc becomes incomplete or inaccurate.) 3 ;Same of locks government officer with whom filer has an empiovmcnl or business relationship. Not Applicable Name of Officer This sce:tion, (item 3 including subparts A, R; C K D), must be. completed for each officer with whom the filer has an employment or other business relationship as cicGned by Section 176.001(I -a), Local Govcrnmcnl Code. Attach additional pages to this Dorm CIQ as ncccssary- A. Is Lite local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire'' aF No 13. 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 gnvernntcnt officer named in this section AND the taxable income is not received from the local govennnental entity? El WS E-1 No C" Is the filer ofthis questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an oftiecr or director, or holds an ownership of 10 percent or more? ED Yes F—] No 1), describe each affiliation or business relationship. 4 1 have no Conflict of Interest to disclose. 5 FSC Contin ing DiScIoSurC Services, a Division of Hilltop ecurities j B (' Signature of person d g business with the governmental entity Date CERTIFICATE OF INTERESTED PAM#SIT 4 FORM 1295 1 of 1 Complete Nos. 1 - 4 and 6 if there are interested parties. OFFICE USE ONLY Complete No$. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION! OF FILING Certificate Number: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. 2016-1321.55 Hilltop Securities Inc. Dallas, TX United States Date Filed: iv0212016 2 Name of governmental entity or state agency that is a party to the contract for which the form is being tiled. City of Denton Date Acknowledged- 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. Contract # 6228 Financial Advisory and Continuing Disclosure Services Nature of interest 4 Name of Interested Party City, State, Country (place of business) (check applicable) Controlling intermediary Feinberg , Hill A Dallas, TX United States X Peterson, Robert W Dallas, TX United States X NMuschalek, John R Dallas, TX United States X Edge, J Michael Dallas, TX United States X Leventhal, Laura Dallas, TX United States X Hilltop Securities Holdings LLC Dallas, TX United States X 5 Check only If there Is NO Interested Party. ❑ 6 AFFIDAVIT I swear. or affirm, under penalty of perjury, that the above disclosure is true and correct. KELLY $RAGG .i pity Notaay ID # 125389720 Expires September 20, 2620 ignature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE JDC day of Sworn to and subscribed before ine, by the said 1CC_ jj�k • this the .0 2o1�_. to certify which, witness my hand and seal of office. I ` gnature F officer irdminisfering o Pnnted name of officer administ th Title of office ministering oath Forms provided by Texas Ethics Commission www.etnics.stdte.tx.ub G —1 1 . CERTIFICATE OF INTERESTED PA jiffIT 4 FORM 1235 10f1 Complete Nos. 1 - 4 and 6 it there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5. and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. 2016-132150 FSC Continuing Disclosure Services. a Division of Hilltop Securities Inc. Dallas, TX United States Date Filed: 1110212016 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Denton bate Acknowledged: g Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. Contract # 6228 Continuing Disclosure Services 4 Nature of interest Name of Interested Party City, State, Country (place of business) (check applicable) Controlling intermediary Feinberg , Hill A Dallas, TX United States X Peterson, Robert W Dallas, TX United States X Muschafek, John R Dallas, TX United States X Edge, J Michael Dallas, TX United States X Leventhal, Laura Dallas, TX United States X Hilltop Securities Holdings LLC Dallas, TX United States X 5 Check only if there is NO Interested Party. E 6 AFFIDAVIT I swear, or affirm, under penalty of perjury. that the above disclosure is true and correct. KELLY 6RAGG My Notary 10# 925389720r Expires 5epternber 26, 2020 WO ignature of authorized agent of contracting business entity AFFIX NOTARY STAMP 1 SEAL ABOVE Sworn to and subscribed before me. by the said Ori t 1 t lJl.tli t/y4 S this the day of 20, to certify which, witness my (rand and seal of office. ignature f o cer administeri h Printed Warne of offi6er administ g ath Title of offi administering oath Forms provided by Texas Ethics Commission w wd.ethics.stale.tx.u5 Version V1,0.277 CERTIFICATE OF INTERESTED PA Complete Nos. I - 4 and 6 if there are interested parties. Complete Nos. 1. 2. 3, S, and 6 if there are no interested parties. I Name of business entity filing form, and the city, state and country of the business entity's place of business. FirstSouthwest, a Division of Hilltop Securities Inc. Dallas, TX United States tYallw u! ywernmentar enaty or state agency that is a party to the contract for being filed. City of Denton FORM 1295 1 of 1 OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2016-132163 Date Filed: 11102!2016 Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract Contract # 6228 Financial Advisory Services 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check appitcable) Controlling Intermediary Feinberg , Hili A Dallas, TX united States X Peterson, Robert W Dallas, TX United States X Muschalek, John R Dallas, TX United States X Edge , J Michael Dallas, TX United States X Leventhal, Laura Dallas, TX United States X Hilltop Securities Holdings LLC Dallas, TX United States X 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. KELLY BRAGG f!: •' My Notary ID # 125389720 J Expiti2s September 20. 2020 gnature of authorized agent of contracting business entity AFFIX NOTARY STAMP 1 SEAL ABOVE Sworn to and subscribed before me, by the said this the p� 1 day of 20 Ito to Certify which, witness my hand and seal of office. of Printed name of 6fficcr admi oath Title of qfficer administering oath Forms provided by Texas Ethics Commission www.ethics.state.ums version V1,0,277 CERTIFICATE OF INTERESTED P Complete Nos. 1 - 4 and 6 if there are interested parties. Complete Nos. 1, 2, 3, 5, and 6 a there are no interested parties. Z Name of business entity filing form, and the city, state and country of the business entity's place of business. First Southwest Asset Management, LLC Dallas, TX United States lval— — yovernmentai entity or state agency that is a party to being tiled. City of Denton FORM 1295 ]oft OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 201.6-132157 Date Filed: 1x0212016 Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract Contract # 6228 Arbitrage Rebate Compliance Services 4 Nature of interest Name of interested Party City, State, Country (place of business) (check applicable) Feinberg. Hill A Medanich, David K Marz, Michael J First Southwest Holdings LLC 5 Check only if there is NO Interested Party, 6 AFFIDAVIT tiwuwew �= KFLLY BRAGG My Notary 101125389720 ExPill- SePiember 20, 2020 AFFIX NOTARY STAMP / SF -4L ABOVE Dallas, TX United States I X Dallas, TX United States I X Dallas, TX United States I X Dailas, TX United States I X I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. • �r ature of authorized agent of contracting business entity Swom to and subscribed before me, by the said 4 f elOX this the ..._, day of 20_1,L, to certify which, witness my hand and seal of office. Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1526, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Engineering Services ACM: Jon Fortune Date: December 6, 2016 SUBJECT Consider adoption of an ordinance closing, abandoning and vacating the right of way of Gary Street, conveyed in Volume 66 Page 623, Deed Records, Denton County, Texas, and located in the B.B.B. & C.R.R. Survey, Abstract No. 185, to accommodate construction by the Denton Independent School District; and declaring an effective date. [Abandonment of Gary Street - situated between North Locust and North Elm Street - DISD Administration facility expansion] BACKGROUND Denton Independent School District "DISD" has made a formal request for the City of Denton to abandon Gary Street. DISD is in the planning stages of near-term parking lot improvements and, in the long-term, a potential expansion of its Administration Building facility footprint. In 1997, DISD acquired property tracts on the south side of Gary Street, with the long range outlook of someday assembling those tracts with their Administration Building property tract, situated on the north side of Gary Street. The abandonment of Gary Street, a "mid -block" street with no connectivity beyond the one block, will have a nominal impact regarding traffic and pedestrian mobility for the area, since the Second Street and Third Street connectors between North Elm Street and North Locust Street are within 500 feet of each other. No public or franchised utilities exist within the subject right-of-way abandonment tract. There are only DISD service lines exiting within the subject right-of-way tract, and DISD is planning to address them at permitting/construction of their slated improvements. The subject abandonment request was reviewed by The Development Review Committee, and staff recommends the approval of the request. Staff performs an analysis on the request for abandonments as follows: ■ Is the right-of-way tract requested for abandonment considered "excess right-of-way?" ■ Does the right-of-way tract that is requested for abandonment have a continued public use? ■ Is it in the best interest of the general public to abandon the government's rights in the subject abandonment tract? ■ Would the granting of this request establish a precedent for right-of-way abandonment for future requests? City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1526, Version: 1 Staff findings on this analysis are as follows: 1. The requested right-of-way abandonment tract fits the criteria of "excess right-of-way." Typically, excess right-of-way is defined as: Property acquired or used by the City for right-of-way subsequently declared excess (not needed for any public project, the continuation of operation and maintenance of public facilities, and/or no foreseeable utility application in the future). In this situation with the Denton Independent School District being the only abutting property owner on both sides of the street, the only applicable consideration is that there is no longer a need to provide for general public use, i.e., vehicular / pedestrian travel or placement of franchise utilities. 2. The right-of-way abandonment tract has no continued general public use, i.e., vehicular / pedestrian travel or placement of franchise utilities. 3. The right-of-way abandonment is in the public interest, because the area for the subject abandonment is no longer needed by the general public or franchise utilities. 4. This abandonment will not set precedent, because the above three standards have been met. OPTIONS 1. Approval of the Ordinance. 2. Denial of the Ordinance. RECOMMENDATION Staff recommends approval of the Ordinance. ESTIMATED SCHEDULE OF PROJECT Spring of 2017. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Development Review Committee recommended approval on November 4, 2016. EXHIBITS 1. Location Map 2. Site Map 3. DISD project narrative letter 4. DISD near term Gary Street Concept map 5. DISD long term Gary Street Concept map 6. Ordinance Respectfully submitted: John T. Davis, PE Director of Engineering Services Prepared by: Mark A. Laird Real Estate Analyst Real Estate and Capital Support City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, LOCATION MAP M Gary Street DISD Abandonment Request 630 315 0 630 1,260 1,890 Exhibit 1 to the AIS Feet 4tdm-w� TY CL ODENTON COLLEGE EMERY m HUFFORD CORDELL ADMINISTRATION w J Gary Street 4 J THIRD CRESCENT z THIRD GROVE J m - ~ aSCO J COLLEGE U J o W PIRTLE w H © Q SA ER 4 ? w w v Y z SCHMITZ - p o z Oa O TEXAS z FRG S iN HA N tANANDLE WITHE S E AN z MAR HAL. `- 4 AULIN OO CONGRESS CO H ANNE ARKWA p LAN KEN PEARL MCKINNE Downtown PECAN t OAK Denton H LL OAK z L Lu Z FL G u.i Q HICKORY v �ALNU- M Gary Street DISD Abandonment Request 630 315 0 630 1,260 1,890 Exhibit 1 to the AIS Feet 4tdm-w� TY CL ODENTON SITE MAP Gary Street DISD Abandonment Request 90 45 0 90 180 270 Exhibit 2 to the AIS Feet 4t\-- CLdm-w� TY ODENTON City of Denton Planning Department Denton, Texas 76201 940-349-8541 EXHIBIT 3 attachment to AIS Coleman & Assoc. Land Surveying P. O. Box 686 Denton, Texas 76202 Phone(940)565-8215 Fax(940)565-9800 REGISTRATION #10095100 RE: ROW 16-0002 Project Name: Gary Street Abandonment Dear Sirs, The purpose of this right-of-way abandonment is to be able to combine through replat the existing Lot 6A, Block 4, Northside Addition with Lots 3A & 17A, Block 4, Northside Addition into one lot. Currently Gary Street lies between Lot 6A and Lots 3A & 17A. Denton Independent School District (Denton I.S.D.) plans to expand an existing parking area from Lot 6A, across Gary Street and into Lot 3A. Gary Street lies between 2nd Street and 3rd Street as shown on the original plat of the Northside Addition (Vol. 42, Pg. 14). The street was dedicated (Vol. 66, Pg. 623) to provide access to the south side of the school property and provide circulation for the elementary school traffic. When the elementary school was replaced with the administration complex in the late 80's, Gary Street was left open to provide access to -parking -lots -on either -side -and for professional buildings onlots 3A and 17A on the south side of the street. Denton I.S.D. later acquired lots 3A and 17A in 1997 (Doc. No. 97-R0000885) and incorporated them into the administration complex. Denton I.S.D. now wishes to combine parking and access between the two administration properties, eliminating the need for public access to either property from the current Gary Street. This abandonment is tied to existing City of Denton Project Number FR16-0003. During the replat process City of Denton staff requested that 15 ft. by 15 it. corner clips be dedicated at the intersections of Gary Street with Elm Street and Locust Street. City staff stated in order to not dedicate the corner clips, Gary Street abandonment would need to be approved by separate instrument before filing the replat. Any questions or comments concerning this document should be directed to the undersigned. Sincerely, 1& Marc G. DeGenaro, Project Manager Coleman & Assoc. Land Surveying Near Term Gary Street Concept (19 PARKING SPACES) > UA CL. cot Cl, CM Cl. � I L-7— EXHIBIT 4 attachment to AIS Gary St. 14 s iii! UA CL. cot Cl, CM Cl. � I L-7— EXHIBIT 4 attachment to AIS Gary St. 14 UA CL. cot Cl, CM Cl. � I L-7— EXHIBIT 4 attachment to AIS Gary St. L_J L_ Long Term Gary Street Concept EXHIBIT 5 attachment to AIS Gary St. Fri Cil £1] Gary St. EXHIBIT 6 attachment to AIS S:ALegal\Our Documents\Ordinances\16\Ordinance-Gary Street Abandon - revised.docx ORDINANCE NO. AN ORDINANCE CLOSING, ABANDONING AND VACATING THE RIGHT OF WAY OF GARY STREET, CONVEYED IN VOLUME 66 PAGE 623, DEED RECORDS, DENTON COUNTY, TEXAS, AND LOCATED IN THE B.B.B. & C.R.R. SURVEY, ABSTRACT NO. 185, TO ACCOMMODATE CONSTRUCTION BY THE DENTON INDEPENDENT SCHOOL DISTRICT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton is the holder of the Right of Way commonly referred to as Gary Street; WHEREAS, the City of Denton ("City") has received a request for the closure, abandonment, and vacation of the Gary Street Right of Way from the Denton Independent School District ("DISD"); and WHEREAS, the fifty foot (50') wide Right of Way to be abandoned and vacated is located in the B.B.B.&C. R.R. Survey, Abstract No. 185 and further described in the Deed recorded in Volume 66, Page 623, of the Deed Records of Denton County, Texas, now also referenced as Document Number 1898-77001081, and also being specifically described and depicted in Exhibit A, attached hereto, all being incorporated by reference and description and made a part hereof (the "Abandonment Tract"); and WHEREAS, the City reviewed the requested closure, abandonment, and vacation of the Abandonment Tract and determined that a Gary Street is no longer needed, and recommended approval of the request; and WHEREAS, the City Council of the City of Denton, Texas, has determined that the Abandonment Tract is no longer needed for public use and finds it is in the public interest to close, abandon, and vacate the Abandonment Tract; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON ORDAINS: SECTION 1. The recitations and finding set forth above are incorporated by reference. SECTION 2. The Abandonment Tract is hereby closed, abandoned, and vacated and all right, title, and interest of the City in and to the Abandonment Tract is released. SECTION 3. The provisions of this ordinance are severable, and the invalidity of any phrase, clause or part of this ordinance shall not affect the validity or effectiveness of the remainder of the ordinance. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 4 CHRIS WATTS, MAYOR Page 2 EXHIBIT "A" attachment to Gary Street Abandonment Ordinance Coleman & Assoc. Land Surveying P. O. Box 686 Denton, Texas 76202 Phone(940)565-8215 Fax(940)565-9800 REGISTRATION # 10095100 Gary Street Abandonment 0.381 of an acre FIELD NOTES to all that certain tract of land situated in the BBB&CRR Co. Survey Abstract Number 185, City of Denton, Denton County, Texas and being all of Lot 5 and Lot 16, Block 4, Northside Addition as shown by the plat thereof recorded in Volume 42, Page 14 of the Deed Records of Denton County, Texas as described in the Street Dedication Deed from G. B. Collins to the City of Denton recorded in Volume 66, Page 623 of the said Deed Records; the subject tract being more particularly described with bearings relative to Texas Coordinate System of 1983 North Central Zone (4202) based on GPS ties to Geodetic Control as follows: BEGINNING for the Southwest corner of the tract being described herein at an "X" set in a concrete sidewalk at the Southwest corner of the said Lot 16 and the Northwest corner of Lot 17A, Block 4, Northside Addition as shown by the replat thereof recorded in Cabinet J, page 147 of the Plat Records of Denton County, Texas and also being in the East right-of-way line of Elm Street; THENCE North 00 Degrees 14 Minutes 35 Seconds West with the East right-of-way line of Elm Street a distance of 50.00 feet to the Northwest corner of Lot 16; THENCE North 89 Degrees 50 minutes 38 Seconds East with the North line of Lot 16 and the North line of the said Lot 5 a distance of 331.87 feet to the Northeast corner thereof on the West right-of-way line of Locust street; THENCE South 00 Degrees 05 Minutes 59 Seconds East with the West right-of-way line of Locust Street a distance of 50.00 feet to the Southeast corner of Lot 5; THENCE South 89 Degrees 50 Minutes 38 South line of Lot 16 a distance of 332.40 0.381 of an acre of land. Seconds West with the South line of Lot 5 and the :et to the PLACE OF BEGINNING and enclosing Page 1 of 2 25 BEARINGS BASED ON: TEXAS COORDINATE SYSTEM OF 1983, NORTH CENTRAL ZONE (4202) ESTABLISHED BY GPS TIES TO GEODETIC CONTROL N0 10 50 REFERENCE FRAME: NA083 (2011) EPOCH 2010 LOT 6A, BLOCK 4, NORTHSIDE ADDITION CAB. E, P. 104 CALLED ALL OF LOTS 6-15, BLOCK 4, NORTHSIDE ADDITION CITY OF DENTON V. 67, P. 435 N 89'50'38" E 331.87' W � F GARY ST. x STREET DEDICATION TO CITY OF DENTON 0 O M LO p V. 66, P. 623 € 1 )D G, 1111001K -1, LO O lq0mvl?;wm,' to LA0r 1Ij;r i7rloq ;",. D W13. J. I'. I�7 z �---z_ S 89'50 38 W1 1.332.40 SEE ACCOMPANYING METES & BOUNDS DESCRIPTION z GARY STREET ABANDONME ALL OF LOTS 5 & 16, BLOCK 4, NORTHSIDE ADDITION OF' E CITY OF DENTON 40 "'Iz- TE � IDENTON COUNTY, TEXASVVm.'m ;' '40B #: 16-2026 9rv0RAWN: MGD UPDATED: gsjsq���f ,CHECKED: WMC DATE: 06-20-16 �P EVISED: SCALE 1" = 50' Page 2 of 2 V V1 Coleman & Assoc. Land Surveying P. O. BOX 686 - DENTON, TEXAS 76202 PH(940)565-8215,FAX (940)565-9800, www.colemansurveying.com @2016 COLEMAN & ASSOC. LAND SURVEYING Lr.v.cs.i o o o € CALLED LOT 3A, BLOCK 4, CALLED LOT 17A. BLOCK 4, I e NORTHSIDE ADDITION F-- 3 NORTHSIDE ADDITION DENTON I.S.O. 97—R0000885 ' DENTON I.S.D.DOC/ DOC# 97—R0000885 R.P.R.O.Co.Tx. 'v R.P.R.O.Co.Tx. b VI N Z Vl W SPF Oul 0 J It I � a G 5 SEE ACCOMPANYING METES & BOUNDS DESCRIPTION z GARY STREET ABANDONME ALL OF LOTS 5 & 16, BLOCK 4, NORTHSIDE ADDITION OF' E CITY OF DENTON 40 "'Iz- TE � IDENTON COUNTY, TEXASVVm.'m ;' '40B #: 16-2026 9rv0RAWN: MGD UPDATED: gsjsq���f ,CHECKED: WMC DATE: 06-20-16 �P EVISED: SCALE 1" = 50' Page 2 of 2 V V1 Coleman & Assoc. Land Surveying P. O. BOX 686 - DENTON, TEXAS 76202 PH(940)565-8215,FAX (940)565-9800, www.colemansurveying.com @2016 COLEMAN & ASSOC. LAND SURVEYING City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON Legislation Text File #: ID 16-1531, Version: 1 Agenda Information Sheet DEPARTMENT: Fire CM/ ACM: John Cabrales, Jr. Date: December 6, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No. 2015-306 to prescribe updated titles and number of positions for certain classifications of Fire Department personnel; providing repealer, cumulative and severability clauses; and declaring an effective date. BACKGROUND Civil Service law, Texas Local Government Code, Chapter 143, requires governing bodies of all jurisdictions with Civil Service employees to officially authorize their exact number of Civil Service employees. The City Council last approved the authorized number of Fire Department Civil Service positions by Ordinance 2015-306 on October 20, 2015. Staff requests the City Council's approval of the current number of Civil Service positions for the Fire Department as budgeted for FY 2016-17 and is detailed below. For the 2016-2017 Fiscal Year, City Council approved the budgetary reinstatement of the Fire Training Captain. The Fire Training Captain's position had not been funded since Fiscal Year 2010-2011 due to the City's self-imposed hiring freeze, however, the number of authorized civil service positions was not reduced. With the approval of the Fiscal Year 2016-2017 budget, all Captains positions have been funded. One Captain will be assigned to the Fire Training Captain position and 24 Captains positions will be assigned to operational duties as fire station officers. In addition, City Council approved the 2016-2017 supplemental package request for Medical Unit 8, which consists of a total of six full time Civil Service employees. The Medic Unit will be staffed with three Fire Drivers and three Firefighters. This approval brings the total Drivers from 45 to 48 a total of 81 to 84 Firefighters. If the City Council adopts the amended ordinance on December 6, 2016, this authorizes the correct number of Civil Service positions. The total number of authorized Civil Service positions in the Fire Department will increase from 172 to 179. City of Denton Page 1 of 3 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1531, Version: 1 CLASSIFICATION FY 2015-2016 NUMBERS Ordinance 201.5-306 FY 2016-2017 NUMBERS Revised Ordinance Fire Chief 1 1 Assistant Fire Chief 1 1 Fire Marshal 1 1 Battalion Chief -Operations 6 6 Deputy File Marshal 1 1 Emergency Management Program. Manager 1 1 Fire Coninni city Services Officer 1 1 Fi:°e'I minirig Captain 0 l Captain 25 Fire Protection. Specialist 1 1 Drivet, 45 4. File Inspector Specialist I 6 6 FifeInspectorSpecialist II 2 2 Firefighter(,,.-nAMRecruits) 81 ,�, TOTALS 172 179. FISCAL INFORMATION There will be no additional fiscal impact due to the fact that all authorized positions have been funded in the Fiscal Year 2016-2017 Budget. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Safe, Liveable & Family -Friendly Community Related Goal: 4.1 Enhance public safety in the community FxHIRITC Exhibit 1: Ordinance No. 2015-306 Exhibit 2: Ordinance Respectfully submitted: Paulsgrove Fire Chief Robin City of Denton Page 2 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, File #: ID 16-1531, Version: 1 Prepared by: Allison Carlwicz Fire Administrative Manager City of Denton Page 3 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, EXHIBIT 1 ORDINANCE NO. 2015-30� ,. AN ORDINANCE AMENDING ORDINANCE NO. 2013-016 TO PRESCRIBE UPDATED TITLES AND NUMBER OF POSITIONS FOR CERTAIN CLASSIFICATIONS OF FIRE DEPARTMENT PERSONNEL; PROVIDING REPEALER, CUMULATIVE AND SEVERABILITY CLAUSES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, on February 5, 2013, the City Council passed Ordinance No. 2013-016, adopting and approving a schedule of Authorized Positions relating to classification of police officers and fire fighters; and WHEREAS, since the passage of Ordinance No. 2013-016, the Fire Department has updated the titles and number of positions designated for certain classifications of Fire Department personnel and have submitted the revisions to the City Council for review and approval based on the Department's determination that these changes are in the Department's best interest; and WHEREAS, the Denton Fire Fighters Association, IAFF Local 1291 with whom the City is a party under the Meet and Confer Agreement, agrees with the revisions as reflected in the Second Amendment to Meet and Confer Agreement which the City Council has ratified and adopted by Ordinance No. 2015-260; and WHEREAS, the City Council has considered these updated classification titles and numbers and has found these changes to be in the City's best interest and accordingly has determined that Ordinance No. 2013-016 should be amended to reflect the revised classification titles and total number of Fire Department positions. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Ordinance No. 2013-016 is hereby amended as provided herein. SECTION 2. The City Council hereby adopts and approves a schedule prescribing the revised titles and number of positions for the following Fire Department Classifications for FY 2015-2016, as shown in the chart 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 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, Page 1 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 as provided by law. PASSED AND APPROVED this the '26 day of�,�015. .............. �_...,. a...... �. ;I IRI A I I'S, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ' A APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 2 Exhibit A CLASSIFICATION FY 2013-2013 FY 2015-2016 Fire Chief- _ ....... mm..�...�...�._ ...... �m......_......,._ ��.n..,._ � � ..�. 1 0 ..,...,,_ Assistant Fire Chief ........� _. �.... _...0 .�_ _ww.W�... � .aa... Fire Marshal .�... m� 1 ..n w.... ._............ ,...m......__�... Chief — Operations Battalion1 �.. 6 6 Deputy Fire Marshal...._ 1 Emergency Management Program 1 1 Manager l.:i lam_ �Ma�a;�e Aalt _ 1-1111--.. 1 �__ ._.� 0 ...e.�,. Fire Community Services O... .... _n.� ..... ... Officer 0 1 Captain ..._.......... �. 25 —_. .... 25 1.........,........�....— Fire Protection Specialist 42 w. .._„ 1 m Driver 4 Fire Inspector Specialist I��... m .. .......v,._ 5 _—_�.�..�._..... 6 Fire Inspector Specialist 11 0 (vacancy ....�...� 2 _ ..._._._._._...n FirefighterSand recruits 768 ... 81 m TOTALS " . ............. --t 172 Page 3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING ORDINANCE NO. 2015-306 TO PRESCRIBE UPDATED TITLES AND NUMBER OF POSITIONS FOR CERTAIN CLASSIFICATIONS OF FIRE DEPARTMENT PERSONNEL; PROVIDING REPEALER, CUMULATIVE AND SEVERABILITY CLAUSES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, on October 20, 2015, the City Council passed Ordinance No. 2015-306, adopting and approving a schedule of Authorized Positions relating to classification of police officers and fire fighters; and WHEREAS, since the passage of Ordinance No. 2015-306, the Fire Department has updated the titles and number of positions designated for certain classifications of Fire Department personnel and have submitted the revisions to the City Council for review and approval based on the Department's determination that these changes are in the Department's best interest; and WHEREAS, the Denton Fire Fighters Association, IAFF Local 1291 with whom the City is a party under the Meet and Confer Agreement, agrees with the revisions as reflected in the Second Amendment to Meet and Confer Agreement which the City Council has ratified and adopted by Ordinance No. 2015-260; and WHEREAS, the City Council has considered these updated classification titles and numbers and has found these changes to be in the City's best interest and accordingly has determined that Ordinance No. 2015-306 should be amended to reflect the revised classification titles and total number of Fire Department positions; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Ordinance No. 2015-306 is hereby amended as provided herein. SECTION 2. The City Council hereby adopts and approves a schedule prescribing the revised titles and number of positions for the following Fire Department Classifications for FY 2016-2017, as shown in the chart 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 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, Page 1 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 as provided by law. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 2 CHRIS WATTS, MAYOR Exhibit A CLASSIFICATION FY 2015-2016 NUMBERS Ordinance 2015-306 FY 2016-2017 NUMBERS Revised Ordinance Fire Chief 1 1 Assistant Fire Chief 1 1 Fire Marshal 1 1 Battalion Chief -Operations 6 6 Deputy Fire Marshal 1 1 Emergency Management Program Manager 1 1 Fire Community Services Officer 1 1 Fire Training Captain 0 1 Captain 25 24 Fire Protection Specialist 1 1 . Driver 45 48 Fire Inspector Specialist I 6 6 Fire Inspector Specialist II 2 2 Firefighter (and Recruits) 81 84 TOTALS 172 179 Page 3 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON Legislation Text File #: ID 16-1573, Version: 1 Agenda Information Sheet DEPARTMENT: Police CM/ ACM: John Cabrales, Jr. Date: December 6, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, amending Ordinance No. 2015-230 to prescribe updated titles and number of positions for certain classifications of Police Department personnel; providing repealer, cumulative and severability clauses; and declaring an effective date. BACKGROUND Civil Service law, Texas Local Government Code, Chapter 143, requires governing bodies of all jurisdictions with Civil Service employees to officially authorize their exact number of Civil Service employees. The City Council last approved the authorized number of Police Department Civil Service positions by Ordinance 2015-230 on August 4, 2015. Staff requests the City Council's approval of the current number of Civil Service positions for the Police Departments as budgeted for FY 2016-17 and is detailed below. For the 2016-2017 Fiscal Year, the City Council approved the increase of police sworn operations personnel. The supplemental package approval increased the number of Lieutenant's from eight to nine which enables the Department to have a shift manager on every patrol shift. In addition, this package also increased Police Officer positions from 135 to 141. The four Officer positions augment existing patrol staffing during high call volume timeframes and two Officer positions will respond to traffic issues and major accidents. If the City Council adopts the amended ordinance on December 6, 2016, this authorizes the correct number of Civil Service positions. The total number of authorized Civil Service positions in the Police Department will increase from 164 to 171. City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1573, Version: 1 CLASSIFICATION FY 2015-201.6 NUMBERS Ordinance 201.5-230 FY 2016-2017 NUMBERS Revised Ordinance Police Chief 1 1 Deputy Chief 3 3 Captain 0 0 Sergeant 17 17 Police Offis,..w s & Recruits 135 1141 TOTALS ALS 164 1.7.1. FISCAL INFORMATION There will be no additional fiscal impact due to the fact that all authorized positions have been funded in the Fiscal Year 2016-2017 Budget. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Safe, Liveable & Family -Friendly Community Related Goal: 4.1 Enhance public safety in the community EXHIBITS 1. Ordinance No. 2015-230 2. Proposed Ordinance for Police Respectfully submitted: Robin Paulsgrove Fire Chief Prepared by: Allison Carlwicz Fire Administrative Manager City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, EXHIBIT I s:Aegallourdocuments\ordinances\1512014-2015 swom officer ordinance 2.docx ORDINANCENO. 2015-230 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, 111 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. SECTIONS. This ordinance shall become effective immediately upon its passage and approvaL PASSED AND APPROVED this the 1, ,, t = > > > = -- 2015. CHRIS WAITS, MAYOR s Aega\\our documents\ordinances\ 15\2014-2015 swom officer ordinance 2.docx ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APP. VEO ;TO LEGAL FORM: ANIT BURGESS, CITY ATTORNEY BY: Page2 s:\legal\our documents\ordinances\1512014-2015 swom officer ordinance 2.docx EXHIBIT "A" Police Department: CLASSIFICATION 2014-423 NUMBERS Proposed NUMBERS Chief of Pollee 1 1 Deputy Chief 3 3 Captain 0 0 Lieutenant 8 8 Sergeant 16 17 Police Officer (and Recruits) 135 135 TOTALS 1631 164 Page3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING ORDINANCE NO. 2015-230, PRESCRIBING THE NUMBER OF POSITIONS IN EACH CLASSIFICATION OF POLICE OFFICER; PROVIDING REPEALER CLAUSE; AND DECLARING AN EFFECTIVE DATE. WHEREAS, on August 4, 2015, the City Council passed Ordinance No. 2015-230, adopting and approving a schedule of Authorized Positions relating to compensation and classification of police officers and fire fighters; and WHEREAS, since the passage of Ordinance No. 2015-230 the Police Department has determined that this ordinance needs to be amended to more correctly reflect the total number of Police Department positions; and WHEREAS, the City Council has considered these updated classification titles and numbers and has found these changes to be in the City's best interest and accordingly has determined that Ordinance No. 2015-230 should be amended to reflect the revised classification titles and total number of Police Department positions; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Ordinance No. 2015-230 is hereby amended as provided herein. SECTION 2. The City Council hereby adopts and approves a schedule prescribing the number of positions for each classifications of police officer in the City of Denton, for FY 2016- 2017, as shown in the chart 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 as provided by law. Page 1 PASSED AND APPROVED this the day of 12016. ATTEST:A JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Page 2 CHRIS WATTS, MAYOR Exhibit A CLASSIFICATION FY 2015-: NUMBF Ordinance 2� Police Chief 1 De uty Chief 3 Ca tain 0 Lieutenant 8 Ser eant 17 Police Officers & Recruits 135 TOTALS 164 Page 3 City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1459, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Economic Development CM/ ACM: Howard Martin Date: December 6, 2016 SUBJECT Consider a nomination to the City's Economic Development Partnership Board. BACKGROUND Due to the passing of Economic Development Partnership Board member John Gilmer, it was necessary to appoint a Nominating Committee to recommend an appointee to complete Mr. Gilmer's unexpired term. Mr. Gilmer filled one of the two seats on the EDP Board held by representatives of top 20 City of Denton taxpayers, as specified in the Economic Development Partnership Board Ordinance (2016-249). The new appointee must also be a representative of a top 20 City of Denton taxpayer. After reviewing the list of top 20 City of Denton taxpayers, the Nominating Committee selected Steven Edgar, the president and chief executive officer of Denton Regional Medical Center. The committee confirmed Mr. Edgar's willingness to serve. RECOMMENDATION The Nominating Committee recommends Steven Edgar to fill the unexpired term on the Economic Development Partnership Board. PRIOR ACTION/REVIEW (Council, Boards, Commissions) November 8, 2016 - Council appointed Councilmembers Dalton Gregory and Joey Hawkins and Denton Chamber of Commerce Board of Directors member Marty Rivers to serve as the Nominating Committee. STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Economic Development Related Goal: 3.4 Encourage development, redevelopment, recruitment, and retention City of Denton Page 1 of 2 Printed on 12/2/2016 povveied by I_egivt9i IN File M ID 16-1459, Version: 1 Respectfully submitted: Caroline Booth Director of Economic Development City of Denton Page 2 of 2 Printed on 12/2/2016 povveied by I_egist9i I;, City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1485, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: Police Department CM/ ACM: John Cabrales, Jr. Date: December 6, 2016 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas amending Section 18-38 of the Code of Ordinances relating to the use of wireless communication devices while driving to prohibit the use of wireless communication devices while operating a motor vehicle; providing a repealer clause; providing for a penalty as a Class C Misdemeanor for violations of this ordinance; and providing for an effective date. Traffic Safety Commission recommends approval (5-0). BACKGROUND On May 6, 2014, the City Council adopted Ordinance 2014-112 prohibiting texting while driving on any roadway within the City of Denton, excluding the interstate highways and their associated frontage roads. City Council requested reconsideration of Ordinance 2014-112 to strengthen restrictions on handheld communication devices on all roadways in the City limits. On February 23, 2016, City Council received a presentation on this issue, including data concerning distracted driving and the effectiveness of police enforcement since the ordinance was effectuated. City Council directed staff to take the issue to the Traffic Safety Commission for consideration. On March 7, 2016, staff made a presentation to the Traffic Safety Commission and received direction to amend the current ordinance to allow drivers the use of hands-free only devices for all roadways. On May 2, 2016, staff provided a formal recommendation to the Traffic Safety Commission on the matter. The Commission recommended forwarding to City Council a complete ban on the use of handheld devices while driving (5-0). On June 7, 2016, City Council received a presentation on the issue including information on crash factors, fatality crashes, and enforcement of the current ordinance in the City. Council Members requested a report with additional data. The item was scheduled and then reset from the June 21, 2016, agenda to October 18, 2016. On October 18, 2016, City Council received a Work Session briefing and requested the item be set for Individual Consideration on November 1, 2016. On November 1, 2016, Council Members resumed the discussion and requested further amendments to the ordinance. DISCUSSION Staff collaborated on a new draft of amendments and revisions to Section 18-38. The details of these changes are outlined in the December 2, 2016, Legal Briefing. CONCLUSION City of Denton Page 1 of 3 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1485, Version: 1 ❑esearchers and proponents of tougher laws widely agree that long term cultural and attitude changes toward distracted driving, wireless use, and the general responsibility of driving safely are required for a lasting effect. Culture and attitude change takes time, constant reminders, and reinforcement, and often has the greatest impact on those who have not already developed bad habits. The ES Department of Transportation, National Eighway Transportation Safety Edministration (NETS E) publishes a EBlueprint to ❑educe Distracted Driving❑which can be found at www.distraction.Qov <http://www.distraction.gov>. ❑ey elements to this campaign are listed below❑ ❑aising Eublic ❑wareness Leading by Example ❑Eublic Eolicies on Distraction ❑esearch ❑ Development Enact and Enforce Tough State Laws ❑ddress Technology Better Educate ❑oung Drivers Laws, ordinances, and enforcement efforts are only one component and are not the answer to broad, permanent behavior change. Several good public service campaigns sponsored by the N❑TS❑, E.S. Department of Transportation, Texas Department of Transportation, and others are available online. The City Es television channel, DTE, airs several public service announcements related to distracted driving. Most of these public service announcements are related to the national campaign ❑ EStop the texts. Stop the wrecks. ❑ In addition, several DT ❑ Newsbreak stories have been highlighting the City Es awareness effort and the City Council Es action pertaining to handheld cell phone usage. Most Eolice Department vehicles display a Mang ❑p and Drive❑ bumper sticker and ❑D staff has distributed those along with anti-texting[driving posters to many businesses. ❑D staff is currently working with a student group at ❑yan ❑igh School to produce a video to be used in a distracted driving awareness initiative at DISD. ❑n effective date of June 1, 2017, for the amended ordinance, will allow time for continued awareness campaigns and signage to be posted. In terms of reducing crashes, data trends and analysis continue to find mixed results regarding the effectiveness of state laws and local ordinances prohibiting wireless use. There are too many variables between states and different cities to make head to head comparisons. Considering the fact that wireless use can only be attributed to a small portion of total crashes, a one or two percent change in a short time period may be all that is reali Fed, and a multitude of factors may account for those small percentages, or counteract them. It is supported by data that distracted driving is a maTor contributing factor in many crashes, and as an overall causing factor, is on the rise. Wireless device use as a percentage of distracted driving is also increasing. Due to the nature of distracted driving, associated crashes often involve vehicles colliding with fixed ob Eects, leaving the roadway, impacting slow or stopped vehicles from behind, and head on collisions. These all have a high probability of inEuries and fatalities. OPTIONS: 1. ❑pprove draft Ordinance 2014-112 as amended allowing the use of hands-free devices only and prohibiting the use of handheld wireless communication devices while driving on any roadway within the City of Denton. 2. Erovide staff with additional direction on proposed revisions to Ordinance 2014-112. 3. Take no action and maintain the current language included in Ordinance 2014-112. City of Denton Page 2 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, File #: ID 16-1485, Version: 1 PRIOR ACTION/REVIEW (Council, Boards, Commissions) On May 6, 2014, the City Council approved Ordinance No. 2014-112, prohibiting texting while driving on any roadway within the City of Denton. On February 23, 2016, the City Council received a Work Session briefing related to Ordinance No. 2014-112 from Chief ❑owell. Council requested the Traffic Safety Commission review the existing ordinance. On March 7, 2016, Traffic Safety Commission reviewed Ordinance No. 2014-112 requesting staff to bring formal recommendation back to the Commission for formal consideration and action. On May 2, 2016, the Traffic Safety Commission received a report and recommended forwarding a complete ban on the use of handheld devices while driving (5-0). On June 7, 2016, the City Council received a Work Session briefing related to Ordinance 2014-112 from Chief ❑owell. Council requested a report with additional data. On October 18, 2016, the City Council received a Work Session briefing and requested the item be set for Individual Consideration on November 1, 2016. Council requested a report with additional data. On November 1, 2016, the City Council discussed the proposed ordinance and gave staff direction to further revise Section 18-38 and reset the item for December 6, 2016. FISCAL INFORMATION The preliminary estimate to replace approximately 60 existing sign blades is El 0,000. STRATEGIC PLAN RELATIONSHIP The City of Denton 1s Strategic Clan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Eey Focus Ereas (EFE)E OrganiFational Excellence; Eublic Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple EFEs, this specific City Council agenda item contributes most directly to the following ❑F ❑ and goal ❑ Related Key Focus Area: Safe, Liveable & Family -Friendly Community Related Goal: 4.1 Enhance public safety in the community EXHIBITS Exhibit 1 - Current Ordinance 2014-112 Exhibit 2 - Transportation Code Definitions Exhibit 3 - Eroposed Emended Ordinance 2014-112 ❑espectfully submitted❑ Lee ❑owell Chief of Eolice City of Denton Page 3 of 3 Printed on 12/2/2016 povveied by I_egist9i I;, 'Gr I � a-,, C, 5\ 14"! s"Gf"�' retic.: -mac �r_ ng i T._ f. F) ', v I �' r ORDINANCE NO, 2014-112 AISO RDENANCE OFTHE CITY OF DENTON, TEXAS ADDING SECTION 18-38 OFTIIE_' T CODE OF ORI)FINANCES RELA]L "INGTO THE ISE OF WIR-ELESS COMM UNICAJ'ION DEVICES WHILE DRIVING: BY CREAJ'f\,G SECTION 18-38 TO PROIIIBITTHE USE OF WIRELESS COMMUNICATION DEVICES WHILE OPERATING A MOTOR VEHICLE EXCEPT FOR DIALING A NUM13ER OR TALKING TO ANOTHER PERSON WITH CERTAIN DEFENSES; ISI OVIDrNG A REPEALER CLAUSE. PROVIDING A SAVINGS CLAUSE; PROVIDTNG FOR A PENALTY NOT TO EXCEED S'200 FOR VIOLATIONS OF THIS OR.'-)!NANCE; AND PROV!DfNG FOR AN EFFECTIVE DATE, WHEREAS, the Denton City Council finds that the use of a wireless communication device to send, read, or write a text message, view pictures or written text, whether transmitted by internet or other, electronic means, engage it, gaming or any other use of the device, other than dialing telephone numbers, or talking to another Person while operating a moving motor vehicle, is a traffic hazard, a danger to the public and creates a particular danger or probability of danger in the City of Denton; and WHEREAS, the interstate highway system may be distinguished from the other roadways within the City because it is both a limited access highway system within the City of Denton and a roadway on which a large percentage of motor vehicle operators on the interstate highway system are travelling thlrough the city without ever exiting the interstate highway system, WHEREAS, it is in the interest of public safety to restrict the use ofwireless communication devices by persons operating motor vehicles on City 'public roadways and highways other than the interstate highway systern;, and WHEREAS, prohibiting the use of wireless communication devices while driving in the City of Denton, to the extent allowed by §545.425(f), '-I'cxas Transportation Code, addresses the possible hazards produced by a distracted driver as the result of: (1) sending or reading text messages, instant inessages; (2) viewing or accessing internet sites, or (3)) viewing or accessing other data that uses commonly recognized, electronic communications protocol; and WHEREAS, the Denton City Council believes that prohibiting, the use of wireless communication devices to engage in any use of a mobile con-Lmunication device other than dialing Z-1 telephone numbers or talking to another person, with certain defenses, would further and protect the public health, satiety, and welfare-, "�OWTHE RI"'T'01,U: THE COT�CIL OF THE CITY OF DEN I'ON HEREB, Y ORDAINS: St"CTION 1. The findings and recitations col',tained in the preamble of this ordinance are incorporated herein by reterence as TrUe. SECTI-ON-12, Chapter 18 "Motor Vehicles and Traffic" of the Code of Ordinances of Denton, Texas is hereby amended by adding Section 18-38 regarding the use of wireless P communication devices while driving on all streets and highways within the City of Denton other than any streets within the interstate highway system. Section 18-38 shall read as follows: Sec. 18-38 Use of Wireless Communication Devices While Driving® (a) In this section, a "flands-free device" rricans speakerphone capability or a telephone attachment to other piece of equipment, regardless of whether pernianently installed in the motor vehicle, that allows use of the wireless device without use of either of the operator's hands. (b) In this section, "Text message" me ns a two-way communication (whether real - Lime or asynchronous) in which data (composed in whole or in part of text, numbers, images, or symbols) is sent, entered, or received by a method other than by voice and transmitted through either a short message service (SMS) or a corn titer network, (C) In this section, "Wireless Communication Device" has the meaning assigned in Section 545.4,25 (1—'se of Wireless Communication Device-, Offense) of the Texas Transportation Code-, Further, "Wireless C orn rn uni cation Device" means a text - messaging device or other electronic, two-way communication device that is designed to receive and transmit voice communication, text or pictorial communication, or both, whether by internet or other electronic means, The term includes a mobile telephone, and a personal digital assistant (PDA). (d) In this section, "Wireless Tele,phone Service" rneans two-way, real time voice telecommunications service that is interconnected to a public switched telephone network and is commonly referred to as cellular service or cornmunication service. I personal A person commits an of if the person uses a wireless communication device to send, raid, or write a text message, view pictures or written text, whether transmitted by internet or other electronic means. enga I ge in gaming or any other use of` the device, besides dialing telephone nUrnherS or talking to another person, while operating a motor vchicle, It is an affirmative defense to prosecution of an offense Linder this section is a wireless communication device is used: While the vehicle is stopped, out of the moving larges of the roadway; 1 Strictly to engage in a telephone conversation, including dialing or deactivating a call; 3. That is affixed to the vehicle and used as a global positioning or navigation system; 4. For obtaininv ., erriergency assistance to report a traffic accident, medical emergency, or serious traffic hazard, or to prevent a crime about to be committed or being core mihed; Paas 2 eat, I z�,OcrT_,xt , gEf &eo, : I 5. In the reasonable belief that a person s, life or safety is in immediate danger; or 6, Solely in a voice --activated or other i-andrnode, (g) This ordinance does not apply to; I. An operator of an authorized emergency vehicle using a wireless communication device while acting in an official capacity, and 2. An operator who is licensed by the Federal Communications Commission operating a radio frequency device other than a wireless communication device, (h) This ordinance does not apply to a person operating a motor vehicle on any street or highway in the, City of Denton on the interstate highway system, The interstate 1 0 1 highway system within the City of Denton includes the following roadways: I. interstate Highway 35 East;. 2. Interstate Highway 35 West, I Interstateflighway35; and 4. All the frontage and access roads providing access to the three interstate highways. (i) To the extent that this section conflicts with the, Texas Transportation Code Section 54'-11,424.. regarding the use of wireless communication devices while operating a motor vehicle by minors.,, or Texas Transportation Code Section 545.425, regarding the use of'wireless communications devices in school zones or by the operators of'school busses, this section does not apply. No citations will be issued 11"or the first 30 days following the effective dare of this Ordinance so that in educational cfion by the City` of Denton aiav be conducted to inform tile public about the inlAportance and requirements of' this new Ordinance. TI .N_ 3, If' any section, subsection, para rap, I h. 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 L)enton, Texas hereby declares it Would have enacted such remaining portions despite any invandity, SEC HON 4. Save and except a,.--,, arnended hereby, all the provisions. sections, subsections, paragraphs, sentences, GLIUSIOS, and phrases of the Code of Ordinances shall remain in full forceand effect. SJI"CTION 5, Any person found guilly Of violating this Ordinance by a court, of cornpetent Jurisdiction shall be fined a sura not to exceed two hundred collars ($200). 5:\Lega1\Cm€'���rcrdcc SECTION 6, This Ordinance providing for a penalty shall become effective fourteen (14) days from the date of' its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record�'Chronicle, the official newspaper of the City of Denton, Texas, within I0 days ofthe date of its passage, /Pp PASSED AND APPROVED this the day of j 2014. ATTEST: JENNIFER WALTERS, CITY SECRETARY IT BY: V APPROVED AS TO LEGAL FORM: A-ITABURGESS, CITY ATTORNEY 13y: Pa— ICK 1,1 131,RMA MAYOR Exhibit 2 Relevant Texas Transportation Code Definitions Sec. 541.201 (23) "Vehicle" means a device that can be used to transport or draw persons or property on a highway. The term does not include: [07y (A) a device exclusively used on stationary rails or tracks; (B) manufactured housing as that term is defined by Chapter 1201, Occupations Code. Sec. 545.424. OPERATION OF VEHICLE BY PERSON UNDER 18 YEARS OF AGE. (a) A person under 18 years of age may not operate a motor vehicle while using a wireless communications device, except in case of emergency. (a-1) A person under 18 years of age may not operate a motor vehicle: (1) after midnight and before 5 a.m. unless the operation of the vehicle is necessary for the operator to attend or participate in employment or a school -related activity or because of a medical emergency; or (2) with more than one passenger in the vehicle under 21 years of age who is not a family member. (b) A person under 17 years of age who holds a restricted motorcycle license or moped license may not operate a motorcycle or moped while using a wireless communications device, except in case of emergency. (b-1) A person under 17 years of age who holds a restricted motorcycle license or moped license, during the 12 -month period following the issuance of an original motorcycle license or moped license to the person, may not operate a motorcycle or moped after midnight and before 5 a.m. unless: (1) the person is in sight of the person's parent or guardian; or (2) the operation of the vehicle is necessary for the operator to attend or participate in employment or a school -related activity or because of a medical emergency. (c) This section does not apply to: (1) a person operating a motor vehicle while accompanied in the manner required by Section 521.222(d)(2) for the holder of an instruction permit; or (2) a person licensed by the Federal Communications Commission to operate a wireless communication device or a radio frequency device. (d) For the purposes of this section, employment includes work on a family farm by a member of the family that owns or operates the farm. (e) A peace officer may not stop a vehicle or detain the operator of a vehicle for the sole purpose of determining whether the operator of the vehicle has violated this section. (f) In this section, "wireless communication device" means a handheld or hands-free device that uses commercial mobile service, as defined by 47 U.S.C. Section 332. Sec. 545.425. USE OF WIRELESS COMMUNICATION DEVICE IN A SCHOOL CROSSING ZONE OR WHILE OPERATING A SCHOOL BUS WITH A MINOR PASSENGER; OFFENSE. (a) In this section: (1) "Hands-free device" means speakerphone capability or a telephone attachment or other piece of equipment, regardless of whether permanently installed in the motor vehicle, that allows use of the wireless communication device without use of either of the operator's hands. (2) "Wireless communication device" means a device that uses a commercial mobile service, as defined by 47 U.S.C. Section 332. 5:\Lega1\0ur Doc uments\Ordinances\16\CeilP hone U seP roh ib itedlfNotHa ndsPre e Except ionForEme rge ncyVehiciesi-35 Exempt 2.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING SECTION 18-38 OF THE CODE OF ORDINANCES RELATING TO THE USE OF WIRELESS COMMUNICATION DEVICES TO PROHIBIT THE USE OF WIRELESS COMMUNICATION DEVICES WHILE OPERATING A VEHICLE; PROVIDING A REPEALER CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY AS A CLASS C MISDEMEANOR FOR VIOLATIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Denton City Council finds that there are significant risks relating to the distracted operating of vehicles that include various aspects of the use of wireless communication devices while operating on the City's public roadways; and WHEREAS, prohibiting the use of wireless communication devices while operating a vehicle in the City of Denton, to the extent allowed by §545.425(f), Texas Transportation Code, addresses the possible hazards produced by a distracted driver as the result of. (1) sending or reading text messages or instant messages; (2) viewing or accessing internet sites; or (3) viewing or accessing other data that uses commonly recognized electronic communications protocol; and WHEREAS, this ordinance is drafted to address the City of Denton police power interests in the regulation of public safety, and appropriately excludes acts for which the City is preempted from regulating, and provides defenses to prosecution to the application of the ordinance, including allowing the use of hands-free devices, while a vehicle is stopped, and communications by operators of authorized emergency vehicles; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference as true. SECTION 2. Section 18-38 "Use of wireless communication devices while operating a vehicle" is hereby amended to read as follows: Sec. 18-38 Use of wireless communication devices while operating a vehicle. (a) In this section, a "Hands-free device" means speakerphone capability or a telephone attachment to other piece of equipment, regardless of whether permanently installed in/on the vehicle, that allows use of the wireless device without use of either of the operator's hands, except for the use of the operator's hands for the purpose of initiating or terminating a voice telephone call. (b) In this section, "Stop" or "Stopped" means to stand an occupied or unoccupied vehicle in a location other than a lane of traffic on a roadway. Page 1 S:\Legal\Our Document s\Ordinances\16\Ce IIP honeUse Prohibited Mot Ha ndsFree Except ionforEme rgencyVe hicles l-35 Exempt 2.docx (c) In this section, "vehicle" shall have the meaning set forth in Section 541.201 (23) of the Texas Transportation Code. (d) In this section, "Wireless Communication Device" has the meaning assigned in Section 545.425 (Use of Wireless Communication Device; Offense) of the Texas Transportation Code. (e) An operator of a vehicle may not use a wireless communication device for any purpose while operating a moving vehicle on any street or highway within the City of Denton, unless employing a hands-free device. (f) This ordinance does not apply to an operator of a vehicle using a wireless communication device: 1. While the vehicle is stopped; or 2. That is used as a global positioning or navigation system; or 3. An operator of an authorized emergency vehicle using a wireless communication device while acting in an official capacity; or 4. An operator who is licensed by the Federal Communications Commission operating a radio frequency device other than a wireless communication device. (g) It is an affirmative defense to prosecution of an offense under this section if a wireless communication device is used: 1. For obtaining emergency assistance to report a traffic accident, medical emergency, or serious traffic hazard, or to prevent a crime about to be committed or being committed; or 2. In the reasonable belief that a person's life or safety is in immediate danger. (h) To the extent that this section conflicts with the Texas Transportation Code Section 545.424, regarding the use of wireless communication devices while operating a vehicle by minors, or Texas Transportation Code Section 545.425, regarding the use of wireless communications devices in school zones or by the operators of school busses, this section does not apply. SECTION 3. If any section, subsection, paragraph, sentence, clause, phrase, or word in this ordinance, or application thereof to any person or circumstances is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the retraining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any invalidity. SECTION 4. Save and except as amended hereby, all the provisions, sections, subsections, paragraphs, sentences, clauses, and phrases of the Code of Ordinances shall remain in frill force and effect. Page 2 S:\Legal\Our Doc uments\Ordinances\16\Ce lip hone Use Prohibited l fNotH and sfree Exception ForEme rge ncyVe hicles l-35 Exempt 2.docx SECTION 5. Any person found guilty of violating this Ordinance by a court of competent jurisdiction shall be guilty of a Class C misdemeanor. SECTION 6. Ordinance 2014-112 shall remain in full force and effect until the effective date of this ordinance. SECTION 7. This Ordinance providing for a penalty shall become effective June 1, 2017, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record -Chronicle, the official newspaper of the City of Denton, Texas, within 10 days of the date of its passage. PASSED AND APPROVED this the day of , 2016. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r BY:'% Page 3 CHRIS WATTS, MAYOR City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: ID 16-1558, Version: 1 Legislation Text Agenda Information Sheet DEPARTMENT: City Manager's Office CM/ ACM: John Cabrales, Jr. Date: December 6, 2016 SUBJECT Consider approval of a resolution of the City of Denton, Texas, adopting the City of Denton's 2017 State Legislative Program for the 85th Texas Legislature; and providing an effective date. BACKGROUND The 85' Regular Session of the Texas Legislature begins January 10, 2017. The proposed 2017 State Legislative Program is provided as Exhibit 1, for your consideration. Our program consists of position statements regarding issues we anticipate the Texas Legislature may consider, based on previous sessions, interim reports, and discussions with our partners and stakeholders. Staff has worked with the Texas Municipal League (TML), the TML Big City group, our legislative consultants, and other cities to identify legislative issues of interest to Denton. These issues primarily relate to state initiatives that could impact city finances, land regulation, regional transportation, utility, and public safety issues. The legislative program gives city representatives the ability to react quickly to proposed legislation, and respond appropriately on behalf of the City. Each session, the Texas Legislature files a large number of city -related bills, the majority of which propose impediments to the ability of cities to govern from a local perspective. For the 84t' Regular Session of the Texas Legislature (2015), legislators filed more than 6,000 bills, and more than 1,600 were city -related. Pre- filing of bills began November 14, 2016, and already the Legislature has filed almost 700 bills (as of November 28). For the last several sessions, legislative leaders have continued to file and support bills that would impose a local revenue cap, lower or broaden the current cap on annual increases in property tax appraisals, enact costly unfunded mandates, or generally erode municipal authority to conduct local affairs. We do not anticipate the 85' Legislature to be friendly toward municipalities. Last session, bills were filed that sought to eliminate home -rule authority - a more than 100 -year constitutional authority granted to cities. According to TML, "home rule is the right of citizens at the grassroots level to manage their own affairs with minimum interference from the state. Home rule assumes that governmental problems should be solved at the lowest possible level, closest to the people. As Denton continues to grow, our legislative exposure continues to increase with potentially greater negative impacts to our budget, and more importantly, on the elected governing body's authority to make decisions and ability to deliver services in the best interest of our citizens. During the 84th Texas Legislature Interim Session, numerous "interim charges" were given to the legislature by City of Denton Page 1 of 5 Printed on 12/2/2016 povveied by I_egivt9i IN File #: ID 16-1558, Version: 1 the Speaker of the House and the Lieutenant Governor to study and report back to the House and Senate members. Typically, these studies identify possible legislative actions and often result in the filing of bills in the next regular legislative session. Several of these interim charges have the potential of impacting the City of Denton, including a report on revenue caps from the Select Committee on Property Tax Reform. In fact, as we enter the 85' legislative session, one of the biggest concerns for cities is that Lt. Governor Dan Patrick has consistently stated publicly that he intends to pass legislation that would impose revenue caps, limiting a municipality's ability to raise adequate revenue to finance essential services for its citizens. In addition, there is always concern the legislature will pass unfunded mandates to local governments as they look for ways to move legislation without having a negative financial impact to the state. Proposed Legislative Program Revisions Below are the proposed additions and deletions, as well as a page -by -page overview of revisions that have been made from the 2015 Legislative Program to the 2017 Legislative Program. Of note, the Parks and Recreation Department has requested consideration of a legislative initiative that would enhance funding tools available to the City Council in financing upgrades to local sports facilities or fields, which host regional and statewide sports tournaments. This proposal is fully outlined in Exhibit 2. Proposed Additions for Consideration: • Seek introduction and passage of legislation that would amend the Tax Code by adding the City of Denton to the bracketed list of municipalities authorized to utilize Hotel Occupancy Tax (HOT) funds for enhancement and upgrading of city -owned and existing sports facilities or fields, which provide significant economic benefit to the community. (p. 12; Details in Exhibit 2 and 3). • Oppose legislation that would erode local control of existing authority and regulations of gas well operations, as articulated in HB 40 (84' Legislature). (p. 13; replacing the 2015 statement of support for retaining municipal authority over oil and gas regulation). • Oppose legislation that will restrict MOUs from building transmission infrastructure outside their service area. (p. 13) • Support legislation that would protect the ability of the City to be adequately compensated for any use of its rights-of-way. (p. 13) • Oppose legislation that would erode the City's authority over the management and control of its rights- of-way. (p. 14) • Oppose any legislation that would erode the City's authority to require utility companies to pay the costs of relocating their facilities in a time manner as required by current law. (p. 14) • Support legislation that would include solid waste collection vehicles, as well as other municipal utility vehicles, into the current Texas Move Over Law (Texas Transportation Code 545.157). (p. 14) • Support legislation that would clarify regulations related to open carry in municipally owned facilities that are contractually operated by non-profit or private entities. (p.15) City of Denton Page 2 of 5 Printed on 12/2/2016 povveied by I_egist9i I;, File #: ID 16-1558, Version: 1 • Support legislation that would clarify where open carry is prohibited in a municipally owned court office building. (p.15) • Support legislation that would provide a statewide ban on the use of hand-held devices while operating a vehicle, provided more stringent city ordinances are not preempted. (p. 15) • Oppose legislation that would increase state regulation of local ballot language. (p. 15) Proposed Deletions for Consideration: • Support legislation that clarifies TCEQ's sanitary sewer overflow reporting standards. This item was achieved in the 84' Legislative Session. • Oppose legislation that would allow open -carry firearms in municipally -owned facilities. The State Legislature passed HB 910 permitting open -carry in municipally -owned facilities. • "Support legislation that would clarify that the state's vested rights law does not apply to subsurface mineral development as it relates to permits issued by the municipality for oil and gas development activities." HB 40 was enacted by the legislature limiting municipalities' regulatory authority related to oil and gas operations. This statement has been deleted from the Priority Legislative Agenda, as has the accompanying white paper. • Support the preservation of municipal authority to reduce the effects of oil and gas development on city residents. This item has been replaced with the statement regarding municipal authority following HB 40 enactment. Page -by -Page Revisions Page 3, City of Denton Council Members page has been updated with the new council headshots. The Council district map has been updated. Page 4, City of Denton Management contact information has been updated to reflect staff transitions. Page 6, the General Legislative Policy page has revised formatting, order of information, and some redundancy has been eliminated. Page 7, Priority Legislative Agenda, updated revenue cap statement to more specifically reflect expected legislation. Eliminated position statement related to oil and gas development and vested rights (see Proposed Deletions for Consideration). HB 40 was enacted by the legislature limiting municipalities' regulatory authority related to oil and gas operations. This position statement is thus unnecessary for the 85' Legislature. The wording on the DME statements was revised minimally, but the content remains the same. Page 8, Preserve Local Budgeting Authority and Revenue Sources, slightly updated language with no substantive changes. City of Denton Page 3 of 5 Printed on 12/2/2016 povveied by I_egist9i I;, File #: ID 16-1558, Version: 1 Pages 10-11, Preserve Community Ownership and Operation of Denton Municipal Electric, this headline was updated. Only minor revisions to the language, with updates to reflect recent changes to the energy portfolio and the current state legislative environment. Pages 12-13, General Legislative Agenda, Revenue and Taxation includes HOT Funds legislative proposal, but otherwise no substantive changes to the language. Land Use Resources statements updated by Legal to be more comprehensive, but content remains the same. Moved the statement regarding relocation of utility company facilities under Utilities. Refer to Proposed Additions and Proposed Deletions for Consideration above for additional information. Pages 13-16, General Legislative Agenda continued, two new position statements added by legal for consideration regarding public rights-of-way; one new position added regarding public safety Association Business Leave. Otherwise has only minor revisions to language without substantive changes. Refer to Proposed Additions and Proposed Deletions for Consideration above for additional information. PRIOR ACTION/REVIEW (Council, Boards, Commissions) December 16, 2014 - The City Council considered and approved Resolution 2014-044 adopting the City of Denton's 2015 Legislative Program for the 84' Texas Legislature. FISCAL INFORMATION N/A STRATEGIC PLAN RELATIONSHIP The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Organizational Excellence Related Goal: 1.6 Collaborate with local, regional, state, and federal partners EXHIBITS 1. Proposed 2017 State Legislative Program 2. HOT Fund Legislative Proposal White Paper 3. Tax Code 351.101 in reference to the HOT Fund Legislative Proposal 4. Resolution for consideration to approve the 2017 State Legislative Program Respectfully submitted: City of Denton Page 4 of 5 Printed on 12/2/2016 povveied by I_egist9i I;, File M ID 16-1558, Version: 1 Lindsey N. Baker Intergovernmental Relations/Public Information Officer City of Denton Page 5 of 5 Printed on 12/2/2016 povveied by I_egist9i I;, EXHIBIT 1 City of Denton 2017 State Legislative Agenda 85th Texas Legislature EXHIBIT 1 TABLE OF CONTENTS I. City of Denton Mayor and Council Contact Information 3 II. City of Denton City Management Contact Information 4 III. 2017 State Legislative Program Adopting Resolution 5 IV. General Legislative Policy on V. Priority Legislative Agenda 7 VI. Discussion of Priority Legislative Issues 8 VII. General Legislative Agenda 12 Page 2 Sara Bagheri At -Large, Place 6 Sara.Bagheri@cityofdenton.com Joey Hawkins District 4 Joey.Hawkins@cityofdenton.com City of Denton City Council Members Mayor Chris Watts Chris.Watts@cityofdenton.com EXHIBIT 1 Dalton Gregory At -Large, Place 5 Dalton.Gregory@cityofdenton.com Kathleen Wazny District 3 Kathleen.Wazny@cityofdenton.com Keely Briggs District 2 Mayor Pro Tem Kevin Roden District 1 Kevin. Roden@cityofdenton.com Keely.Briggs@cityofdenton.com Page 3 City of Denton City Management (940) 349-8200 215 E. McKinney Denton, Texas 76201 www.cityofdenton.com Todd Hileman CitManager o/ (940) 349-8307 Todd.Hileman@cityofdenton.com Howard Martin Assistant City Manager Utilities o/ (940) 349-8232 Howard.Martin@cityofdenton.com John Cabrales, Jr. Assistant City Manager Operations o/ (940) 349-8509 John.Cabrales@cityofdenton.com Lindsey Baker Intergovernmental Relations/ Public Information Officer o/940 349-8234 c/ 817 994-7133 EXHIBIT 1 Anita Burgess Cit Attorney o/ (940) 349-8336 Anita.Burgess@cityofdenton.com Jon Fortune Assistant City Manager Development Services o/ (940349-8535 Jon.Fortune@cityofdenton.com Bryan Langley Assistant City Manager Finance & Administration o/ (940) 349-8224 Bryan.Langley@cityofdenton.com Alison Ream Administrative Services Manager o/ (940) 349-8310 Alison.Ream@cityofdenton.com Page 4 EXHIBIT 1 RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS, ADOPTING THE CITY OF DENTON' S 2017 STATE LEGISLATIVE PROGRAM FOR THE 85" TEXAS LEGISLATURE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the 85th Texas Legislature will commence in January 2017; and WHEREAS, appraisal caps, revenue caps, budgeting authority, revenue sources, and many other legislative issues affecting local government will be considered; and WHEREAS, the City of Denton desires to adopt its 2017 State Legislative Program for the 85th Texas Legislature; NOW, THERFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the City of Denton's 2017 State Legislative Program for the 85th Texas Legislature is adopted as set forth herein and made a part of this resolution for all purposes. SECTION 2. That the Mayor and City Council, City Manager, and the City Attorney, or their designees, shall communicate the items included in the 2017 State Legislative Program to members of the Texas Legislature. SECTION 3. The City Manager, or his designee, is directed to draft appropriate legislation, seek a sponsor, and actively pursue passage of such legislation by providing testimony from the Mayor, City Council, and City Staff and through other appropriate means. PASSED AND APPROVED this the day of December 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Page 5 EXHIBIT 1 GENERAL LEGISLATIVE POLICY STATEMENT OF PURPOSE The fundamental goal of the City's legislative activities is to produce positive outcomes for the citizens of Denton as a whole. Numerous proposals in the Texas Legislature have the potential to seriously impact the ability of the City to carry out its overall mission. By taking a proactive role in monitoring and commenting on proposals in the Texas Legislature, we are working to ensure that the citizens of Denton can continue to enjoy the quality of life they have come to expect and deserve. STATEMENT OF PRESERVATION As a general policy, the City will oppose any legislation viewed as detrimental to the City's strategic goals or would limit home rule authority; is contrary to the health, safety, and welfare of its citizens; mandates increased costs or loss of revenues; or would diminish the fundamental authority of the City. The City will oppose any initiatives that seek to erode municipal authority or that otherwise have a negative impact on municipal operations, including but not limited to legislation that would: • Erode home rule authority; • Detrimentally affect the City's financial position by reducing revenue streams or increasing costs through unfunded mandates or other means; • Erode the authority of Texas cities to manage and control their rights-of-way or other public property, and to be reasonably compensated for such use; • Erode current municipal economic development authority; • Erode the current authority of Texas cities to enact a system and set the level of impact fees for new development; and • Further restrict cities' ability to adopt or amend zoning regulations or annex property in a city's extraterritorial jurisdiction. STATEMENT OF SUPPORT The City supports any legislation that would advance the City's strategic goals and interests; improve the health, safety, and welfare of its citizens; and responsibly increase revenues. FORM COALITIONS The City will form strategic partnerships with other cities, political subdivisions, private sector and non-profit entities, and other appropriate stakeholders that share common goals with the City of Denton. Additionally, the City will work in coordination with organizations such as the Texas Municipal League when their adopted positions are in line with the legislative objectives and goals of the City. The formation of strategic partnerships and coordinated efforts is intended to provide the City with a stronger presence in the legislative process. Page 6 EXHIBIT 1 PRIORITY LEGISLATIVE AGENDA PRIORITY LEGISLATIVE ISSUES 1. Preserve Local Budgeting Authority and Revenue Sources Oppose legislation that would impose a revenue cap, lower the rollback rate, or otherwise restrict the ability of the City's elected governing body to set its own budget or raise the necessary revenue to provide services to City residents and businesses. 2. Preserve Local Control of Land Use Planning and Zoning • Support legislation that preserves local land use authority. • Oppose legislation that would erode local land use authority by restricting the ability of cities to zone or rezone properties. 3. Preserve Community Ownership and Operation of Denton Municipal Electric Oppose legislation that would deregulate Municipally Owned Utilities or amend their governing structure. Support legislation that would preserve Municipally Owned Utilities' governing structure and ability to maintain a diversified energy portfolio. Page 7 EXHIBIT 1 DISCUSSION OF PRIORITY LEGISLATIVE ISSUES Preserve Local Budgeting Authority and Revenue Sources The City of Denton will oppose legislation that would impose a revenue cap, lower the rollback rate, or otherwise restrict the ability of the City's elected governing body to set its own budget or raise the necessary revenue to provide services to City residents and businesses. ISSUE During the last several Texas Legislative Sessions, proposals have been set forth that would severely limit the ability of cities to set their budgets or raise adequate revenues to carry out their fundamental functions. For example, numerous proposals to "cap" local revenues and property appraisals have been filed in the Texas Legislature. Every elected official in the City of Denton is sensitive to the tax burden our citizens and businesses pay, and is accountable to the local electorate for the decisions they make. We are also mindful, however, that it takes a great deal of flexibility with our local budget to meet the unique demands for services while at the same time preserving the high standards our community expects. PROBLEM Revenue and appraisal caps undermine the ability of local governments to meet the individual needs and circumstances of their cities. Additionally, one -size -fits -all "caps" violate the fundamental principle of local control. Citizens and businesses have numerous opportunities to provide input to the City of Denton's budget and tax rate setting processes. Most importantly, the citizens of our City get to voice their approval or disapproval of our budgeting performance and tax rates every time we hold a municipal election. Unfortunately, extremely low appraisal and revenue caps can produce numerous problems. For instance, appraisal caps shift the inequitable tax burden to businesses and new homeowners. This inequitable shift can produce serious long-term negative consequences for the local economy. Revenue caps, on the other hand, require the City to cut services, delay critical road and facility maintenance, delay or eliminate public safety equipment and facility upgrades, or take on more debt to fund local projects and services. These types of "caps" are particularly harmful to a city like Denton, because it prevents the City from adequately dealing with the infrastructure needs brought on by tremendous population growth. It is inappropriate for the State of Texas to expect local governments to provide numerous public services with no funding from the State, while at the same time unduly restricting the ability of local governments to raise the necessary levels of revenue to provide the required services. SOLUTION If revenue caps are going to be applied to local governments, they should be applied uniformly to the state budget, as well. In short, the same rules should apply to all levels of government. The State could also supplement local government funding as other states that impose revenue caps have done. Page 8 EXHIBIT 1 Preserve Local Control of Land Use Planning and Zoning The City ofDenton will support legislation thatpreserves local land use authority and oppose legislation that will erode local land use authority by restricting the ability of cities to zone or rezone properties. ISSUE Over the past few legislative sessions various proposals have been introduced to restrict the ability of cities to enforce their traditional land use controls. Specifically, legislation that requires cities to compensate landowners any time a zoning classification change is effected (often referred to as a "downzoning"), has come dangerously close to becoming the law. Under these proposals, cities would have to compensate landowners, even if the proposed zoning changes did not interfere with the current or intended use of the property. In addition to compensating landowners for zoning changes, proposals have been considered that would require compensation for numerous types of city regulations. For example, previously proposed legislation would have required cities to compensate landowners if they restricted the ability of patrons to smoke on premises or limited the time of day that alcohol could be served. All of these types of local restrictions have been debated under the theory of "regulatory takings." Additional legislative proposals would have prevented cities from ever changing the zoning classification of a property if any type of basic permit or site plan has been filed with any governmental entity. Since 1999 the Texas Legislature has continually expanded the "permit vesting" statute to include different aspects of city land use authority. The expansion of the "permit vesting" statute is beginning to interfere with the ability of cities to impose orderly, efficient, and comprehensive land use and development plans for their communities. PROBLEM Restricting the ability of cities to properly regulate land uses ultimately prevents them from being able to respond to the needs and demands of their citizens. For example, land use controls are used to keep undesirable businesses from locating in neighborhood -type settings. Additionally, one of the main reasons people live in cities is to have the protection of a regulated land use system. In short, when a home or business locates in a particular city they do so, in part, to ensure that an incompatible structure will not be placed next to their property. SOLUTION The ability of most cities to manage growth and development is based on the Texas constitution's home rule provisions. Cities are allowed to amend charters and pass ordinances as long as they do not conflict with the constitution or general laws enacted by the state legislature. This means that each home rule city can make its own decisions about what planning tools and techniques are most appropriate to its situation unless those tools have been proscribed by the Texas legislature. The State should be very cautious in proscribing solutions that are only applicable to individual situations because of the vast differences between cities in this large state. Page 9 EXHIBIT 1 Preserve Community Ownership and Operation of Denton Municipal Electric The City of Denton will onnose legislation that deregulates Municipally Owned Utilities or amends their governance authority. ISSUE Recent State Legislative sessions saw bills introduced regarding partial deregulation for specific Municipally Owned Utilities (MOU). Ultimately, none of the bills passed into law. However, this type of legislative pressure toward specific MOUs can have a widespread, negative impact and unforeseen consequences on MOUs throughout the state. Municipalities owning an electric utility, such as in Denton's case, retain local regulatory authority through its main governing body, the City Council. It is the role and choice of these City Councils to determine each MOUs energy future by exercising its authority whether to opt in to the deregulated market or to retain its local authority. In April, 2001, the Denton City Council took a wait-and-see approach and exercised its authority choosing not to opt in to deregulation. To date, there has been no viable reason for Denton to enter into the deregulated market. Requiring MOUs to participate in the retail deregulated market essentially eliminates the authority of the governing bodies of MOUs and forces them to operate under the same guidelines as investor owned utilities. Historically, DME electric rates have remained stable and competitively priced. Mandating that an MOU participate in the deregulated market not only increases its financial burden, but also ensures that the increased costs are passed through to the DME ratepayers, thus placing DME at a competitive disadvantage in the electric market. In addition, should an MOU such as that owned by the citizens of Denton be required to opt in, it mitigates the strategic measures that the local citizens have enacted such as requiring more renewable resources and higher reliability from their MOU. PROBLEM Austin Energy's (AE) rate issues have raised the deregulation issue and it is anticipated that legislation will be proposed to deregulate all or a portion of AE. The opt -in discussions concerning AE may be expanded to include all MOUs. For Denton to enter the deregulated market, the additional operating expense would be substantial. The current and additional operating expenses could be spread across a smaller customer base should customers exercise their "power to choose." A reduction in DME's customer base would ensure that its remaining customers would have to absorb the increased costs in the form of higher electric rates. SOLUTION MOUs must preserve the local authority and governing structure to provide affordable electric service and energy portfolio diversity to its ratepayers. Page 10 EXHIBIT 1 Preserve Community Ownership and Operation of Denton Municipal Electric The City of Denton will sugj2ort legislation that preserves the governance structure and ability of Municipally Owned Utilities to maintain a diversified energy portfolio. ISSUE The City of Denton is a nationally recognized environmental leader because of its continued diversification of DME's energy portfolio. At no additional cost to its ratepayers, DME provides more wind energy per capita than any other city in the United States and offers one of the largest rebates for the installation of renewable energy generation in Texas. The City of Denton and DME recognize the importance of reducing the overall dependence on fossil fuel generation, while, at the same time being fiscally responsible to its citizens and ratepayers. As part of an overall goal to increase the renewable portfolio while protecting rates and reliability, the City Council approved a plan to be 70% renewable by 2019. The plan is projected to save Denton's ratepayers $500 million over the next 20 years, cut emissions by over 70%, and reduce natural gas usage by 37%. PROBLEM Any legislation that eliminates MOUS' authority to determine and maintain a diversified energy portfolio is fiscally irresponsible to the ratepayers. While some areas are more suited for specific types of renewable generation, not all utility scale generation is appropriate in all locations. For example, the cost of constructing and operating solar energy generation can be prohibitive. While solar costs have declined over recent years, the capital costs, scarcity of land, lack of electric infrastructure, and diminished levels of generation output, as compared to conventional generation, can substantially drive the cost per megawatt -hour of solar energy production upward. It is unrealistic and cost prohibitive for the State of Texas to expect MOUs to provide economically priced electricity to its citizens, while requiring a diversified energy portfolio that includes predetermined amounts of specific renewable sources without funding from the State. SOLUTION MOUs must preserve the community authority and governing structure to provide affordable electric service to its ratepayers. If energy portfolio diversity becomes a requirement, MOUs should have the option to determine which renewable generation source is most suited to each MOU's service area. If a generation requirement is mandated, it should be applied uniformly to investor owned utilities, cooperatives, and MOUs. In addition, the State should supplement local government funding of the construction of utility scale renewable generation to offset the impact to the citizens of Denton. Page 11 EXHIBIT 1 GENERAL LEGISLATIVE AGENDA Revenue and Taxation • Support legislation that would improve the appraisal process to ensure equal and uniform application of property taxes. • Oppose legislation that would restrict the ability of cities to impose and collect municipal impact fees from new developments. Seek introduction and passage of legislation that would amend the Tax Code by adding the City of Denton to the bracketed list of municipalities authorized to utilize Hotel Occupancy Tax (HOT) funds for enhancement and upgrading of city -owned and existing sports facilities or fields, which provide significant economic benefit to the community. Land Use and Resources • Support legislation that would provide municipalities the authority to regulate and enforce building codes, and property maintenance codes within the extraterritorial jurisdiction (ETJ). • Oppose legislation that would reduce a municipality's authority and discretion to approve the creation of a special district within a city's incorporated area or ETJ, including the expansion of a district's boundaries or powers. • Oppose legislation that would erode city annexation authority, including but not limited to the elimination or restriction of the use of limited purpose annexations or the addition of election or consent requirements. • Oppose legislation that would reduce or eliminate development fees, exactions (or impact fees), or building permits. • Oppose legislation that would restrict cities' ability to adopt or amend zoning regulations or the applicability of those regulations to existing projects, including but not limited to the creation of any property rights or vesting in a zoning and use classification or any restrictions regarding downzoning. • Support legislation that would allow local governments to enact ordinances relating to health and safety regulations as applied to gas drilling and production activities and to reduce the effects of oil and gas development on city residents. • Support legislation that would allow cities to enact ordinances regulating zoning and development free from exception/exemption, including but not limited to imposing limitations on the availability of the Freeze Law under Chapter 245 of the Texas Local Government Code. Page 12 EXHIBIT 1 • Oppose legislation that would erode local control of existing authority and regulations of gas well operations, as articulated in HB 40 (84th Legislature). Utilities • Support legislation that preserves Congestion Revenue Rights (PCRRs) assigned to municipal utilities in exchange for supporting the nodal market construct. • Support legislation that preserves the Community Regulation of Municipal Electric Utilities. • Support legislation that protects the ability of governmental entities to maintain confidentiality of certain critical documents and activities. • Support legislation that requires market participants and Retail Electric Providers (REPs) to be properly capitalized before they are allowed to participate in the ERCOT market. • Support legislation that requires proper credit requirements for the startup of Retail Electric Providers (REPs). • Oppose legislation that requires municipal electric utilities to pay uplifted charges for those ERCOT Retail Electric Providers (REP) that declare bankruptcy or for any other ERCOT short pay charges. • Oppose legislation that would extend electric subsidies provided by municipal utilities to four-year state universities, upper level institutions, Texas state technical colleges, or other special groups. • Oppose any legislation that will increase ERCOT Fees. • Oppose legislation that will restrict MOUs from building transmission infrastructure outside their service area. • Oppose legislation that provides any further exemptions to the drainage fee. • Oppose legislation that would impose state "tap fees" or any other type of state charge on municipal water systems. • Support legislation that would raise the exemption amounts for public works projects in the Texas Engineering Practices Act. • Oppose any legislation that would limit or prohibit a city's ability to make and sell compost/mulch products inside and outside of the city limits. • Support legislation that would protect the ability of the City to be adequately compensated for any use of its rights-of-way. Page 13 EXHIBIT 1 • Oppose legislation that would erode the City's authority over the management and control of its rights-of-way. • Oppose any legislation that would erode the City's authority to require utility companies to pay the costs of relocating their facilities in a time manner as required by current law. • Support legislation that would address the failure of utility companies to relocate their facilities in a timely manner as required by current law. Transportation • Support legislation that would include solid waste collection vehicles, as well as other municipal utility vehicles, into the current Texas Move Over Law (Texas Transportation Code 545.157). • Support legislation that would retain limited authority for TxDOT to enter into public-private partnerships on specific projects. • Support legislation that would identify additional transportation revenue to enhance statewide and regional ability to maintain and improve transportation infrastructure, and that would provide metropolitan areas with flexible solutions to solve problems and ensure that areas contributing to transportation solutions will not be penalized with a loss of traditional transportation funding. • Support legislation that would constitutionally protect all revenues in Fund 6 and discontinue the diversion of transportation revenues to non -transportation purposes, and appropriate all revenues from highway user fees and taxes to fund transportation. • Support legislation that would index the motor fuels tax to reduce the decline in purchase power of transportation funding. • Support legislation that would increase vehicle registration fees to address transportation funding needs. • Support legislation that would enforce existing regulations and penalties of driving requirements (e.g. vehicle registrations, driver licenses, and vehicle insurance). • Oppose legislation that would remove or negate the strictly voluntary nature of highway turnbacks. • Oppose legislation that would create a Regional Mobility Authority in the four county area of North Central Texas including Dallas, Denton, Collin and Tarrant Counties for the purpose of administering funds received through revenue sharing agreements. • Support legislation that directly benefits Denton County Transportation Authority, if such proposals do not adversely affect the City's interest. Page 14 EXHIBIT 1 Public Safety • Support legislation that would require 100 percent reimbursement of costs incurred by cities for services provided during emergency evacuation and shelter operations resulting from an emergency evacuation ordered by the governor or the governor's Division of Emergency Management. • Oppose legislation that further restricts a city's ability to implement a photographic red light enforcement system to use cameras at traffic lights and impose a civil penalty for running the light. • Support legislation that would clarify regulations related to open carry in municipally owned facilities that are contractually operated by non-profit or private entities. • Support legislation that would clarify where open carry is prohibited in a municipally owned court office building. • Support legislation that would provide a statewide ban on the use of hand-held devices while operating a vehicle, provided more stringent city ordinances are not preempted. • Oppose legislation that would restrict a city's authority to use license plate readers by law enforcement agencies. • Oppose legislation that would prohibit use of Association Business Leave by authorized public safety Association members, as provided in existing meet and confer agreements. General Government • Oppose state preemption of municipal authority in the regulation of payday lenders, unless proposed legislation provides adequate protections from aggressive and harmful lending practices. • Oppose legislation that would increase state regulation of local ballot language. • Support legislation that heightens environmental standards, improves air and water quality, and protects the health, safety, and welfare of Texans. • Support legislation that would exempt cities from any federal collective bargaining legislation that may become law in the future. • Support legislation amending Section 11.1825 of the Tax Code by adding that community housing development organizations (CHDOs) must receive an exemption from taxation from any affected municipality prior to receiving a tax exempt status from the local property appraisal district. • Support legislation that would provide additional state funding for local and regional initiatives related to reducing the number of homeless persons and those at risk of homelessness in our community. Page 15 EXHIBIT 1 • Support legislation that would provide state funding to assist local non -profits in providing adequate and coordinated mental health services throughout Denton County. • Support legislation that would provide funding for Early Childhood Programs, including full-day service pre -kindergarten programs. • Support legislation that directly benefits UNT and/or TWU, if such proposals do not adversely affect the City's interest. • Support legislation that directly benefits Denton ISD, if such proposals do not adversely affect the City's interest. • Oppose legislation that would further reduce funding to Denton ISD, if such proposals do not adversely affect the City's interest. Page 16 EXHIBIT 2 HOT Funds Legislative Initiative White Paper Parks and Recreation has requested the City of Denton seek introduction and passage of legislation that would amend Tax Code Sec. 35 1. 101 (a)7 by adding the City of Denton to the list of municipalities authorized to utilize Hotel Occupancy Tax (HOT) funds for enhancement and upgrading of city -owned and existing sports facilities or fields, which provide significant economic benefit to the community. Specifically, the purpose of HOT funds is to "promote tourism and the convention and hotel industry." The athletic tournaments hosted by the City of Denton Parks and Recreation Department generate revenue for the City's General Fund, the Recreation Fund, and co-sponsored associations. More importantly, however, the tournaments to -date in 2016 alone provided an estimated economic impact to local businesses, such as hotels, restaurants, and retailers, of more than $1 million. In addition, the tournaments have generated more than 800 room nights for Denton hotels and brought in an estimated 28,083 spectators. The economic impact estimates are vetted through the Convention and Visitor's Bureau. For calendar year 2017 the number of available tournament weekends has been reduced from 30 to 13 due to a lack of Park Maintenance personnel that is needed to maintain fields for tournaments and the overall cost of maintaining the fields. Additional tournament staff was requested for the 2016-2017 Budget, but funding was not approved. The proposed legislative initiative would allow the City Council an innovative funding mechanism to allocate existing HOT funds to the maintenance of Parks and Recreation existing sports facilities or fields in order to continue hosting, at previous levels, the athletic tournaments that have supported the local tourism industry and had such a positive economic impact on the community. If the legislation passes, it will provide the City Council the statutory authority to allocate HOT funds to the maintenance of existing City -owned sports facilities or fields for the specific purpose of hosting athletic tournaments should they so choose. There is a precedent of municipalities gaining statutory authority to access HOT funds for the purposes stated herein. The statute, Tax Code Sec. 351.101 (a)7, was last amended in the 84' Legislature to include the City of San Marcos ((x) has a population of at least 40, 000 and the San Marcos River flows through the municipality,) by House Bill 3615 (Isaac). There were other inclusions, but this is the most relevant to Denton's current interests. It was referred to the House Ways and Means Committee, recommended for the Local and Consent Calendar, and passed on Local 144/0. The bill was sent to the Senate Committee on Natural Resources and Economic Development, then placed on Local/Uncontested Calendar as substituted 31/0. The bill was sent to the Governor's office following a contentious conference committee and final passage by the House (118/20) and Senate (29/2). The statute was also amended by HB 3772, but this amendment is less relevant for our purposes than HB 3615. Current statutory authority extends only to baseball, softball, soccer, and flag football sports facilities or fields. There may he an interest in expanding the statute to expand this scope to include football, tennis, rugby, and lacrosse. This would allow greater flexibility in the types of tournaments the City continues to host while keeping up with the attendant maintenance needs. Intergovernmental Relations staff would, if directed by the City Council as part of the legislative program, seek introduction and passage of legislation for the 85th Legislative Session. This would include approaching a member of the Denton County delegation and requesting he/she sponsor a proposed bill, attending and testifying in support of the legislation at a committee hearing to which it could be referred, and educating other members of our delegation, relevant committee members, and other legislators and stakeholders so they are aware of and supportive of the proposed bill. The intent would be to have the legislation go on the local and consent calendars as a "bracketed bill", such that it would not impact other communities and only has a local impact. EXHIBIT 3 SUBCHAPTER B. USE AND ALLOCATION OF REVENUE Sec. 351.101. USE OF TAX REVENUE. (a) Revenue from the municipal hotel occupancy tax may be used only to promote tourism and the convention and hotel industry, and that use is limited to the following: (7 ) subject to Section 351.1076, the promotion of tourism by the enhancement and upgrading of existing sports facilities or fields, including facilities or fields for baseball, softball, soccer, and flag football, if: (A) the municipality owns the facilities or fields; (B) the municipality: (i) has a population of 80,000 or more and is located in a county that has a population of 350,000 or less; (ii) has a population of at least 75,000 but not more than 95,000 and is located in a county that has a population of less than 200,000 but more than 160,000; (iii) has a population of at least 36,000 but not more than 39,000 and is located in a county that has a population of 100,000 or less that is not adjacent to a county with a population of more than two million; (iv) has a population of at least 13,000 but less than 39,000 and is located in a county that has a population of at least 200,000; (v) has a population of at least 70,000 but less than 90,000 and no part of which is located in a county with a population greater than 150,000; (vi) is located in a county that: (a) is adjacent to the Texas -Mexico border; (b) has a population of at least 500,000; and (c) does not have a municipality with a population greater than 500,000; (vii) has a population of at least 25,000 but not more than 26,000 and is located in a county that has a population of 90,000 or less; or (viii) is located in a county that has a population of not more than 300,000 and in which a component university of the University of Houston System is located; and (C) the sports facilities and fields have been used, in the preceding calendar year, a combined total of more than 10 times for district, state, regional, or national sports tournaments; RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS, ADOPTING THE CITY OF DENTON'S 2017 STATE LEGISLATIVE PROGRAM FOR THE 85" TEXAS LEGISLATURE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the 85th Texas Legislature will commence in January 2017; and WHEREAS, appraisal caps, revenue caps, budgeting authority, revenue sources, and many other legislative issues affecting local government will be considered; and WHEREAS, the City of Denton desires to adopt its 2017 State Legislative Program for the 85th Texas Legislature; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The City of Denton's 2017 State Legislative Program for the 85th Texas Legislature is adopted as set forth herein and made a part of this resolution for all purposes. SECTION 2. The Mayor and City Council, City Manager, and the City Attorney, or their designees, shall communicate the items included in the 2017 State Legislative Program to members of the Texas Legislature. SECTION 3. The City Manager, or his designee, is directed to draft appropriate legislation, seek a sponsor, and actively pursue passage of such legislation by providing testimony from the Mayor, City Council, and City Staff and through other appropriate means. PASSED AND APPROVED this the day of , 2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: City Hall City of Denton 215 E. McKinney St. - Denton, Texas 76201 www.cityofdenton.com , DENTON File #: Z16 -0007a, Version: 1 Legislation Text AGENDA INFORMATION SHEET DEPARTMENT: Department of Development Services ACM: Jon Fortune DATE: December 6, 2016 SUBJECT Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, amending Subchapter 35.7.5, the Fry Street Overlay District, to create a new subarea and development standards for a mixed use development on approximately 1.75 acres of land, generally located north of Hickory Street, south of Oak Street, approximately 200 feet east of Avenue B and approximately 125 feet west of Fry Street, in the City of Denton, Denton County, Texas; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing a severability clause and an effective date. The Planning and Zoning Commission recommends denial (4-1). A supermajority vote by Council is required for approval. BACKGROUND: On January 27, 2016, the Planning and Zoning Commission with a 6-1 vote recommended denial of previous application Z15-0029. This application was scheduled for City Council to consider three times, but was eventually withdrawn by the applicant after two requests for continuance. On April 8, 2016 the applicant resubmitted a new application Z16-0007. The only difference between the previously (withdrawn) application and the current application is the applicant has acquired 36 additional parking spaces off site for the project. Specifically, the applicant is requesting an amendment to Subchapter 35.7.5, Fry Street Overlay District that would create a new subarea, subarea C, within the Fry Street Overlay District on approximately 1.75 acres. The entire Fry Street Overlay District is approximately 12.42 acres. The proposed subarea C would accommodate a five -story mixed use development. Based on the information provided by the applicant, the project would consist of: • Student living apartment (111,337 square feet) where individual bedrooms are leased to students; • A total of 83 dwelling units (9 two-bedroom units, 14 three-bedroom units, and 60 four-bedroom units); • A total of 300 bedrooms; • A maximum building height of 62.05 feet; • A parking garage with 217 spaces; • A maximum parking garage height of 69.2 feet; • Retail (10,766 square feet) on the ground floor along Hickory Street; • Restaurant (1,660 square feet) on the ground floor along Hickory Street; • A total of 5 surface parking spaces on site; and • A total of 36 surface parking spaces off site. City of Denton Page 1 of 8 Printed on 12/2/2016 povveied by I_egivt9i IN File #: Z16 -0007a, Version: 1 The Fry Street Overlay District is comprised of two subareas, A and B. Subarea A is the original area of the District and subarea B was created in 2010 to accommodate the density and height of the U Center at Fry Street development. The subject site is located in Subarea A and to accommodate the height and parking requirements of the proposed mixed use development the applicant is requesting an amendment to the Overlay District to create a new subarea C with specific development standards that are different from subarea A. These standards comprise: • Increase the maximum building height; • Increase the maximum parking garage height; • Establish the proposed density; • Reduce the required parking spaces for units with 2 or more bedrooms; • Remove the standard for calculating parking spaces using restaurant seats; • Increase the building coverage for residential uses; • Increase the building coverage for mixed uses that include residences; • Reduce the minimum landscape area; and • Reduce the minimum rear yard setback for mixed uses that include residences. These standards are more fully discussed under Considerations. SITE DATA: The proposed development is comprised of eight parcels totaling 1.75 acres with approximately 220 feet of frontage on W. Oak Street and approximately 280 feet of frontage on W. Hickory Street. The subject site is approximately 200 feet east of Avenue B and approximately 125 feet west of Fry Street. USE OF PROPERTY UNDER CURRENT ZONING: The proposed development is located in the Fry Street Overlay District, subarea A, which has a base zoning district of Downtown Commercial -General (DC -G) District, one of four districts that comprise the Downtown University Core. The purpose of the Downtown University Core zoning districts is to encourage mixed use developments and pedestrian friendly places. Within the Downtown University Core zoning districts, are several Special Purpose Overlay Districts where "specific lands and structures, by virtue of their type or location, have characteristics which are distinct from lands and structures outside such special districts" (DDC 35.7.1). Special Purpose Overlay Districts located in the Downtown University Core include the following districts: • Fry Street Overlay District; • West Oak Area Historic District; and • Oak Hickory Historic District. The Fry Street Overlay District's purpose is "to promote the public peace, safety, cleanliness, and general welfare for community members and patrons of the Fry Street District, by providing for standards on off-street and remote parking, the location of solid waste containers, and the regulation of signs, setbacks, and residential and commercial density" (DDC 35.7.5.2). Multi -family residential uses are permitted in the Fry Street Overlay District however, the density and height of the buildings is further restricted by the Overlay District. SURROUNDING ZONING AND LAND USES: City of Denton Page 2 of 8 Printed on 12/2/2016 povveied by I_egist9i I;, File #: Z16 -0007a, Version: North: Property to the north across West Oak Street is located in a Downtown Residential 2 (DR -2) District and is developed with commercial parking and multi -family residential uses. East: Property to the east is located in a Downtown Commercial General (DC -G) District and is developed with retail, restaurants, and a church. South: Property to the south across W. Hickory Street is located in a Downtown Commercial General (DC -G) District and is developed with an institutional use, the University of North Texas campus. West: Property to the west is located in a Downtown Commercial General (DC -G) District and is developed with a restaurant, retail, and quick vehicle servicing uses. COMPATABILITY OF REQUEST WITH SURROUNDING ZONING AND LAND USES: The DC -G District is one of the most permissive zoning districts within the Downtown University Core and encourages a mix of uses. The Fry Street Overlay District does not restrict any uses, but does provide the following: • Relaxation of parking requirements for commercial uses; • Standards that encourage both vertical and horizontal mixed use developments; and • Restrictions on the height and density of multi -family. The area has primarily developed with commercial uses and has multi -family developments to the east and north. The multi -family to the north lies within a DR -2 District, where up to 30 dwelling units per acre is permitted. Subarea B's density permits 72.5 units per acre and represents the current density provided for in the U Center student living apartment development. The proposed student living apartment development would be the densest development in the Fry Street Overlay District at 86 units per acre (where one bedroom is equal to half a dwelling unit). The student living apartment (multi -family use) is a compatible land use with the surrounding area, however, the height and density are not compatible because it exceeds other developments in the surrounding area creating a change in the character of the area. COMPREHENSIVE PLAN: The future land use designation for the subject properties per Denton Plan 2030 is Neighborhood/University Compatibility. This land use designation applies to residential and commercial areas adjacent to the University of North Texas (UNT) and Texas Women's University (TWU). Denton Plan 2030 acknowledges that increased enrollment at both institutions increases the need for student housing (Denton Plan 2030, pg. 195). The purpose of the Neighborhood/University Compatibility Area designation is to ensure that additional university facilities and housing is of compatible form and density to serve both the university and the abutting single family neighborhoods. To accomplish compatibility, developments of the Neighborhood/University Compatibility designation Area should: • provide a gradual transition in scale, use, character, and intensity between university and neighborhoods; • encourage uses that are in close proximity to one another to encourage walking and bicycling; • maintain the character of the area by making sure that new development is sensitive to the surrounding built and natural context in scale and form; and • adequately address parking needs and mitigate impact to adjacent neighborhoods (Denton Plan 2030, City of Denton Page 3 of 8 Printed on 12/2/2016 povveied by I_egist9i I;, File #: Z16 -0007a, Version: 1 pg. 75-76). Additionally, the Denton Plan 2030 encourages the use of Small Area Plans for the Neighborhood/University Compatibility designation to regulate development standards; guide zoning and regulatory adjustments associated with overlays; and to ensure compatibility of redevelopment (Denton Plan 2030, pg. 195). CONSIDERATIONS: 1. On January 27, 2016, the Planning and Zoning Commission with a 6-1 vote recommended denial of previous application Z15-0029. This application was scheduled for City Council to consider three times, but was eventually withdrawn by the applicant after two requests for continuance. On April 8, 2016 the applicant resubmitted a new application Z16-0007, which is currently being considered. 2. The applicant is requesting to create a new subarea, subarea C, within the Fry Street Overlay District on approximately 1.75 acres between Fry Street and Avenue B. The proposed subarea would accommodate a mixed use development comprised of student living apartments, retail, and a restaurant. According to the applicant, the existing Voertman's Bookstore and Subway is proposed to occupy the retail and restaurant spaces if the project was developed. 3. The following is a summary of development standards as stated in Denton Development Code, Section 35.7.5.2 and the proposed changes for subarea C: Subarea A Maximum Building Height: 3 stories, 45 feet Maximum Parking Garage Height: 45 feet Maximum Density (units/acre): Parking Ratio: Building Coverage (residential): 50 percent Building Coverage (mixed use): 80 percent Minimum Landscape Area: 15 percent Rear Yard Setback: 10 feet * Permitted Density is based on the development complying with the applicable development standards (floor area ratio, building coverage, parking, height and setbacks) in subarea A. The amount of dwelling units allowed will depend on the capacity after all the development standards are applied. ** Subarea A and B require 1 parking space per bedroom for units with 2 or more bedrooms. The applicant is proposing a parking ratio of 0.76 space per bedroom for units with 2 or more bedrooms. In addition, Subarea A and B non-residential, including restaurant, retail, private club, on -premises sale of beer and/or wine: one space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. The applicant is proposing only requiring one space for each four hundred (400) square feet of floor area. Current Parking Requirements: • Retail (10,766 square feet). One space per 400 square feet. 27 spaces City of Denton Page 4 of 8 Printed on 12/2/2016 povveied by I_egist9i I;, Proposed Subarea B Subarea C 4 stories, 55 feet 5 stories, 62.05 feet 5 stories, 60 feet 6 stories, 69.2 feet 72.5 du/ac 86 du/ac 50 percent 70 percent 80 percent 81 percent 15 percent 10.7 percent 10 feet 5 feet * Permitted Density is based on the development complying with the applicable development standards (floor area ratio, building coverage, parking, height and setbacks) in subarea A. The amount of dwelling units allowed will depend on the capacity after all the development standards are applied. ** Subarea A and B require 1 parking space per bedroom for units with 2 or more bedrooms. The applicant is proposing a parking ratio of 0.76 space per bedroom for units with 2 or more bedrooms. In addition, Subarea A and B non-residential, including restaurant, retail, private club, on -premises sale of beer and/or wine: one space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. The applicant is proposing only requiring one space for each four hundred (400) square feet of floor area. Current Parking Requirements: • Retail (10,766 square feet). One space per 400 square feet. 27 spaces City of Denton Page 4 of 8 Printed on 12/2/2016 povveied by I_egist9i I;, File M Z16 -0007a, Version: 1 • Restaurant (1,660 square feet). One space per 400 square feet. • 83 dwelling units (300 bedrooms). One space per bedroom. • Total parking spaces required. Proposed Parking Requirements: • Retail (10,766 square feet). One space per 400 square feet. • Restaurant (1,660 square feet). One space per 400 square feet. • Student living apartments (300 bedrooms). 0.76 space per bedroom • Total parking spaces required. 5 spaces 300 spaces 332 spaces 27 spaces 5 spaces 228 spaces 260 spaces 4. The proposed subarea C development standards are inconsistent with the proposed site plan submitted. • The proposed development standards requires 260 parking spaces, the site plan reflects 258 parking spaces. • The proposed development standards requires the parking garage facade to mimic the adjacent buildings. The parking garage facade facing west, visible from the public right-of-way, does not incorporate architectural features that mimic adjacent buildings. • The landscape show all retail on the ground floor, however the site plan table indicate a mixed use development (three or more mutually supporting land uses). Clarification has been requested of the applicant numerous times, but as of this writing, staff has not received a response. 5. The Denton Development Code defines multi -family as a structure that contains three (3) or more dwelling units and any ancillary uses. The Denton Development Code does not have a definition for student living apartments. Therefore, student living apartments fall under the definition of multi -family use. 6. The proposed student living apartment development would be the densest development in the Fry Street Overlay District at 86 units per acre (where one bedroom is equal to half a dwelling unit). Subarea B's density is 72 units per acre. Although proposed student living apartment, retail and restaurant uses are compatible land uses with the surrounding area, the height and density of the development is not compatible. The height of the surrounding buildings are 4 stories or less and the densities are much less. 7. The total parking required is 332 spaces for all the proposed uses. The applicant is proposing to provide 258 (222 parking spaces on site and 36 parking spaces off site). This reflects a 74 space deficit. The Fry Street Overlay District parking requirements are intended to ensure there is adequate parking for residents and a relaxed parking for retail and restaurant uses. The parking requirements for dwelling units with two bedrooms or more in the Fry Street Overlay District is higher than in other areas of the city and the parking requirements for retail and restaurants in the Overlay District is lower than in other areas of the city. 8. The U Center at Fry Street development was able to comply with all parking standards of the District. The parking requirements for the U Center at Fry Street development for dwelling units with two bedrooms or more is one (1) space for each bedroom. City of Denton Page 5 of 8 Printed on 12/2/2016 povveied by I_egist9i I;, File #: Z16 -0007a, Version: 1 9. A Traffic Impact Analysis (TIA) is required for this project to determine if development will negatively impact traffic on surrounding streets. A TIA was submitted for staff review, and the analysis and associated mitigations were found to be acceptable by the Development Review Engineering Division. 10. The proposed project does not comply with the solid waste requirements. The Solid Waste Department requires that all containers be accessible at all times. The applicant is proposing to roll out the containers during collection days. The proposed location to roll out the containers is within the fire lane and parking spaces which are not acceptable locations. A solution to the solid waste requirement has not been reached. 11. The Fire Department requires aerial apparatus fire access for any buildings over 30 feet in height. Aerial apparatus access requires a 26 foot fire lane positioned 15 to 30 clear feet alongside the building. This site plan is designed to allow for the aerial access along the fire lane located on the east side of the building. 12. The applicant has indicated they are currently working on a boundary agreement with the neighboring property to the west in order to achieve the 10 -foot clearance around the building. Approval of the site plan is contingent upon having that 10 -foot clearance. This agreement must be obtained prior to site plan approval. 13. While the development does increase the student housing stock in the area, the proposed amendment and associated development standards are not consistent with the Neighborhood/University Compatibility Area future land use designation 2030 (Denton Plan 2030, pg. 75-76) for the following reasons: • The development does not provide a gradual transition in scale, use, character, and intensity between university and neighborhoods; • The development does not maintain the character of the area by making sure that new development is sensitive to the surrounding built and natural context in scale and form; and • The development does not adequately address parking needs and the potential impact to adjacent neighborhoods. 14. Per Section 35.7.3 of the Denton Development Code, Special Purpose Overlay Districts are established to protect and enhance certain specific lands and structures which, by virtue of their type or location, have characteristics which are distinct from lands and structures outside such special districts. 15. It should be taken into consideration that continuous amendments to the Fry Street Overlay District standards without fully realizing the impact of higher density/intensity projects on infrastructure, transportation, parking, and neighborhood compatibility compromises cohesiveness and compatibility of adjacent uses and could potentially alter the surrounding land use pattern. The creation of a new subarea to accommodate a new development would further compromise the effectiveness of the Overlay District. Changes to and Overlay District must enhance or conform to the purpose of the Overlay District's goals and objectives. As submitted, the proposed development only further amends the district to conform to a specific proposed development without a comprehensive analysis of impact to the surrounding areas. 16. Three neighborhood meetings were held for this project. The first meeting was held on September 29, 2015. The second was held on November 12, 2015. The third meeting was held on May 10, 2016. The meeting attendees expressed a level of comfort with subarea A of Fry Street Overlay District as written. Concerns raised included increased traffic along Oak and Hickory, increased parking in single family neighborhoods adjacent to the project, and lack of a shade study for height of the building. City of Denton Page 6 of 8 Printed on 12/2/2016 povveied by I_egist9i I;, File M Z16 -0007a, Version: 1 17. A Small Area Plan for the Fry Street area was adopted in 1999. At the January 26, 2016 City Council Work Session, the Planning Division presented the importance of Small Area Planning and Division's intent to begin the process of creating and implementing a new Fry Street Small Area Plan in accordance with the goals of the Denton Plan 2030. The plan would take into consideration the community's vision for the area, need for adequate transportation and parking, infrastructure, and architectural compatibility of the Neighborhood/University Compatibility area to better facilitate redevelopment and reinvestment development projects that meet the needs of the university and the adjacent neighborhoods. PUBLIC NOTIFICATION: To comply with the public hearing notice requirements, 51 notices were sent to property owners within 200 feet of the subject property, 124 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. As of this writing, staff has received four responses to the public hearing notice from property owners within 200 feet of the subject property. Two property owners are in favor and two are in opposition of the subject 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 denial of this request (4-1). The Development Review Committee recommends denial of the request to amend Subchapter 35.7.5, the Fry Street Overlay District, to create a new subarea and development standards for the following reasons: • The proposed amendment and associated development standards are not consistent with the Denton Plan 2030; • The creation of a new subarea to accommodate a new development would further compromise the effectiveness of the existing Overlay District; • The proposed development's height and density are not compatible with the surrounding area; • The proposed development standards for subarea C are inconsistent with the proposed site plan submitted; • Solid Waste requirement regarding location of containers is still pending; and • A boundary agreement with the neighboring property to the west has not been obtained. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On October 26, 2016, the Planning and Zoning Commission recommended denial of the rezoning request (4-1). STRATEGIC PLAN RELATIONSHIP City of Denton Page 7 of 8 Printed on 12/2/2016 povveied by I_egist9i I;, File #: Z16 -0007a, Version: The City of Denton's Strategic Plan is an action -oriented road map that will help the City achieve its vision. The foundation for the plan is the five long-term Key Focus Areas (KFA): Organizational Excellence; Public Infrastructure; Economic Development; Safe, Livable, and Family -Friendly Community; and Sustainability and Environmental Stewardship. While individual items may support multiple KFAs, this specific City Council agenda item contributes most directly to the following KFA and goal: Related Key Focus Area: Economic Development Related Goal: 3.4 Encourage development, redevelopment, recruitment, and retention EXHIBITS: 1. Site Location 2. Zoning Map 3. Future Land Use Map 4. Project Narrative 5. Draft Fry Street Overlay District Amendment 6. Notification Map 7. Public Hearing Notice Responses 8. Draft October 26, 2016 Planning and Zoning Commission Meeting Minutes 9. Draft Ordinance Respectfully submitted: Munal Mauladad Director of Development Services Prepared by: Ron Menguita, AICP Long Range Planning Administrator Planning Division City of Denton Page 8 of 8 Printed on 12/2/2016 povveied by I_egist9i I;, Proposed Site Z16-0007 Site Location ft N .F' L d^ 0 125 250 500 SITE E Parcels SOF .. Roads �w � � �, � ewvi es . GIS A�..mm..m -w D- 10„0,2016 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, enpineerinp 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 A. The City of Denton makes every efforto 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 ofthis map indicates understanding and acceptance of th is statement. Z16-0007 Zoning Map DR -2 Proposed Site Z16-0007 Future Land Use Map 141�IDlq�l o Ncainhhnrhnnrl o N .F' L 1" 0 230 460 920 SITE FUtUC@ Land Use Neighborhood Mixed Use " a Feet Parcels Low Residential Neighborhood / University Compatibility Area s , Roads Downtown Denton Commercial P,crrY Downtown Compatibility Area Government/Institutional oF� Community Mixed Use D a , � Development Services, B ` D- 10/10/2016 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, enpineerinp 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 A. The City of Denton makes every efforto produce and publish the most current and accurate information possible. No warranties, expresse or implied, are provided for the data herein, its use, or its interpretation. Utilization ofthis map indicates understanding and acceptance ofth is statement. PLE � I � PEARL HAYNES Z w o GREGG N .F' L 1" 0 230 460 920 SITE FUtUC@ Land Use Neighborhood Mixed Use " a Feet Parcels Low Residential Neighborhood / University Compatibility Area s , Roads Downtown Denton Commercial P,crrY Downtown Compatibility Area Government/Institutional oF� Community Mixed Use D a , � Development Services, B ` D- 10/10/2016 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, enpineerinp 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 A. The City of Denton makes every efforto produce and publish the most current and accurate information possible. No warranties, expresse or implied, are provided for the data herein, its use, or its interpretation. Utilization ofthis map indicates understanding and acceptance ofth is statement. Narrative Fry Street Overlay District Proposed Amendment for EDR - UNT Project The purpose of this amendment is to create a new 1.70 -acre subdistrict in the Fry Street Overlay (Subdistrict B-1) to allow for the construction of a new mixed-use development. The proposed mixed-use project will have retail uses on the ground floor and multifamily uses above. A total of 83 dwelling units are proposed for the property. There will be a total of 300 bedrooms and 252 off-street parking spaces. The proposal has two main components: 1. Increase the maximum permitted height to 58 -feet; and 2. Reduce the required off-street parking for the multifamily use to 0.84 parking spaces for each bedroom. The property is currently developed with commercial uses and surrounded by commercial uses to the east and west. University campus uses are located south of Hickory Street. Mixed density residential uses are also located to the north, east, and west. The property is located within a Neighborhood/University Compatibility Area on the Future Land Use Map. The proposed mixed-use development complies with the Denton Plan 2030 because it is a compact development with a mix of uses, provides additional housing choices, and compliments the thriving university area. We believe that the proposed off-street parking requirements are adequate and appropriate for this site based on the project location, our experience with other projects EDR has developed, owned and operated and the driving habits of the expected tenants at the project. The Denton Unified Development Code clearly states that the purposes of the off-street parking standards are to ensure the new developments provide "adequate and reasonable" parking to support the use. The Unified Development Code goes further to state that where a literal interpretation of the off-street parking standards would not clearly achieve the purpose and intent of the standards, the developer can seek a variance to the standards. In this case, we are convinced that a literal interpretation of the off-street parking standards does not constitute the current market demand for parking for collegiate housing nor does it further best planning practices. The American Planning Association recognizes that a project's proximity to a major use has an impact on the amount of parking required. In this case, our location directly across the street from the University of North Texas, clearly suggests that our tenant will not need an automobile to attend classes or visit university supporting retail and commercial uses in the area. The Walk Score rating for this address is high which means that the people living in this area do not have to rely on private automobiles. The general purpose of off-street parking regulations is to make sure that there is adequate parking so the parking demanded by a certain use is not forced onto adjacent properties or into residential neighborhoods. Our research and experience of similarly situated projects clearly demonstrates that what we are proposing meets the market demand for the proposed use at the proposed location. EDR is in the business of providing housing in proximity to major universities. Their experience is that providing one parking space per bedroom is not warranted and this experience is based on their projects across the country and in universities in Texas. At their project at Texas State University, they are providing 69% of the standard parking. This project shares similar characteristics to the proposed project. Both these projects are similar to the proposed project and there is no reason to assume that the tenant characteristics would be different. In Denton, the UCenter at Fry provides all the parking as required by the Denton Development Code and their management has told us that the top level of the parking garage is normally empty. At the 33 Degrees North project, they provide 70% of the required parking and our conversations with their management reflect that this is adequate to meet their needs. If they cannot serve their tenants parking needs, they will not be able to lease their units and the project would not be successful. This project is well designed and throughly reflective of the current best planning practices today. We are in an excellent location that truly allows for our tenants to walk, bike or take public transportation for their needs. We are confident that the proposed design is reasonable and adequately address the parking needs for the project. 35.7.5 Fry Street Overlay District 35.7.5.1 Fry Street District Established There is hereby established a special zoning overlay district to be known as the Fry Street District. The Fry Street District is defined as that area approximately 12.42 acres in size which is bounded by Welch Street to the east, Oak Street to the North, Ave B to the northwest, Ave A to the southwest, Mulberry Street to the south, and Hickory to the southwest. All buildings, structures, sites, and properties within the designated district shall be subject to the restrictions, limitations, and provisions of the Fry Street District regulations as provided for in section 35.7.5, and its subsections. The district is further divided into subareas A, B and C, as depicted in Exhibit 35.7.5.A. Each subarea is subject to distinct regulations, where noted herein. Exhibit 35.7.5.A Legend C3Fryown& Msm F. "m surarea a. Subarea C 35.7.5.2 Purpose and Intent The purpose and intent of this overlay district is to promote the public peace, safety, cleanliness, and general welfare for community members and patrons of the Fry Street District, by providing for regulations on off-street and remote parking, the location of solid waste containers, and the regulation of signs, setbacks, and residential and commercial density. 35.7.5.3 Multi -Family Uses Multi -family residential uses shall be allowed within any zoning district within the Fry Street District. 35.7.5.4 Solid Waste Containers A. Location. Solid waste containers in the Fry Street District shall be located off the street in centralized locations, to the rear of buildings served by each container, and shall be screened with devices made of masonry or wood. B. Consolidation. Each owner, occupant, tenant, or lessee of any business, commercial, or institutional property, or other property not served by residential solid waste collection service, shall contract with the City for shared or consolidated commercial solid waste collection and disposal services, unless otherwise required by ordinance. C. Subarea B shall provide adequate area to accommodate two (2) trash compactors to serve the Subarea, in a location specified by the approved site plan for the subarea. D. In Subdistrict C, solid waste containers must be located within the building and rolled out on collection days to facilitate garbage collection. 35.7.5.5 Subarea A Development Standards The provisions of Subchapter 14 shall apply to the Subarea A, except as follows: A. Remote parking. Remote off-street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off-street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non-residential, including restaurant, retail, private club, on -premises sale of beer and/or wine: One space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. C. Multi -family residential. Multi -family residential development in Subarea A shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one-fourth (1.25) space 2. Units with 1 bedroom: One and one-half (1.50) space 3. Units with 2 or more bedrooms: One space for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom The provisions of Subchapter 5 shall apply to Subarea A, except as modified for each subarea below: A. Minimum lot area: 1. Residential uses: Six thousand (6,000) square feet. 2. Non-residential uses: No minimum lot area. 3. Mixed uses, including residential: No minimum lot area. B. Minimum lot depth for residential uses: One hundred (100) feet. C. Minimum lot width for residential uses: Sixty (60) feet. D. Maximum building coverage: 1. Residential uses: 50% 2. Non-residential uses: 100% 3. Mixed -uses that include residences: 80% E. Floor / Area Ratio: 1. Residential uses: 3 : 1 2. Non -Residential uses: 2 :1 3. Mixed -uses that include residential: 3 : 1, provided that residential uses shall comprise the top story of any structure F. Required Yards: 1. Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non -Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed -uses that include residential: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet for any floor that includes residences G. Height Regulations. No structure may exceed 3 stories. Overall building height, including HVAC equipment, roof systems, vent stacks, chimneys, etc., may not exceed 45 feet in height. H. Residential densities. The maximum number of apartment units that can be constructed on a site, while observing regulations including floor area ratio, building coverage, parking, height and setbacks, shall require a minimum land area in accordance with the following schedule: a. Efficiency: 1,000 square feet b. One -bedroom apartment: 1,200 square feet C. Each additional bedroom per apartment: 300 square feet 35.7.5.6 Subarea B Development Standards The provisions of Subchapter 14 shall apply to Subarea B, except as follows: A. Remote parking. Remote off-street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off-street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non-residential, including restaurant, retail, private club, on -premises sale of beer and/or wine: One space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. C. Multi -family residential — Multi -family residential development in Subarea B shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one-fourth (1.25) space 2. Units with 1 bedroom: One and one-half (1.50) space 3. Units with 2 or more bedrooms: One space for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom The provisions of Subchapter 5 shall apply to the Subdistrict B, except as modified for each subarea below: A. Minimum lot area: 1. Residential uses: Six thousand (6,000) square feet. 2. Non-residential uses: No minimum lot area. 3. Mixed uses, including residential: No minimum lot area. B. Minimum lot depth: for residential uses: One hundred (100) feet. C. Minimum lot width for residential uses: Sixty (60) feet. D. Maximum building coverage: 1. Residential uses: 50% 2. Non-residential uses: 100% 3. Mixed -uses that include residences: 80% E. Floor / Area Ratio: 1. Residential uses: 3 :1 2. Non -Residential uses: 2 :1 3. Mixed -uses that include residential: 3 : 1, provided that residential uses shall comprise the top story of any structure F. Required Yards: 1 Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non -Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed -uses that include residential: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet for any floor that includes residences G. Height Regulations: No habitable structure may exceed 4 stories, with an overall building height of 55 feet, including HVAC equipment, roof systems, vent stacks, chimneys, etc. H. Residential Density: The maximum residential density of Subarea B shall be 72.5 units per acre, where one (1) bedroom is equivalent to one-half (0.5) of a residential unit. L Parking Structures: No parking structure may exceed 5 stories, or 60 feet in height. Mechanical equipment, including HVAC equipment, roof systems, vent stacks, and satellite dishes, maybe mounted on the top story of parking structures, provided they are not visible from any adjacent public right-of-way. Construction shall substantially conform to the site plan shown at Exhibit 35.7.5.B. K. The following requirements apply to Subarea B, in addition to any other requirements provided by code or ordinance: 1. Residential Units fronting Welch Street shall incorporate sloped roof pitches. 2. Parking Structures will be provided with a facsade designed to mimic the adjacent buildings within the subarea, so as to assist in integrating the structure into the balance of the subarea, and to assist in camouflaging the structure from the public right-of-way. 3. Each principal facsade or massing area shall incorporate at least two (2) of the features identified on the image board (Exhibit 35.7.5.E.), including but not limited to: a. Store front design b. Awnings C. Stoops on the street level d. Accent bay windows e. Cornice details f. Brick facades with flat roof lines A. The incorporation of a bench and street tree in front of the building h. Arch details 1. Shutters. 35.7.5.7 Subarea C Development Standards The provisions of Subchapter 14 shall apply to Subarea C, except as follows: A. Remote parking. Remote off-street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off-street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non-residential, including restaurant, retail, private club, on -premises sale of beer and/or wine: One space for each four hundred (400) square feet of floor area. C. Multi -family residential: Multi -family residential development in Subarea C shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one-fourth (1.25) space 2. Units with 1 bedroom: One and one-half (1.50) space 3. Units with 2 or more bedrooms: 0.76 spaces for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom The provisions of Subchapter 5 shall apply to the Subdistrict C, except as modified below: A. Minimum lot area: 1. Residential uses: Six thousand (6,000) square feet. 2. Non-residential uses: No minimum lot area. 3. Mixed uses, including residential: No minimum lot area. B. Minimum lot depth for residential uses: One hundred (100) feet. C. Minimum lot width for residential uses: Sixty (60) feet. D. Maximum density: 86 dwelling units per acre, where one (1) bedroom is equivalent to one-half (0.5) of a residential unit. E. Maximum building coverage: 1. Residential uses: 70% 2. Non-residential uses: 100% 3. Mixed -uses that include residences: 81% F. Floor / Area Ratio: 1. Residential uses: 3 :1 2. Non -Residential uses: 2 :1 3. Mixed -uses that include residential: 3 : 1, provided that residential uses shall comprise the top story of any structure G. Required Yards: 1. Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non -Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed -uses that include residential: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 5 feet for any floor that includes residences H. Height Regulations: 1. No habitable structure may exceed 5 stories, with an overall building height of 62.05 feet, including HVAC equipment, roof systems, vent stacks, chimneys, etc. 2. No parking structure may exceed 6 stories, or 69.2 feet in height. L Parking Structures: Mechanical equipment, including HVAC equipment, roof systems, vent stacks, and satellite dishes, may be mounted on the top story of parking structures, provided they are not visible from any adjacent public right-of-way. J. Construction shall substantially conform to the site plan shown at Exhibit 35.7.5.F. K. The following requirements apply to Subarea C, in addition to any other requirements provided by code or ordinance: 1. Parking Structures will be internal to the building or provided with a facsade designed to mimic the adjacent buildings within the subarea, so as to assist in integrating the structure into the balance of the subarea, and to assist in camouflaging the structure from the public right-of-way. 2. Buffers in Subarea C must comply with Exhibit 35.7.5.I. 3. Each principal facsade or massing area shall incorporate at least two (2) of the features identified on the image board (Exhibit 35.7.5.H.), including but not limited to: a. Store front design b. Awnings C. Stoops on the street level d. Accent bay windows e. Cornice details f. Brick facades with flat roof lines A. The incorporation of a bench and street tree in front of the building h. Arch details L Shutters. 35.7.5.8 Sign Regulations The provisions of Chapter 33 of the Denton Code of Ordinances, as hereafter amended, superseded or replaced, shall apply, except as modified for each subarea below: A. Prohibited signs. Ground and monument signs are prohibited within Subarea A, but may be permitted in Subareas B and C, consistent with the limitations of 35.7.5.8.B.2 below. B. Allowed signs 1. Wall signs. Wall signs in the Fry Street District may be permitted, subject to the following additional restrictions and limitations: a. Mounting and Orientation. All signs in Subarea A of the Fry Street District shall be wall mounted signs, mounted parallel with, and not perpendicular to, the face of the wall upon which the sign is secured. Wall signs in Subareas B and C may be mounted perpendicular to building faces, provided they do not encroach into public rights-of-way. b. Residential — Subarea A only. Signs associated with residential uses in subarea A of the Fry Street District Signs shall be limited to the purpose of indicating the name of the residential development (apartment, condominium, etc.) or for informational or regulatory purposes. C. Mixed -uses that include residential — Subarea A only. Signs associated with mixed uses in subarea A of the Fry Street District shall be allowed only on those stories of a building that include non-residential uses. 2. Monument signs — Subareas B and C only. Monument signs, not exceeding 15 square feet of effective area, may be permitted at entrances to mixed use developments, as depicted in the site plan for Subarea B (Exhibit 35.7.5.B) and the site plan for Subarea C (Exhibit 35.7.5.F) 3. Design — Subareas B and C. Signs in Subareas B and C shall be in a style and size consistent with the conceptual designs provided in Exhibit 35.7.5.C. 35.7.5.9. Landscaping Requirements for Subareas B and C only: Landscaping. Subarea B shall provide landscaping as depicted in Exhibit 35.7.5.D and the landscaping for Subarea C shall comply with Exhibit 35.7.5.G. 35.7.5.10. Minor Amendments Upon request of the applicant, the Director of Planning and Development, or his designee, may authorize minor amendments to the site or landscape plan so long as such minor amendments do not change the land use or substantially change the character, development standards, or design of the development as shown on the approved site or landscape plans. For purposes of this provision, a "substantial change" shall mean a change which will increase the number of proposed dwelling units or bedrooms, height, or number of stories; or decrease the amount of required off-street parking spaces. The Director of Planning and Development, or his designee, shall make such authorization only in writing and such document shall be placed in the ordinance file governing the specific plan. 35.7.5.11. Conflict with Other Regulations To the extent the provisions of this article conflict with any other ordinances of the City of Denton, the provisions of this article shall control. Al provisions of other City of Denton ordinances not in conflict with this article shall remain in full force and effect. Exhibit 35.7.5.13. Subarea B Site Plan oyc rv.:,xrc'� � wEsr flLN STRk"f.T 5'J a[a pm - Ll Ila u 0 = Exhibit 35.7.5.C. Subareas B and C Conceptual Sign Renderings 5 Exhibit 35.7.5.C. Subarea B Conceptual Sign Renderings — Continued HICKOPY5f—ENLARGED ELEYANON 1 i MOM FRY M FA1WE DRIVE I "tfleld\ vf,I—, 51¢ 1 rroFec IW '.. il'Id vIP`N Exhibit 35.7.5.D. Subarea B Landscaping Plan rWHO mv ia ire Exhibit 35.7.5.E. Subarea B Architectural Image Board ARCH DETAIL BRICK FACADE STORE FRONT DETAIL AWNING DETAIL RESIDENTIAL M SLOPED ROOF TO THE EAST OF WELCH SHUTTERS IMAGE BOARD Exhibit 35.7.5.F. Subarea C Site Plan NEWW I N CT PLANNED� c n m n Exhibit 35.7.5.F. Subarea C Site Plan — Data Table 9, I C, M rn 'z- 39 91 vt 0 kf� 4111 Exhibit 35.7.5.G. Subarea C Landscape Plan r Cr €' gl.v, Exhibit 35.7.5.1-1 Subarea C Conceptual Elevations a CD C 0 C z C V m z 0 C > Z M P. Z m U1 > Pn m A m r � m 0 Z R Exhibit 35.7.5.1-1 Subarea C Conceptual Elevations ,C 90 K z m I z C z Vi C a m z 0 C 2z Exhibit 35.7.5.1-1 Subarea C Conceptual Elevations I m I I m 0 Exhibit 35.7.5.1-1 Subarea C Conceptual Elevations a m C z m z glo C 2z fM IT vx V�'7 Vx vjr qx 41,q v, 3-� 9 9 I I m 9 I m m 9 I C z q m z 0 C 2z ';,,Q Exhibit 35.7.5.1-1 Subarea C Conceptual Elevations 9 9 I 4-U cn 9 I 9 I I Exhibit 35.7.5.1 Subarea C Bufferyard Cross Section sidewalk grass strip L' I6'Ll6&' 4NI, HUMPHREYS & PARTNERS ARCHITECTS, L.P. EDR I SECTIONS -8 � UNT STUDENT MOUSING :Zi3.�LWFa Ra S�Ie:Y7G, ..OMS TX � 1 ;7� 70,9K6 1 ~-P—Dm I plemIX-2'..16 HPA41,0.] J J ;1 Exhibit 35.7.5.1 Subarea C Bufferyard Cross Section grass strip sidewalk Y.s4E:1�16'=1-]" .'2G°xio 5F`EET'• L' 16 Ll6&' HUMPHREYS & PARTNERS ARCHITECTS, L.P. EDD I SECTION A -A � UNT STUDENT HOUSING E339 Atm Re� ..OMS T%. a! 37"09W ; ~-P-Dm I Wwt�N.-016 N P,14 tai Z16-0007 Notification Map Thuradgy, October 20, 2016 0313 PM Allen Faltmon, COM 972-599-1102 P.01 Please see other side for public comment information. In order for your opinion to be counted, please complete this form and mail to: Department of Devolopmcnt Scrvices Attn: Ron Mengtrita, Project Manager 221 N. Elm Street Denton, TX 76201 You may Woo email or fax a copy to: Email: roii.iiiengulta@eityofdeiitoii,co)ii Fax: (940) 349-7707 Prqject No. Z16.0007 fn favor of rcQucil ' Neutral to request Opposed to request Comments: Signature:r' Printed Name: Mailing Address: City, State Zip: Phone Number: q I qjjc),� . .✓ . . ..... .................... Email Address: CL rd 2 + W 1.1" @ q w Physical Addrcm of Property within 200 £foot: Ale For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on October 21, 2016. J I t 1 tv,5 -v i City of Planning Division/City Hall West/221 Nc. Elm Street, Denton, TX76201/940,349.8.141 www,cityofflenton,com Please see other side for public comment information. In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Ron Menguita, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: ron.menguita@cityofdenton.com Fax: (940) 349-7707 Project No: Z16-0007 Please circle one: / In favor of request Neutral to request Opposed to request Comments: Signature: Printed Name- }p,L cl Mailing Address: T City, State Zip:2- c, Phone Number: 7 2 6 � --4� 6 Email Address: ( bs / Physical Address of Property within 200 feet: �� ZJ f►' For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on October 21, 2016. Imp: 7Nyvy�v citvofdenton.Com/�-1overnnlcnt/citv-Council/citv-coLIIICiinutes-videos City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com Please see other side for public comment information. In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Ron Menguita, Project Manager 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: ron.menguita@cityofdenton.coin Fax: (940) 349-7707 In favor of request Comments: 15 VD -0-A r\, � C Project No: Z16-0007 Please circle one: Neutral to request Opposed to request 01 't 4- c . w C j U --s Ct c Signature: ho r Printed Name: Mailing Address: 0,) - City, .City State Zip: a C ~ (4 Z Phone Number: Email Address: Physical Address of Property within 200 feet: jt- For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be posted on October 21, 2016. http.//www.cityofdenton.com/governmcnt/citycouncil/city-council-agendas-minutes-videos City of Denton Planning Division/City Hall West/221 N. Elm Street, Denton, TX 76201/940.349.8541 www.cityofdenton.com In order for your opinion to be counted, please complete this form and mail to: Department of Development Services Attn: Ikon Menguita, Project Manage- 221 N. Elm Street Denton, TX 76201 You may also email or fax a copy to: Email: ron.menguita@,cityofdenton.com Fax: (940) 349-7707 Please circle one: In favor of request Neutral to request Opposed to request 8 + "✓ ®l AF A a�f�F�—F Ate. 1 Signature. Printed Name: I Mailing Address: , City, State Zip; —7 Phone dumber: Email Address: r I L - -- Physical Address of Property within 200 feet; ,�. For specific information regarding the request, please refer to the City's website (see link below) for staff's analysis. The staff analysis will be pasted on October 21, 2016. http:llwwNA,.cityof enton.com/,ovei-nmeiit/city-council/city-council-agendas-i-nmutes-videos City of Denton Planning Division/City Hall West/221 N. Elm Street, .Menton, TX 76201/940.349.$541 www.cityofdenton.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Minutes Planning and Zoning Commission October 26, 2016 After determining that a quorum was present, the Planning and Zoning Commission of the City of Denton, Texas convened in a Work Session on Wednesday, October 26, 2016 at 4:30 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: Chair Strange, Commissioners: Gerard Hudspeth, Larry Beck, Andrew Rozell, Margie Ellis, and Steve Sullivan. Absent: Vice Chair Devon Taylor. Staff: Cathy Welborn, Athena Green, Munal Mauladad, Mike Bell, Julie Wyatt, Ron Menguita, Muzaib Riaz, Jennifer DeCurtis, Earl Escobar, Debra Viera and Cindy Jackson. Chair Strange called the Work Session to order at 4:35 p.m. 1. Clarification of agenda items listed on the agenda for this meeting, and discussion of issues not briefed in the written backup materials. Munal Mauladad, Director of Development Services, requested that the two public hearing items will be heard out of order due to the anticipation of a large public turnout. Julie Wyatt, Senior Planner, presented Consent Agenda item 3A. Commissioners had no questions on this item. Mike Bell, Senior Planner, answered question for Commissioner Beck about Consent Agenda item 3B on if it has been established that it is going to be a multifamily dwelling. Bell stated that is what the applicant has expressed. 35 Mike Bell, Senior Planner, presented Public Hearing item 4B to consider making a 36 recommendation to City Council regarding an Alternative Environmentally Sensitive Area (ESA) 37 Plan for Ryan Meadows. Bell stated there are three Environmentally Sensitive Areas, an 38 Undeveloped Floodplain, Riparian Buffer, and Water Related ESA. The Mobility Plan for 39 Creekdale Drive cuts straight through the ESA areas. There were no responses received in 40 opposition or in favor. Staff recommends approval if the following conditions are met 1. The total 41 disturbed area shall not exceed 0.45 acres and areas to be disturbed shall be consistent with the 42 Alternative ESA Plan.2. Twenty-five trees, of three inches diameter at planting, must be planted 43 to mitigate for the removal of the ESA's. Location for the tree planting should be consistent with 44 the Alternative ESA Plan. 3. All disturbed areas shall be re -vegetated using native plants. 45 Commissioner Rozell questioned the condition of the Riparian Buffer. Bell deferred question to 46 Deborah Viera, Environmental Compliance Coordinator. Viera stated the buffer was inspected in 1 1 2014. Rozell also questioned if there was any sign of water flow. Viera stated when she inspected 2 the site there was stagnant water; however this area is interment so it only has water flow during 3 certain times of the year. Commissioner Rozell questioned if lots 142 and 143 is considered single - 4 family residential lots. Bell stated those areas are Home Owner's Association (HOA) maintenance 5 areas. 6 7 Commissioner Sullivan questioned how much water would be draining into this flood plain. Earl 8 Escobar, Engineering Development Review Manager, stated the plan is to realign Hickory Creek 9 Road. Chair Strange questioned when a roadway has to go through the Environmentally Sensitive 10 Area (ESA) why does the developer have to come in and mitigate. Bell stated the Denton 11 Development Code has nothing that exempts those requirements. 12 13 Ron Menguita, Long Range Planning Administrator, presented Public Hearing item 4A to amend 14 the Overlay District to create a new subarea. The five story mixed use development will go where 15 Voertman's book store and the Subway Restaurant are located. The applicant withdrew the first 16 submission Z15-0029 in January of 2016. They then reapplied on April 8, 2016 with the only 17 change being an additional 36 parking spaces. 18 19 Commissioner Beck questioned if the actual building will be six stories. Menguita confirmed that 20 the sixth story would be with the garage included. Chair Strange questioned when subarea A and 21 B were put into place. Menguita stated Subarea A was in 2000 and Subarea B was in 2010. 22 23 Commissioner Hudspeth arrived at 5:09 PM 24 25 Commissioner Beck questioned the size of the roll out trash cans. Escobar stated that they are 26 about 2 cubic yards. Chair Strange questioned why it doesn't follow the 2030 plan. Menguita stated 27 it is due to the compatibility of the area. Menguita stated staff is recommending denial of this 28 request for the following reasons: The proposed amendment and associated development standards 29 are not consistent with the Denton Plan 2030; the creation of a new subarea to accommodate a new 30 development would further compromise the effectiveness of the existing Overlay District. The 31 proposed development's height and density are not compatible with the surrounding area; the 32 proposed development standards for subarea C are inconsistent with the proposed site plan 33 submitted; Solid Waste requirement regarding location of containers is still pending; and a 34 boundary agreement with the neighboring property to the west has not been obtained. 35 36 Commissioner Ellis questioned what the difference between the two proposals. Menguita stated 37 the difference is the 36 parking spaces. 38 39 Chair Strange called a recess from 5:33 p.m. to 5:40 p.m. 40 41 2. Work Session Reports 42 43 A. Receive a report and hold a discussion regarding current notification practices and requirements 44 for public hearings. (Cindy Jackson and Ron Menguita) 45 Cindy Jackson, Senior Planner, presented the public notification process. Jackson stated this is a 46 follow up from all the feedback that was given from the previous meeting regarding this item. PA I Commissioner Beck questioned if a property owner could receive two notices. Jackson 2 confirmed. Jackson stated staff will be moving this forward to City Council. Beck questioned if 3 staff was able to provide a self-addressed and stamped envelope in with the notice. Jackson 4 stated the mailing company that staff uses is unable to comply with that request at this time. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Commissioner Rozell suggested using Facebook to advertise public hearings and for staff to research the response rate to postcards. Commissioner Beck requested for the Public Hearing signage to be placed on site earlier than the current process. Chair Strange adjourned the Work Session at 6:07 p.m. REGULAR MEETING Chair Strange called the Regular Meeting to order at 6:32 p.m. 1. PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag 2. CONSIDER APPROVAL OF THE PLANNING AND ZONING COMMISSION MINUTES FOR: A. October 12, 2016 Commissioner Andrew Rozell motioned, Commissioner Larry Beck seconded to approve the October 12, 2016, meeting minutes. Motion approved (6-0). Commissioner Larry Beck "aye", Commissioner Steve Sullivan "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", Commissioner Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". A. Consider a Preliminary Plat for Lots 1-8 of the Ranch View Surgical Hospital Addition. The approximately 11 acre site is generally located at the northeast corner of 1-35W and Crawford Road in the Elizano Pizano Survey, Abstract No. 994, City of Denton, Denton Countv (PP16-0008, Ranch View Specialty Hospital, Julie Wim) B. Consider a Preliminary Plat of Lot 1, Block A of the Eagle Heights Addition. The approximately 1.63 acre property is generally located at the southeast corner of South Locust Street and East Eagle Drive, within the Alexander Hill Survey, Abstract No. 623, in the City of Denton, Denton County, Texas. (PP16-0012 Eagles Heights Addition Mike Bell) Commissioner Larry Beck motioned, Commissioner Gerard Hudspeth seconded to approve the Consent Agenda items. Motion approved (6-0) Commissioner Larry Beck "aye", Commissioner Steve Sullivan "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye" Commissioner Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". Chair Strange moved Public Hearing item 4B to the beginning of the Public Hearing items. 3 2 A. Hold a public hearing and consider making a recommendation to City CounciL regarding 3 amending Subchapter 35.7.5, the Fry Street Overlay District, to create a new subarea and 4 development standards for a mixed use development on approximately 1.75 acres, generally 5 located north of Hickory Street, south of Oak Street, approximately 200 feet east of Avenue B and 6 approximately 125 feet west of Fry Street. (Z16-0007, Fry Street overlay District Amendment, 7 Ron Menguita) 8 9 Chair Strange opened the Public Hearing. 10 11 Ron Menguita, Long Range Planning Administrator, presented Public hearing item 4A. Jennifer 12 DeCurtis, Deputy City Attorney, stopped Menguita to allow Commissioner Sullivan to recuse 13 himself from this item due to a conflict. Staff recommends denial for the following reasons: The 14 proposed amendment and associated development standards are not consistent with the Denton 15 Plan 2030; the creation of a new subarea to accommodate a new development would further 16 compromise the effectiveness of the existing Overlay District. The proposed development's height 17 and density are not compatible with the surrounding area; the proposed development standards for 18 subarea C are inconsistent with the proposed site plan submitted; Solid Waste requirement 19 regarding location of containers is still pending; and a boundary agreement with the neighboring 20 property to the west has not been obtained. 21 22 Rob Baldwin, with Baldwin Associate at 3404 Elm Street 4B Dallas, Texas, stated they brought 23 this request before this Commission again, since they were able to secure additional parking 24 spaces. The building height is the same as submitted in January. The two items that are really 25 outstanding are solid waste and the five foot boundary agreement. 26 27 Commissioner Beck questioned Baldwin on what made the applicant think they would approved 28 now. Baldwin stated that they believe that it is a project that makes sense for this area. 29 30 Applicant, Rodney King with EDR at 999 Shady Grove Road Ste. 600, Memphis, Tennessee 31 presented a presentation regarding this item. King identified the proposed area that will be used 32 for employee parking. Commissioner Beck questioned what is driving the height. King stated it 33 has to do with density and economical. Commissioner Rozell questioned how many purposed 34 parking spaces are in the plan. King confirmed 260 spaces. Commissioner Rozell questioned the 35 9 parking spaces to the east. King stated those technically belong to this site; however, they are 36 being used by an adjacent property owner. Commissioner Hudspeth questioned what controls they 37 will have over the leasing process. King stated that they would be required to follow the housing 38 laws and that they cannot discriminate on who lives with who. Commissioner Ellis questioned the 39 parking that is located on Bryan Street. King stated those spaces are currently used for Voertman's 40 employee parking and where the owner of Voertman's leases spots to the public. 41 42 The following individuals spoke during the Public Hearing: 43 • Donna Morris, 918 W. Oak Street, Denton, Texas. Opposed this request. 44 • Kim McKibben, 1306 W. Hickory Street, Denton, Texas. Opposed this request. 45 • Mary Anderson, 924 W Oak Street, Denton, Texas. Opposed this request. :l 1 • Kale Ward, 1314 W. Hickory Street, Denton, Texas. Spoke on behalf of Brent Erskin, 2 owner of Voertman's. Supports this Request 3 • Randy Hunt, 722 W. Oak Street, Denton, Texas. Opposed this request. 4 • Erin Knight, 1314 W. Hickory Street, Denton, Texas. Supports this request. 5 • Anna Pechening, 224 Fry Street Apt. 13, Denton, Texas. Opposed this request. 6 • Jay West 2606 Shelby Avenue Apt. 103, Dallas, Texas. Supports this request. 7 • Patrice Lyke, 1109 Egan Street, Denton, Texas. Opposed this request. 8 • Erin Piper, 1006 W Hickory Street, Denton, Texas. Oppose this request. 9 10 The following individuals did not wish to speak: 11 12 • Laurie Weller, 2297 Wood Hollow Rd, Denton, Texas. Opposed this request. 13 • Jennifer Lane, 1526 Willow Wood Street, Denton, Texas. Opposed this request. 14 • Kathleen Barnett, 607 Pearl Street, Denton, Texas. Opposed this request. 15 • William Barnett, 607 Pearl Street, Denton, Texas. Opposed this request. 16 17 Chair Strange closed the Public Hearing. DeCurtis clarified the Commissioner that recused himself 18 was Mr. Steve Sullivan, due to his wife having an interest of business with the seller of the 19 property. 20 21 Commissioner Beck commented that he agrees Denton needs more student housing, but not at 22 this spot. Chair Strange stated he is against the denial and that if there is a change by a couple of 23 feet for this project or any other project could be built without anyone's approval. 24 25 Commissioner Larry Beck motioned, Commissioner Margie Ellis seconded to deny this request. 26 Motion carried (4-1) Commissioner Larry Beck "aye", Commissioner Andrew Rozell "aye", 27 Commissioner Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". Chair Jim Strange 28 "nay" 29 30 B. Hold a public hearing and consider making a recommendation to City Council regarding a 31 request for an Alternative Environmentally Sensitive Area for the Ryan Meadows Addition, Phase 32 2. The approximately 37.35 acre subject property is generally located on the south side of Ryan 33 Road, approximately 2,000 feet east of Country Club Road. (AESA16-0002, Ryan Meadows Phase 34 2, Mike Bell) 35 36 This item was heard before Public Hearing item 4A. Chair Strange opened the Public Hearing. 37 Applicant, Thomas Fletcher, 5750 Genesis Court Suite 200, Frisco, Texas, stated he is the engineer 38 for this item. Chair Strange questioned how much time and cost they have spent complying with 39 Environmentally Sensitive Area (ESA) mobility plan. Fletcher stated with the 25 trees that are 40 going to be planted between 12 to 15 thousand dollars. Fletcher also stated with the road that is 41 required by the City potentially an additional 10 to 15 thousand dollars. 42 43 Commissioner Hudspeth stated he would like to motion approval of this item based on staffs 44 conditions: 1.The total disturbed area shall not exceed 0.45 acres and areas to be disturbed shall 45 be consistent with the Alternative ESA Plan. 2. Twenty-five trees, of three inches diameter at 46 planting, must be planted to mitigate for the removal of the ESA's. Location for the tree planting 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 should be consistent with the Alternative ESA Plan. 3. All disturbed areas shall be re -vegetated using native plants. Commissioner Gerard Hudspeth motioned, Commissioner Larry Beck seconded to approve this request based on staff's conditions as follows: 1.The total disturbed area shall not exceed 0.45 acres and areas to be disturbed shall be consistent with the Alternative ESA Plan. 2. Twenty-five trees, of three inches diameter at planting, must be planted to mitigate for the removal of the ESA's. Location for the tree planting should be consistent with the Alternative ESA Plan. 3. All disturbed areas shall be re -vegetated using native plants.. Motion approved (6-0) Commissioner Larry Beck "aye", Commissioner Steve Sullivan "aye", Commissioner Andrew Rozell "aye", Chair Jim Strange "aye", Commissioner Margie Ellis "aye", and Commissioner Gerard Hudspeth "aye". Commissioner Sullivan returned to the Regular Meeting. Commissioner Rozell thanked staff for getting minutes back in a timely manner. Commissioner Rozell stated he would like to have discussion regarding Environmentally Sensitive Areas (ESA). Chair Strange stated he would like to have staff take a look at the ESA and what is required for the Mobility plan. There was no further discussion. Chair Strange adjourned the Regular Meeting at 9:03 p.m. 11 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SUBCHAPTER 35.7.5, TIIE FRY STREET OVERLAY DISTRICT, TO CREATE, A NEW SUBAREA AND DEVELOPMENT STANDARDS FOR A MIXED USE DEVELOPMENT ON APPROXIMATELY 1.75 ACRES OF LAND, GENERALLY LOCATED NORTH OF HICKORY STREET, SOUTH OF OAK STREET, APPROXIMATELY 200 FEET EAST OF AVENUE B AND APPROXIMATELY 125 FEET WEST OF FRY STREET, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING FOR A PENALTY IN TIIE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE, SAVINGS CLAUSE, AND AN EFFECTIVE DATE. (Z16 0007) WHEREAS, the Applicant, 902 Avenue C LLC, has requested an amendment to Subchapter 35.7.5, the Fry Street Overlay District, to create a new sub -district and development standards for a mixed use building on approximately 1.75 acres of land generally located North of Hickory Street, South of Oak Street in between Avenue B and Fry Street and more particularly described in Exhibit A, attached hereto and incorporated herein by reference (hereinafter, the "Property"); and WIEREAS, the applicant held neighborhood meetings on September 29, 2015, November 12, 2015, and May 10, 2016 for property owners and the general public to receive information and ask questions concerning amendments to the Fry Street Overlay District and proposed development on the Property; and WHEREAS, on October 26, 2016, 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 denial (4-1) of the proposed amendment; and WHEREAS, on December 6, 2016, the City Council conducted a public hearing as required by law, and three-fourths (3/4) of all members of City Council find 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 City Council of the City of Denton, in considering the application for an amendment to Subchapter 35.7.5, the Fry Street Overlay District, to create a new sub -district and development standards for a mixed use building, have determined by an affirmative three-fourths (3/4) vote of all members 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 amendment 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 I . The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The amendments to Subchapter 35.7.5, the Fry Street Overlay District, as presented in Exhibit B and incorporated by reference herein, are hereby adopted as shown. SECTION 3. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of the provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 4. 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 5. 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 6. 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 '2016. CHRIS WATTS, MAYOR ATTEST: JENNIFER WAL,TERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Tract 1: That property commonly referred to as 1314 West Hickory Street, Denton, Texas 76201, Denton County. More particularly described as follows: All that certain tract or parcel of land lying and being situated in the E. Puchalski Survey Abstract 996 City of Denton, Denton County, Texas. Being part of Lots 1 & 2 and 7& 8 Block 22 College Addition, according to the plat recorded in Volume 44, Page 600, Deed Records of Denton County, "Texas, and being the same tract as described in a deed from Dale Seely and Charlie Seely to Voertman's Incorporated on the 15`h day of May, 1967, recorded in Volume 551, Page 105, Deed Records; Same tract as described in a deed from Theta Chi Education Foundation of Denton, Texas, Inc., to Voertman's, Inc., September 1965, recorded in Volume 529 Page 629, Deed Records; The same tract as described in a deed from Frances Williams to Voertman's Inc., on the 20`' day of November, 1956, recorded in Volume 427. Page 158, Deed Records: The same tract as described in deed from Paul R. Voertman to Voertman's Inc., on the 25`' day of May, 1978, recorded in Volume 892 Page 737, Deed Records: The same tract as described in deed from Paul R. Voertman to Voertman's Inc., on the 25`' day of Mav, 1978 recorded in Volume 892, Page 739, Deed Records; The same tract as described in a deed from P. W. Voertman to Voertman's, Inc., on the 15`' day of November, 1962, recorded in Volume 487, Page 553, Deed Records and the same tract as described in a deed from Paul Voertman to Voertman's, Inc., on the 30th day of May, 1978, recorded in Volume 895, Page 429, Deed Records of Denton County, Texas, and being more particularly described as follows: Beginning at an "x" cut in concrete on the North boundary line of West Hickory Street at the Southeast corner of Seely to Voertman tract recorded in Volume 551, Page 105, Deed Records and the Southwest comer of a tract from William Marvin Loveless to Ralph E. Cordroy on the 18`' day of June, 1977, recorded in Volume 1150, Page 187, Deed Records, said corner being South 01 degrees 04 minutes 47 seconds West 0.33 feet from the Southeast and Southwest corner of Block Buildings: "Thence North 88 decrees 55 minutes 17 seconds West with the North boundary Line of West Hickory Street passing at 20.0 feet the Southeast corner of Lot 8, Block 22 of College Addition and continuing in all a distance of 105.53 feet to an "x" in concrete at the Southeast corner of a tract from Clark Bass to Paul R. Voertman, et al, on the 11th day of August, 1965, recorded in Volume 527, Page 169, Deed Records of Denton County, Texas. "Thence North 01 degrees 04 minutes 43 seconds East with the Fast boundary Line of said tract a distance of 85.0 feet to a corner. Thence North 88 degrees 55 minutes 17 seconds West a distance of 43.83 feet to a corner: Thence South 01 degree 04 minutes 43 seconds West a distance of 85.0 feet to an "x" in concrete on the North boundary Line of Hickory Street at the Southwest corner at said Bass to Voertman tract recorded in Volume 527, Page 469, Deed Records. Thence North 88 degrees 55 minutes 17 seconds West, with the North boundary Line of Hickory Street a distance of 69.0 feet to an "x" in concrete at the Southeast corner of a tract from C.D. Boyer, et al, to Paul P. Voertman, et al, on the 241h day of March, 1966, recorded in Volume 536, Page 164, Deed Records. Thence North 01 degrees 04 minutes 43 seconds East with the East boundary Line of said Lot a distance of 160.0 feet to an iron pin; Thence North 88 degrees 55 minutes 17 seconds West a distance of 14.0 feet to the Southeast corner of Lot 3, Block 22 of College Addition; Thence North 01 degrees 04 minutes 43 seconds East with the East boundary Line of Lot 3 a distance of 160.0 feet to an iron pin at the Northeast corner of Lot 3 on the South boundary Line of W. Oak Street; Thence South 88 degrees 55 minutes 17 seconds East with the North boundary I.,ine of Block 22 and the South boundary Line of W. Oak Street a distance of 209.36 feet to an iron pin being 3.0 feet away from an iron pin at the Northeast corner of Lot 1; Thence South 01 degree 04 minutes 43 seconds West a distance of 160.0 feet to an iron pin on the South corner of Lot 1; Thence South 88 degrees 55 minutes 17 seconds East a distance of 3.0 feet to an iron pin at the Southeast corner of said Lot 1 and the Northeast corner of Lot 8, Block 22; Thence South 01. degrees 04 minutes 43 seconds West a distance of 90.0 feet to a corner at the Northwest corner of said Seely to Voertman's, Inc., a tract recorded in Volume 551, Page 105, Deed Records; Thence South 88 degrees 55 minutes 17 seconds East a distance of 30.0 feet to an iron pin in a Building Wall; Thence South 01 degree 04 minutes 43 seconds West with the wall between buildings a distance of 70.0 feet in the point of beginning and containing 1.4442 acres of Land, more or less. Tract 2: Field Notes to 0.0031 acre in the E. Puchalski Survey, Abstract 996, City of Denton, Denton County, Texas. All that certain tract or parcel of Land lying and being situated in the E. Puchalski Survey, Abstract 996, City of Denton, Denton County, Texas being part of Lot 3, Block 22 of College Addition according to the plat recorded in Volume 44, Page 600, Deed Records of Denton County, Texas and being more particularly described as follows: Commencing at an iron pin at the Southeast corner of Lot 3, Block 22 of College Addition; Thence, North 01 degrees 04 minutes 43 seconds East with the East boundary Line of Lot 3 a distance of 14.34 feet to a point in the South line of a one story block building at the point of beginning; Thence North 89 degrees 23 minutes 06 seconds West with the South Line of said building a distance of 2.02 feet to the Southwest corner of said building; Thence North 00 degrees 36 minutes 54 seconds East with the West wall of said building a distance of 60.02 feet to the Northwest corner of said building; Thence South 89 degrees 23 minutes 06 seconds East with the North Line of said building a distance of 2.50 feet to a point on the East boundary Line of Lot 3; Thence South 01 degrees 04 minutes 43 seconds West with the East boundary Line of Lot 3 through said buildings a distance of 60.02 feet to the point of beginning. "Tract 3: Tract 4: Tract 5: Field Notes to 0.2204 acre in the E. Puchalski Survey, Abstract 996, City of Denton, Denton County, Texas. All that certain tract or parcel of land lying and being situated in the E. Puchalski Survey, Abstract 996, City of Denton, Denton County, Texas, being part of Lots 6 & 7, Block 22 of College Addition, according to the plat recorded in Volume 44, Page 600, Deed Records of Denton County, Texas, and being the same tract as described in a deed from C.D. Boyer, et al to Paul R. Voertman et al, on the 24"' day of March, 1966, recorded in Volume 536, Page 164, Deed Records of Denton County, Texas and being more particularly described as follows; Beginning at an iron pin at the Southeast corner of said Boyer to Voertman tract, Volume 536, Page 164, Deed Records, same being the Southwest corner of a tract from Theta Chi Education Foundation of Denton, Texas Inc., to Voertman's Inc., September, 1965, recorded in Volume 525, Page 625, Deed Records; Thence North 88 degrees 55 minutes 17 seconds West with the North boundary Line of W. Hickory Street a distance of 60.0 feet to an iron pin at the Southwest corner of a tract deeded by Robert Weldon Knight Trustee to Checkerboard Properties, Inc., on the 7"' day of May, 1968 recorded in Volume 568, Page 425, Deed Records of Denton County, Texas; "Thence North 01 degrees 04 minutes 43 seconds East with the East boundary Line of said tract a distance of 160.0 feet to an iron pin; Thence South 88 degrees 55 minutes 17 seconds East a distance of 60.0 feet to an iron pin; Thence South 01 degrees 04 minutes 43 seconds West a distance of 160.0 feet to the point of beginning and containing 0.2204 acre of land. Tract 6: Field Notes to 0.0855 acre in the E. Puchalski Survey, Abstract 996, City of Denton, Denton County, Texas. All that certain tract or parcel of Land lying and being situated in the E. Puchalski Survey, Abstract 996, City of Denton, Denton County, Texas being parts of Lots 7 & 8, Block 22 of College Addition, according to the plat recorded in Volume 44, Page 600, Deed Records of Denton County, Texas and being the same tract as described in a deed from Clark Bass to Paul R. Voertman on the I1"' day of August, 1965, recorded in Volume 527, Page 469, Deed Records of Denton County, Texas, and being more particularly described as follows; Beginning at an "x" in concrete walk on the North boundary Line of Hickory Street at the Southeast corner of said Bass to Voertman tract, being the Southwest corner of a tract described from Paul Voertman to Voertman's Inc., on the 30"' day of May, 1978, recorded in Volume 895, Page 429, Deed Records, being North 88 degrees 55 minutes 17 seconds West 85.53 feet from the Southeast corner of Lot 8, Block 22 of College Addition; Thence North 88 degrees 55 minutes 17 seconds West with the South boundary Line of Block 22 on the North boundary Line of W. Hickory Street a distance of 43.83 feet to an "x" in concrete; Thence North 01 degrees 04 minutes 43 seconds East a distance of 85.0 feet to a corner; Thence South 88 degrees 55 minutes 17 seconds East a distance of 43.83 feet to a corner; Thence South 01 degrees 04 minutes 43 seconds West a distance of 85.0 feet to the point of beginning and containing in all 0.0855 acres. 117�'117iiG3 There is hereby established a special zoning overlay district to be known as the Fry Street District. The Fry Street District is defined as that area approximately 12.42 acres in size which is bounded by Welch Street to the east, Oak Street to the North, rive B to the northwest, live A to the southwest, Mulberry Street to the south, and Hickory to the southwest. All buildings, structures, sites, and properties within the designated district shall be subject to the restrictions, limitations, and provisions of the Fry Street District regulations as provided for in section 35.7.5, and its subsections. The district is further divided into subareas A, B and C, as depicted in Exhibit 35.7.5.A. Each subarea is subject to distinct regulations, where noted herein. Exhibit 35.7.5.A '.. Fry b4eet (herby UMnH ' Suhrea B r 14ubA—A RM Subarea C 35.7.5.2 Purpose and Intent The purpose and intent of this overlay district is to promote the public peace, safety, cleanliness, and general welfare for community members and patrons of the Fry Street District, by providing for regulations on off-street and remote parking, the location of solid waste containers, and the regulation of signs, setbacks, and residential and commercial density. 35.7.5.3 Multi -Family Uses Multi -family residential uses shall be allowed within any zoning district within the Fry Street District. 35.7.5.4 Solid Waste Containers A. Location. Solid waste containers in the Fry Street District shall be located off the street in centralized locations, to the rear of buildings served by each container, and shall be screened with devices made of masonry or wood. B. Consolidation. Each owner, occupant, tenant, or lessee of any business, commercial, or institutional property, or other property not served by residential solid waste collection service, shall contract with the City for shared or consolidated commercial solid waste collection and disposal services, unless otherwise required by ordinance. C. Subarea B shall provide adequate area to accommodate two (2) trash compactors to serve the Subarea, in a location specified by the approved site plan for the subarea. D. In Subdistrict C, solid waste containers must be located within the building and rolled out on collection days to facilitate garbage collection. 35.7.5.5 Subarea A Development Standards The provisions of Subchapter 14 shall apply to the Subarea 1, except as follows: A. Remote parking. Remote off-street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off-street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non-residential, including restaurant, retail, private club, on -premises sale of beer and/or wine: One space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. C. Multi-farnily residential. Multi -family residential development in Subarea A shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one-fourth (1.25) space 2. Units with 1 bedroom: One and one-half (1.50) space 3. Units with 2 or more bedrooms: One space for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom The provisions of Subchapter 5 shall apply to Subarea A, except as modified for each subarea below: A. Minimum lot area: 1. Residential uses: Six thousand (6,000) square feet. 2: Non-residential uses: No minimum lot area. 3. Mixed uses, including residential: No minimum lot area. B. Minimum lot depth for residential uses: One hundred (100) feet. C. Minimum lot width for residential uses: Sixty (60) feet. D. Maximum building coverage: 1. Residential uses: 50% 2. Non-residential uses: 100% 3. Mixed -uses that include residences: 80% E. Floor / -Area Ratio: 1. Residential uses: 3 : 1 2. Non -Residential uses: 2: 1 3. Mixed -uses that include residential: 3 : 1, provided that residential uses shall comprise the top story of any structure F. Required Yards: 1. Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non -Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed -uses that include residential: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet for any floor that includes residences G. Height Regulations. No structure may exceed 3 stories. Overall building height, including IIVAC equipment, roof systems, vent stacks, chimneys, etc., may not exceed 45 feet in height. H. Residential densities. The maximum number of apartment units that can be constructed on a site, while observing regulations including floor area ratio, building coverage, parking, height and setbacks, shall require a minimum land area in accordance with the following schedule: a. Efficiency: 1,000 square feet b. One -bedroom apartment: 1,200 square feet C. Each additional bedroom per apartment: 300 square feet 35.7.5.6 Subarea B Development Standards The provisions of Subchapter 14 shall apply to Subarea B, except as follows: A. Remote parking. Remote off-street parking to serve a building or use within the Fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off-street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non-residential, including restaurant, retail, private club, on -premises sale of beer and/or wine: One space for each four hundred (400) square feet of floor area or one (1) space for each six (6) seats under maximum seating arrangements, whichever is greater. C. Multi -family residential -- Multi -family residential development in Subarea B shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one-fourth (1.25) space 2. Units with 1 bedroom: One and one-half (1.50) space 3. Units with 2 or more bedrooms: One space for each bedroom 4. Fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom The provisions of Subchapter 5 shall apply to the Subdistrict B, except as modified for each subarea below: A. Minimum lot area: 1. Residential uses: Six thousand (6,000) square feet. 2. Non-residential uses: No minimum lot area. 3. Mixed uses, including residential: No minimum lot area. B. Minimum lot depth: for residential uses: One hundred (100) feet. C. Minimum lot width for residential uses: Sixty (60) feet. D. Maximum building coverage: 1. Residential uses: 50% 2. Non-residential uses: 100% 3. Mixed -uses that include residences: 80% E. Floor /Area Ratio: 1. Residential uses: 3 : 1 2. Non -Residential uses: 2: 1 3. Mixed -uses that include residential: 3 : 1, provided that residential uses shall comprise the top story of any structure F. Required Yards: 1 Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non -Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed -uses that include residential: Front: Minimum of 30 feet- from centerline of street. Side: No required yard Rear: Minimum of 10 feet for any floor that includes residences G. Height Regulations: No habitable structure may exceed 4 stories, with an overall building height of 55 feet, including HVAC equipment, roof systems, vent stacks, chimneys, etc. H. Residential Density: The maximum residential density of Subarea B shall be 72.5 units per acre, where one (1) bedroom is equivalent to one-half (0.5) of a residential unit. 1. Parking Structures: No parking structure may exceed 5 stories, or 60 feet in height. Mechanical equipment, including HVAC equipment, roof systems, vent stacks, and satellite dishes, may be mounted on the top story of parking structures, provided they are not visible from any adjacent public right-of-way. J. Construction shall substantially conform to the site plan shown at Exhibit 35.7.5.8. K. The following requirements apply to Subarea B, in addition to any other requirements provided by code or ordinance: 1. Residential Units fronting Welch Street shall incorporate sloped roof pitches. 2. Parking Structures will be provided with a facade designed to mimic the Adjacent buildings within the subarea, so as to assist in integrating the structure into the balance of the subarea, and to assist in camouflaging the structure from the public right-of-way. 3. Each principal facade or massing area shall incorporate at least two (2) of the features identified on the image board (Exhibit 35.7.5.E.), including but not limited to: a. Store front design b. Awnings C. Stoops on the street level d. Accent bay windows e. Cornice details f. Brick facades with flat roof lines g. The incorporation of a bench and street tree in front of the building h. Arch details 1. Shutters. 35.7.6.7 Subarea C Development Standards The provisions of Subchapter 14 shall apply to Subarea C, except as follows: A. Remote parking. Remote off-street parking to serve a building or use within the fry Street District may be provided on a tract or parcel of land other than on which the building or use being served is located, provided that the required off-street parking space shall be within one thousand (1,000) feet of the building or use being served and shall provide convenient pedestrian access to the building or use being served. B. Non-residential, including restaurant, retail, private club, on -premises sale of beer and/or. wine: One space for each four hundred (400) square feet of floor area. C. Multi -family residential: Multi -family residential development in Subarea C shall be required to provide parking according to the following schedule: 1. Efficiency units: One and one-fourth (1.25) space 2. Units with 1 bedroom: One and one-half (1.50) space 3. Units with 2 or more bedrooms: 0.76 spaces for each bedroom 4. fraternities, sororities, boarding and lodging houses. One (1) space for each bedroom The provisions of Subchapter 5 shall apply to the Subdistrict C, except as modified below: A. Minimum lot area: 1. Residential uses: Six thousand (6,000) square feet. 2. Non-residential uses: No minimum lot area. 3. Mixed uses, including residential: No minimum lot area. S. Minimum lot depth for residential uses: One hundred (100) feet. C. Minimum lot width for residential uses: Sixty (60) feet. D. Maximum density: 86 dwelling units per acre, where one (1) bedroom is equivalent to one-half (0.5) of a residential unit. Maximum building coverage: 1. Residential uses: 70% 2. Non-residential uses: 100% 3. Mixed -uses that include residences: 81% la. Floor / Area Ratio: 1. Residential uses: 3 :1 2. Non -Residential uses: 2: 1 3. Mixed -uses that include residential: 3 : 1, provided that residential uses shall comprise the top story of any structure G. Required Yards: 1. Residential uses: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 10 feet 2. Non -Residential uses: Front: Minimum of .30 feet from centerline of street. Side: No required yard Rear: No required yard 3. Mixed -uses that include residential: Front: Minimum of 30 feet from centerline of street. Side: No required yard Rear: Minimum of 5 feet for any floor that includes residences 11. Height Regulations: 1. No habitable structure may exceed 5 stories, with an overall. building height of 62.05 feet, including HVAC equipment, roof systems, vent stacks, chimneys, etc. 2. No parking structure may exceed 6 stories, or 69.2 feet in height. 1. Parking Structures: Mechanical equipment, including HVAC equipment, roof systems, vent stacks, and satellite dishes, may be mounted on the top story of parking structures, provided they are not visible from any adjacent public right-of-way. J. Construction shall substantially conform to the site plan shown at Exhibit 35.7.5.F. K. The following requirements apply to Subarea C, in addition to any other requirements provided by code or ordinance: 1. Parking Structures will be internal to the building or provided with a facade designed to mimic the adjacent buildings within the subarea, so as to assist in integrating the structure into the balance of the subarea, and to assist in camouflaging the stricture from the public right-of-way. 2. Buffers in Subarea C must comply with Exhibit 35.7.5.1. 3. Each principal facade or massing area shall incorporate at least two (2) of the features identified on the image board (Exhibit 35.7.5.11.), including but not limited to: a. Store front design b. Awnings C. Stoops on the street level d. Accent bay windows e. Cornice details f. Brick facades with flat roof lines g. The incorporation of a bench and street tree in front of the building h. Arch details 1. Shutters. The provisions of Chapter 33 of the Denton Code of Ordinances, as hereafter amended, superseded or replaced, shall apply, except as modified for each subarea below: A. Prohibited signs. Ground and monument signs are prohibited within Subarea A, but may be permitted in Subareas B and C, consistent with the limitations of 35.7.5.8.B.2 below. B. Allowed signs 1. Wall signs. Wall signs in the Fry Street District may be permitted, subject to the following additional restrictions and limitations: a. Mounting and Orientation. All signs in Subarea .A of the Fry Street District shall be wall mounted signs, mounted parallel with, and not perpendicular to, the face of the wall upon which the sign is secured. Wall signs in Subareas B and C may be mounted perpendicular to building faces, provided they do not encroach into public rights-of-way. b. Residential — Subarea .ik only. Signs associated with residential uses in subarea A of the Fry Street District Signs shall be limited to the purpose of indicating the name of the residential development (apartment, condominium, etc.) or for informational or regulatory purposes. c. Mixed -uses that include residential — Subarea A only. Signs associated with mixed uses in subarea A of the Fry Street District shall be allowed only on those stories of a building that include non-residential uses. 2. Monument signs — Subareas B and C only. Monument signs, not exceeding 15 square feet of effective area, may be permitted at entrances to mixed use developments, as depicted in the site plan for Subarea B (Exhibit 35.7.5.B) and the site plan for Subarea C (Exhibit 35.7.5.F) 3. Design — Subareas B and C. Signs in Subareas B and C shall be in a style and size consistent with the conceptual designs provided in Exhibit 35.7.5.0. •' r • + • • "' „ •MIRTMIMOTITIM Landscaping. Subarea B shall provide landscaping as depicted in Exhibit 35.7.5.D and the landscaping for Subarea C shall comply with Exhibit 35.7.5.G. • R R Upon request of the applicant, the Director of Planning and Development, or his designee, may authorize minor amendments to the site or landscape plan so long as such minor amendments do not change the land use or substantially change the character, development standards, or design of the development as shown on the approved site or landscape plans. For purposes of this provision, a "substantial change" shall mean a change which will increase the number of proposed dwelling units or bedrooms, height, or number of stories; or decrease the amount of required off-street parking spaces. The Director of Planning and Development, or his designee, shall make such authorization only in writing- and such document shall be placed in the ordinance file governing the specific plan. 35.7.5.11. Conflict with Other Regulations To the extent the provisions of this article conflict with any other ordinances of the City of Denton, the provisions of this article shall control. All provisions of other City of Denton ordinances not in conflict with this article shall remain in full force and effect. ii Mxx 1 91%, 1 #Am# 1 ■ 1% %no %W I HCKMSTK"EHLWDEDEUVAT i fMUFOMMIMIE DRWI 7Z I w ARCH DETAIL RRICKFACADE STORE FRONT DETAIL AWNING DETAIL RESIDENTIAL WJ SLOPED RGOF TO THE EAST OF WELCH SHUTMRS IMAGEBOARD c m z 0 Z c> OAK STREET r L ----------- i ' SETBACK 10 -F'f%6060i�LINE IST FLOOR /SITE PLAN TRACT OBTAINED FOR ADDITIONAL MMESSCUCRULED OFF STREET PAR)ONG (I EXISTING PAWNG SPACES, MODIFICATION NOT PLANNED) Muffikaftom W FI LU c m z 0 Z c> OAK STREET r L ----------- i ' SETBACK 10 -F'f%6060i�LINE IST FLOOR /SITE PLAN TRACT OBTAINED FOR ADDITIONAL MMESSCUCRULED OFF STREET PAR)ONG (I EXISTING PAWNG SPACES, MODIFICATION NOT PLANNED) Muffikaftom W LU IN co m m 2 c m z 0 Z c> OAK STREET r L ----------- i ' SETBACK 10 -F'f%6060i�LINE IST FLOOR /SITE PLAN TRACT OBTAINED FOR ADDITIONAL MMESSCUCRULED OFF STREET PAR)ONG (I EXISTING PAWNG SPACES, MODIFICATION NOT PLANNED) Muffikaftom I I 11 Dig Ib i�a ly, WEST OAK SIREF. 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