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2013-322ORDINANCE NO, 2013-322 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, REGARDING AN INTERLOCAL AGREEMENT BETWEEN THE DENTON COUNTY TRANSPORTATION AUTHORITY ("DCTA") AND THE CITY OF DENTON, TEXAS ("CITY"), TO EVIDENCE THE CITY'S AND DCTA'S AGREEMENT REGARDING THE PLANTING OF REPLACEMENT TREES BY DCTA 1N RELATION TO THE COMMUNITY ENHANCEMENT PROJECT IN THE PROJECT AREA ALONG AND/OR WITHIN THE TRAIL EASEMENT SO THAT DCTA CAN MEET THE CITY OF DENTON DEVELOPMENT CODE'S TREE MITIGATION REQUIREMENTS RELATING TO DEVELOPMENT OF THE DCTA BUS OPERATION AND MAINTENANCE FACILITY, AND DECLARING AN EFFECTIVE DATE. WHEREAS, DCTA owns and is developing the Property (as defined below) for the DCTA's Bus Operations and Maintenance Facility ("the Facility"); and WHEREAS, in order to develop the Facility in the manner most effective for DCTA and the public served by DCTA, DCTA has removed from the Property approximately 846 Inches Diameter Breast Height (dbh) of trees, which the City has determined to be Protected Trees; and WHEREAS, pursuant to DDC §35.13.7.A, DCTA is required to either fully mitigate the removal of Protected Trees as part of the development of the Property by planting Replacement Trees in a quantity that substantially equals the number of Caliper Inches of Protected Trees removed by DCTA, or pay funds into the City Tree Fund; and WHEREAS, the area of the Property is insufficient to accommodate (i) the improvements to be constructed in relation to development of the Facility,(ii) new trees and other landscaping required by City pursuant to DDC §35.13.7.C, and (iii) the planting of 1,692 Caliper Inches of Replacement Trees on the Property; and WHEREAS, in accordance with City's Development Review Fee Schedule, DCTA must pay $211,500 to the City Tree Fund if DCTA were to plant no Replacement Trees at any location; and WHEREAS, DCTA has determined that it is able to plant approximately 148 Caliper Inches of Replacement Trees on the Facility Property, leaving a balance of 1,544 Caliper Inches to be mitigated; and WHEREAS, DCTA has considered, but not yet authorized commencement of, the Community Enhancement Project; and WHEREAS, if DCTA did not implement the Community Enhancement Project, the City could use funds to pay for the costs of planting trees within the Project Area, which includes a portion of City's Hike and Bike Trail located within the Trail Easement; and WHEREAS, Chapter 791 of the Texas Government Code ("the Interlocal Cooperation Act") authorizes local governments to enter into agreements to perform governmental functions and services which both entities are legally authorized to perform individually; and WHEREAS, DCTA and City are each a"local government" as defined by the Interlocal Cooperation Act and are authorized to enter this Agreement pursuant to the Interlocal Cooperation Act; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1, The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference and found to be true. SECTION 2. The Interlocal Agreement provides the evidence of the City's and DCTA's agreement regarding the planting of trees by DCTA in relation to the Community Enhancement Project in the Project Area along and/or within the Trail Easement so that DCTA can meet the City of Denton Development Code's Tree Mitigation requirements relating to development of the Facility on the Property. SECTION 3. The City Manager is authorized to execute an Interlocal Agreement with the DCTA. SECTION 4. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of.other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 7. 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 d� day of ���°p �, 2013. r� ,.,� �� ��� �" r �„ ' � , �'�. v� � � �''� 1� �� A ���C�� ..__—,�w--� �� .n.�___ _ �[��)[.�G � , MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY:�� ���"' �����..��������.����� APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ��� ��.,, �� �� _�.�.., BY:��_�.�,._. -�� ��� � �_ �H � ��...�^ ° � �. � ... STATE OF TEXAS § INTERLOCAL COOPERATION AGREEMENT § REGARDING TREE PROJECT COUNTY OF DENTON § This Interlocal Cooperation Agreement (the "Agreement") is made and entered as of the Effective Date between Denton County Transportation Authority ("DCTA") and the City of Denton ("City")(collectively referred to as the "Parties"), acting by and through their authorized representatives. RECITALS WHEREAS, DCTA owns and is developing the Property (as defined below) for the DCTA's Bus Operations and Maintenance Facility ("the Facility"); and WHEREAS, in order to develop the Facility in the manner most effective for DCTA and the public served by DCTA, DCTA has removed from the Property approximately 846 Inches Diameter Breast Height (dbh) of trees, which the City has determined to be Protected Trees; and WHEREAS, pursuant to DDC §35.13.7.A, DCTA is required to either fully mitigate the removal of Protected Trees as part of the development of the Property by planting Replacement Trees in a quantity that substantially equals the number of Caliper Inches of Protected Trees removed by DCTA, or pay funds into the City Tree Fund; and WHEREAS, the area of the Property is insufficient to accommodate (i) the improvements to be constructed in relation to development of the Facility,(ii) new trees and other landscaping required by City pursuant to DDC §35.13.7.C, and (iii) the planting of 1,692 Caliper Inches of Replacement Trees on the Property; and WHEREAS, in accordance with City's Development Review Fee Schedule, DCTA must pay $211,500 to the City Tree Fund if DCTA were to plant no Replacement Trees at any location; and WHEREAS, DCTA has determined that it is able to plant approximately 148 Caliper Inches of Replacement Trees on the Facility Property, leaving a balance of 1,544Caliper Inches to be mitigated; and WHEREAS, DCTA has considered, but not yet authorized commencement of, the Community Enhancement Project; and WHEREAS, if DCTA did not implement the Community Enhancement Project, the City could use funds to pay for the costs of planting trees within the Project Area, which includes a portion of City's Hike and Bike Trail located within the Trail Easement; and WHEREAS, Chapter 791 of the Texas Government Code ("the Interlocal Cooperation Act") authorizes local governments to enter into agreements to perform governmental functions and services which both entities are legally authorized to perform individually; and PAGE 1 � AUTHOR TY ND C TY�OI' DENTON R�GARDI G TR� PRO ECT OUNTY TRANSPO rv.���� �. p��� � RTATION (kb1:10/10/13:60016) WHEREAS, DCTA and City are each a"local government" as defined by the Interlocal Cooperation Act and are authorized to enter this Agreement pursuant to the Interlocal Cooperation Act. NOW THEREFORE, for and in consideration of the promises and the mutual covenants set forth in this Agreement, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Article I Purpose The purpose of this Agreement is to evidence the Parties' agreement regarding the planting of trees by DCTA in relation to the Community Enhancement Project in the Project Area along and/or within the Trail Easement so that DCTA can meet the City of Denton Development Code's Tree Mitigation requirements relating to development of the Facility on the Property. Article II Definitions For purposes of this Agreement, the following terms, phrases and words shall have the meanings given herein unless the context clearly indicates otherwise: "Caliper" and "Caliper Inches" shall have the meaning and be determined as set forth in DDC §35.23.2. "dbh" shall have the meaning to be determined as set forth in DDC §35.23.2 "City" means the City of Denton, a Texas home rule municipality. "City's Hike and Bike Trail" means the pedestrian and bicycle trail constructed by DCTA and owned, operated, and maintained by City within the Trail Easement. "City Tree Fund" means the City fund established by City pursuant to enactment of DDC §35-13-7.A.7.e. "DART" means Dallas Area Rapid Transit, a regional transportation authority created pursuant to Chapter 452 of the Texas Transportation Code. "DDC" means the Denton Development Code, as amended, as set forth in Chapter 35 of the Code of Ordinances of the City of Denton, Texas. "DCTA" means the Denton County Transportation Authority, a coordinated county transportation authority created pursuant to Chapter 460 of the Texas Transportation Code. PAGE 2� INTERLOCAL COOPCRATION AGREEMENT BETWEEN DENTON COUNTY TRANSPORTATION AUTHORITY AND CITY OF DENTON REGARDING TREE PROJECT (kb I:10/ 10/ 13:60016) "DCTA Rail Corridor" means the former Missouri-Kansas-Texas rail corridor from Mile Post 742.42 in the City of Carrollton, Texas, to Mile Post 721.53 in the City of Denton, Texas, which is presently owned by DART within which DCTA is operating, and maintaining a public rail transportation system pursuant to that certain Transportation and Access Agreement and Easement dated and effective May 25, 2010, between DCTA and DART ("the DART Agreement"). "Effective Date" means the last date this Agreement bears the signatures of authorized representatives of each of the Parties. "Expiration Date" means the date all Parties have completed their respective obligations as set forth in this Agreement. "Force Majeure" means any contingency or cause beyond the reasonable control of a Party including, without limitation, acts of God or the public enemy, war, riot, civil commotion, insurrection, government or de facto governmental action (unless caused by acts or omissions of the party), fires, explosions, rain or other weather delays, floods, strikes, slowdowns or work stoppages. "Letter Agreement" means that certain Letter of Agreement dated December 7, 2012, signed by John Cabrales, Jr., City's Assistant City Manager, on behalf of City and James Cline, Jr., President, on behalf of DCTA, a true and correct copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. "Planting Deadline" means the second (2"d) anniversary of the issuance by City to DCTA of a certificate of occupancy authorizing the use and occupancy of the Facility or any part thereo£ "Project Area" means the area within the Trail Easement between Prairie Street and Shady Shores where said streets intersect the DCTA Rail Corridor. "Property" means the real property owned by DCTA in the City of Denton and described as Lot 6A, Block B, Shady Oaks Industrial Park approved by City's Planning and Zoning Commission on November 28, 2012. "Protected Trees" shall have the same meaning given to that phrase in DDC §35.13.7.A.S.a. as of the Effective Date. "The Quitclaim" means that certain Quitclaim from Denton to DART dated March 9, 2010, filed as Instrument No. 2010-43179 in the Official Public Records of Denton County, Texas, "Replacement Trees" means trees which, if planted, may be courited as satisfying the tree mitigation standards set forth in DDC §35.13.7.A.7. PACE 3 A THOR TY ND CITY40F DEN ON REGARDING TRE P O ECT OUNTY TRANSP � � � ORTATION (kbL• 10/10/13:60016) "South Denton Community Enhancement Project" or "the Enhancement Project" means DCTA's project within a portion of the DCTA Rail Corridor intended to provide screening and noise mitigation for certain properties with the southern portion of City's incorporated limits located adjacent to the DCTA Rail Corridor. "The Trail Easement" shall have the meaning given to that phrase in the Quitclaim. Article III Term The term of this Agreement shall begin on the Effective Date, and shall continue until the Expiration Date, unless sooner terminated as provided herein. Article IV DCTA Tree Mitigation Obligation 4.1 General Renresentations. The Parties understand, acknowledge and agree that: (a) DCTA's plans for development of the Property with the Facility will result in (i) the removal of 1,692 inches dbh of Protected Trees; and (b) The area of the Property is too small to be developed as intended and concurrently provide sufficient area for the planting of 1,692 Caliper Inches of Replacement Trees; and (c) In accordance with DDC §35.13.7.A.7.�4, DCTA intends to plant 148 Caliper Inches of Replacement Trees on the Property, resulting in a net reduction of 1,544 Caliper Inches of Protected Trees from the Property; and (d) In accordance with DDC §35.13.7.A, based on the net reduction in dbh Inches of Protected Trees resulting from DCTA's development of the Property, DCTA must, in lieu of planting Replacement Trees on the Property, pay into the City Tree Fund an amount equal to $125 per Inch, less the 148 Caliper Inches planted by DCTA on the Property. (e) Although subject to the terms and conditions of The Quitclaim, the Trail Easement constitutes public property. 4.2 Credit for Enhancement Pro�ram Trees. City agrees to allow DCTA to use funds which DCTA would otherwise be required to pay to the City Tree Fund to be used to plant trees in and adjacent to the City's Hike and Bike Trail within the Project Area, subject to the following: (a) The trees to be planted must satisfy the standards set forth in DCD §35,13.7.A.7; (b) DCTA agrees to submit to the City's Development Review Committee for review, comment, and approval DCTA's plans and specifications for the location and species of trees to be planted pursuant to this Section 4.2, which review, comment, and approval shall not PAGE 4 INTERLOCAL COOPERATION AGREEM�NT BETWEEN DENTON COUNTY TRANSPORTATION AUTHORITY AND CITY OF DENTON REGARDING TREE PROJECT (kbL•10/10/13:60016) be unreasonably withheld, delayed, or denied, All submittals shall be reviewed in accordance with the development process and DCTA shall provide responses to City comments in a timely manner to avoid the delay of any approvals. (c) Notwithstanding DCTA's actual expenditure for the purchase and planting of trees in the Project Area pursuant to this Section 4.2, City agrees to credit toward DCTA's obligation to pay funds to the City Tree Fund the amount of $125 for each Caliper Inch of trees planted in the Project Area in accordance with City's Development Review Fee Schedule in effect on the Effective Date; and (d) In the event DCTA is unable to plant a sufficient number of trees in both the Project Area and on the Property to mitigate and replace the 1,692 dbh Inches of Protected Trees removed from the Property, DCTA agrees to pay to the City Tree Fund an amount equal to $125 times the number of Caliper Inches of trees not replaced. By way of example, if DCTA is only able to plant 1500 Caliper Inches of Replacement Trees on the Property and/or in the Project Area, DCTA agrees to pay an additional amount of $14,000 to the City Tree Fund (192 Caliper Inches x$125 =$24,000 which, after crediting $10,000 previously paid, results in an underpayment to the City Tree Fund of $14,000. 4.3 Prior Payment Credit; Refund. City acknowledges that DCTA has previously paid $10,000 into the City Tree Fund in accordance with the Letter Agreement. City agrees that the previous payment to the City Tree Fund made by DCTA shall be credited toward the payment into the City Tree Fund required of DCTA pursuant to Section 4.2, above. City further agrees that for each Caliper Inch of Replacement Trees planted on the Property and/or the Project Area by DCTA pursuant to this Agreement in excess of 1,612 Caliper Inches, City shall refund to DCTA from the City Tree Fund the amount of $125, up to an amount not to exceed $10,000. City agrees to refund said amount not later than 30 days after receipt of a notice from DCTA requesting such payment. 4.4 �J�����!'lir�� F`���� +�"��r�� ��c�ti���� c�l" "�"�w�� �ili ��#i���� +���a�i a:w�i����±�i�M"i� "l°�•��� ��r�r��# Pavment, DCTA shall pay any amount required to be paid to the City Tree Fund pursuant to Section 4.2, above, prior to receiving from the City a Certificate of Occupancy for any portion of the Facility. DCTA understands, acknowledges, and agrees that notwithstanding having completed all requirements under applicable City ordinances and regulations relating to the construction of the Facility that would otherwise entitle DCTA to receive a certificate of occupancy from City for use of the Facility, City shall not be obligated to grant to DCTA a certificate of occupancy for use of the Facility until DCTA has paid into the City Tree Fund the amounts required by Section 4.2, above. 4.5 Reimbursement of Citv Tree Funds After Issuance of Certificate of Occupancv. Notwithstanding City's issuance of a certificate of occupancy to DCTA for the Facility following the payment by DCTA of t1�e required amount of funds to the City Tree Fund, City agrees to reimburse DCTA for Replacement Trees planted by DCTA on or before the Planting Deadline on the Property or in the Project Area in accordance with the plans and specifications approved by City pursuant to Section 4.2(b) and (c), above. The foregoing reimbursement shall be at the same rate as set forth in Section 4.2(d), above, but, in no case, shall PAGE 5 � INTERLOCAL COOPERATION AGREEMENT BETWEEN DENTON COUNTY TRANSPORTATION AUTHORITY AND CITY OF DENTON REGARDING TREE PROJECT (kb I :10/ 10/ 13 :60016) the total amount of reimbursement to DCTA exceed the total amount of funds paid by DCTA into the City Tree Fund. City shall nol �� �������x��:c�r� t�� ��c�����►` (i) any request for reimbursement related to the planting of Replacement l"N��.�:� ������' tl��, �'las��l���� Deadline, or (ii) any request for reimbursement delivered by DCTA to �"i�y l�t��° tl��r� t}�� 1��lt day after the Planting Deadline. Any funds (i) paid by DCTA to the City Tree Fund pursuant to this Agreement relating to development of the Facility and (ii) for which reimbursement has not been requested by DCTA before the 1815` day after the Planting Deadline shall become City's funds free and clear of any reimbursement obligation set forth in this Agreement subject to use and administration by City as set forth in DCD §35.13.7.A,7.e. 4.6 Rea���;�t� for Reimburw�r�a�M��t, All requests made by DCTA to the City for reimbursement from the City Tree Fund pursuant to this Agreement shall be delivered to Brian Lockley, Director of Planning and Development and accompanied by a statement or report setting forth (i) the date of planting of the Replacement Trees for which reimbursement is sought, (ii) the total Caliper Inches of the Replacement Trees for which reimbursement is sought, and (iii) a general description of the location of where the Replacement Trees were planted. City agrees to pay DCTA the amount of the requested reimbursement not later than thirty (30) days after the delivery of the request for reimbursement. DCTA may make, and City shall honor and pay, more than one request for reimbursement; provided, however, DCTA shall not make more than one request for reimbursement during any calendar month, nor shall DCTA deliver to City a request for reimbursement more frequently than once in any thirty (30) day period. 4.7 Replacement of Dead/Dama�ed Trees — No Reimbursement. DCTA shall not be entitled to reimbursement of any funds from the City Tree Fund pursuant to this Agreement for Replacement Trees planted by DCTA which are planted to replace Replacement Trees that have died or been damaged or destroyed through natural or man-made causes. Article V Miscellaneous 5.1 Entire A�reement. This Agreement constitutes the sole and only agreement between the parties and supersedes any prior understandings written or oral agreements between the parties with respect to this subject matter. 5.2 Assi�nment. This Agreement may not be assigned by either Party without the prior written consent of the other Party; provided, however, this Agreement may be assigned by DCTA to DART upon termination of the DART Agreement without the consent of Denton if DART agrees to assume all of DCTA's duties and responsibilities set forth in this Agreement. 5.3 Successors and Assi�ns. Subject to the provisions regarding assignment, this Agreement shall be binding on and inure to the benefit of the parties to it and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns. 5.4 Governin� Law. The laws of the State of Texas shall govern this Agreement; and venue for any action concerning this Agreement shall exclusively be in the State District �._,_. . . ..._. PAGE 6 INTERLOCAL COOPERATION AGREEMENT BETWECN DCNTON COUNTY TRANSPORTATION � AUTHORITY AND CITY OF DENTON RGGARDING TREE PROJCCT (kbi:10/ I 0/ 13:60016) Court of Denton County, Texas. The parties agree to submit to the personal and subject matter jurisdiction of said court. 5.5 Amendments. This Agreement may be amended by the mutual written agreement of the parties. 5.6 Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. 5.7 Notice. Any notice required or permitted to be delivered hereunder may be sent by first class mail, overnight courier or by confirmed telefax or facsimile to the address specified below, or to such other party or address as either party may designate in writing, and shall be deemed received three (3) days after delivery set forth herein: If intended for DCTA, to: Attn: President Denton County Transportation Authority 1660 South Stemmons, Suite 250 Lewisville, Texas 75067 972-221-4600 Telephone 972-221-4601 Facsimile With copy to: Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Ross Tower 500 North Akard Dallas, Texas 75201 If intended for Denton, to: George Campbell City Manager 215 E. McKinney Street Denton, Texas 76201 940-349-7715 Telephone 940-349-8596 Facsimile PAGE 7 INTERLOCAL COOPERATION AGREEMENT BETWECN DENTON COUNTY TRANSPORTATION AUTHORITY AND CITY OF DENTON REGARDINC TREE PROJECT (kb1:10/l0/ 13:60016) With a copy to: Anita Burgess City Attorney 215 E. McKinney Street Denton, Texas 76201 940-349-8333 Telephone 940-382-7923 Facsimile 5.8 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of any number of copies hereof each signed by less than all, but together signed by all of the parties hereto. 5.9 Recitals. The recitals to this Agreement are incorporated herein. 5.10 Authorization. Each Party represents that it has full capacity and authority to grant all rights and assume all obligations that are granted and assumed under this Agreement. 5.11 Survival of Covenants. Any of the representations, warranties, covenants, and obligations of the Parties, as well as any rights and benefits of the Parties, pertaining to a period of time following the termination of this Agreement shall survive termination hereof. 5.12 Approval of Parties. Whenever this Agreement requires or permits the approval or consent to be given by a party, the Parties agree that such approval or consent shall not be unreasonably withheld, conditioned or delayed. 5.13 No Third-Partv Beneficiarv. Nothing in this Agreement shall be construed as creating or giving rise to any rights of third-parties or any persons other than the Parties hereto. EXECUTED this ��........ day of _.. ....... .� � � ���:�"' .............. , 2013. DENTON COUNTY TRANSPORTATION AUTHORITY � �.. �� BY� ����� �:��:� �� ;�;,, .��"� _.n_ �..� ��G���s C. Cline, Jr., P.E , a���ia�ct�►1 Approved as to Form: �� �� ���� �, �� By; m .............�m� � �� �-__ Peter G. Smith,���. _ .... .._..._�. C�, ���•;��1 Counsel PAGE 8 � INT�RLOCAL COOPERATION AGREEMENT BETWEEN DENTON COUNTY TRANSPORTATIOIY AUTHORITY AND CITY OF DENTON REGARDING TREE PROJECT (kb1:10/10/13:60016) EXECUTED this day of ���'�� ,�"°'� 2013. ........,_...—�� CITY OF DENTON� EXAS ,.�� ���� � � ���,��" �� � BY�.. ��,.� ����'" ��. ��� ..� � � ���. .. .....�� ... ts�.�a�°��:�ar����bell, City Manager APPROVED AS TO LEGAL FORM: �� . ' ��� �.� BY� ..��� 6,��."�� � , m ����.���. �........___—_� .� w..� .. �,_ ..._� Anita Burgess, ��.`Cty At:i���������� PAGE 9 INTERLOCAL COOPERATION AGREEMENT BETWEEN DENTON COUNTY TRANSPORTATION AUTHORITY AND CITY OF DENTON REGARDING TREE PROJECT (kb1:10/10/ 13:60016) Exhibit "A" Copy of Letter Agreement [copy of 12/7/12 letter agreement to be attached] � .�...... PAGE 1 EXHIBIT "A" TO INTERLOCAL COOPERATION AGREEMENT BETWEEN DENTON COUNTY TRANSPORTATION AUTHORITY AND CITY OF DENTON: TREE PROJECT ( k b I:10/ 10/ 13 : 6 0016 )