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CP 2008-03-11
NOTICE OF CITY COUNCIL MEETING AND AGENDA MARCH 11, 2008 DOUG STOVER, BRIANNA HINOJOSA-FLORES, Place 3 Mayor Mayor Pro Tem TIM BRANCHEAU, Place 1 BILLY FAUGHT, Place 5 JAYNE PETERS, Place 2 MARVIN FRANKLIN, Place 6 MARSHA TUNNELL, Place 4 BILL YORK, Place 7 JIM WITT, City Manager MEETING TIME AND PLACE: Call to Order 6:00 p.m. Council Chambers (Open to the Public) Executive Session Immediately Following 1st Fl. Conf. Room (Closed to the Public) Work Session Immediately Following 1st Fl. Conf. Room (Open to the Public) Regular Session 7:00 p.m. Council Chambers (Open to the Public) Notice is hereby given that the City Council of the City of Coppell, Texas will meet in Regular Called Session on Tuesday, March 11, 2008, at 6:00 p.m. for Executive Session, Work Session will follow immediately thereafter, and Regular Session will begin at 7:00 p.m., to be held at Town Center, 255 Parkway Boulevard, Coppell, Texas. As authorized by Section 551.071(2) of the Texas Government Code, this meeting may be convened into closed Executive Session for the purpose of seeking confidential legal advice from the City Attorney on any agenda item listed herein. The City of Coppell reserves the right to reconvene, recess or realign the Work Session or called Executive Session or order of business at any time prior to adjournment. The purpose of the meeting is to consider the following items: ITEM # ITEM DESCRIPTION 1. Call to order. ag031108 Page 1 of 6 ITEM # ITEM DESCRIPTION EXECUTIVE SESSION (Closed to the Public) 2. Convene Executive Session A. Section 551.071, Texas Government Code - Consultation with City Attorney. 1. The City of Coppell and Coppell Independent School District opposition to a change of zoning request of the Billingsley Corporation in the City of Dallas, Zoning Case Number Z045- 107; and City of Coppell vs. CB Parkway Business Center VI, et al in the County Court at Law No. 3; and CB Parkway Business Center, et al vs. City of Coppell, et al; and City of Dallas vs. Douglas Stover, et al in the 191st District Court; and City of Coppell, et al vs. City of Dallas, et al in the 101st District Court. 2. Mira Mar vs. City of Coppell B. Section 551.072, Texas Government Code - Deliberation regarding Real Property. 1. Purchase of real property east of Denton Tap and north of Beltline. C. Section 551.087, Texas Government Code – Economic Development Negotiations. 1. ED Prospects East and West of Beltline/Denton Tap and south of Bethel Road. WORK SESSION (Open to the Public) 3. Convene Work Session A. Discussion regarding Budget Calendar. B. Discussion of Agenda Items. Adjourn Work Session. PUBLIC ANNOUNCEMENTS Public Service Announcements concerning local civic events and no Council action is required or permitted. REGULAR SESSION (Open to the Public) 4. Convene Regular Session. 5. Invocation. 6. Pledge of Allegiance. ag031108 Page 2 of 6 ITEM # ITEM DESCRIPTION 7. Citizens' Appearances. CONSENT AGENDA 8. Consider approval of the following consent agenda items: A. Consider approval of minutes: February 26, 2008. B. Consider approval of amending the minutes of the February 12, 2008 Council Meeting to correct the Ordinance number for Consent Agenda Item F from 91500-A-491 to Ordinance No. 2008-1191. C. Consider approval of awarding RFP #0092, and enter into an agreement with DFW Multimedia, Inc., DFW Video, in the amount of $65,500, as budgeted, for video production services, and authorizing the City Manager to sign. D. Consider approval of an Interlocal Agreement between the City of Coppell and the North Central Texas Council of Governments for the cooperative purchasing for TMRS actuarial shared services, and authorizing the City Manager and the Mayor to sign all appropriate documents. E. Consider approval of a nine-month extension to the expiration date (December 12, 2008) of the Alexander Court, Lots 1-29, Block A, Preliminary Plat, to allow the subdivision of 29 single-family lots and two common area lots on 18.5 acres of property located at the northwest corner of Bethel and Denton Tap Roads. F. Consider approval of an Ordinance for Case No. PD-221R4-HC, Duke Lesley Addition, zoning change from PD-221-HC (Planned Development-221-Highway Commercial) to PD-221R4-HC (Planned Development-221 Revision 4- Highway Commercial) to allow two oversized Monument Signs to be located in the medians of Dividend Drive and Point West Boulevard (one at each location) and authorizing the Mayor to sign. G. Consider approval of a Right of Way Use Agreement between the City of Coppell and Duke Realty, LP for the installation of monument signs in the right-of-way of Dividend Drive and Point West Boulevard; and authorizing the City Manager to sign. ag031108 Page 3 of 6 ITEM # ITEM DESCRIPTION H. Consider approval of an Ordinance for Case No. PD-227R-SF-12, Bellacere Addition, zoning change from PD-227-SF-12 (Planned Development-227-Single Family-12) to PD-227R-SF-12 (Planned Development-227 Revised-Single Family-12), to allow: realignment of the mutual access/fire lane easement; reconfiguration of the common area lot; relocation of the garage access on Lot 4; and construction of four single-family homes on 1.961 acres of property, located along the north side of Sandy Lake Road, approximately 150 feet east of Summer Place Drive and authorizing the Mayor to sign. END OF CONSENT 9. PUBLIC HEARING: Consider approval of the Arbor Manors, Replat, a replat to revise the previously approved subdivision to eliminate a 4,800-square-foot common area lot and to incorporate this area into an enlarged and reconfigured five lots, allowing the development of 73 single-family homes and 10 common area open spaces on approximately 25.15 acres of property located south of Sandy Lake Road and west of Denton Tap Road. 10. PUBLIC HEARING: Consider approval of Case No. S-1245-TC, DeVine Cellars, a zoning change request from TC (Town Center) to S-1245-TC (Special Use Permit- 1245-Town Center), to allow the operation of a 2,272-square-foot retail/convenience store and restaurant, located in the Town Center Addition, along the east side of Denton Tap Road north of Town Center Blvd. 11. PUBLIC HEARING: Consider approval of Case No. PD-223R-C, Chase Bank (Kimbel Addition), a zoning change request from PD-223-C (Planned Development-223- Commercial) to PD-223R-C (Planned Development-223 Revised- Commercial) to attach a revised Detail Site Plan to allow the development of a 3,889-square-foot bank with three drive-thru lanes on 0.70 acres of property, located at the southeast corner of MacArthur Boulevard and Village Parkway. 12. PUBLIC HEARING: Consider approval of Case No. S-1238R-C, Kegs N Cellar, a zoning change request from S-1238-C (Special Use Permit-1238-Commercial) to S-1238R-C (Special Use Permit-1238 Revised-Commercial) to allow an additional 23- square-foot attached sign on the west elevation in addition to the two ag031108 Page 4 of 6 ITEM # ITEM DESCRIPTION existing attached signs for the 2,850-square-foot convenience/retail store located at 777 S. MacArthur Blvd., #413. 13. PUBLIC HEARING: Consider approval of two text amendments to the Coppell Zoning Ordinance; Sec. 12-29-3.3 adding “(P) Signs which advertise or refer to the sale or consumption of alcoholic beverages by words or symbols” to types of signs are specifically prohibited, and Sec. 12-29-4.3(A)i, requiring individually mounted letters in the industrial districts. 14. PUBLIC HEARING: Consider approval of an application by Chesapeake Energy to allow drilling and production from a horizontal well on property located north of Bethel Road, west of the proposed extension of Creekview Drive, on the Fellowship Church Property. 15. Consider approval of Bid Number Q-1207-02, and resulting contract, from Meridian Commercial, L.P., in the amount of $4,506,000.00, for construction of the Coppell Community/Senior Center, and authorizing the City Manager to sign. 16. Consider approval of Change Order No. One to Meridian Commercial, L.P., to reduce the contract for construction of the Coppell Community/Senior Center by $391,801.00, bringing the total contract to $4,114,199.00. 17. Consider approval of a Change Order to close Bethel Road from Freeport Parkway east to the east property line of the Hard Eight Restaurant and Bethel Road from Freeport Parkway west approximately 1,800 feet for specific reconstruction activities; providing for liquidated damages and an early completion incentive; and authorizing the City Manager to sign. 18. Consider approval of a contract between the city of Coppell and Stewart Enterprises to build a funeral home at Rolling Oaks Cemetery, and authorizing the Mayor to sign. 19. Mayor and Council Reports. A. Report by Mayor Stover regarding Metroplex Mayors Meeting. B. Report by Mayor Stover regarding Community Egg Hunt, Saturday, March 22, 11:00 a.m. at Wagon Wheel Park. C. Report by Mayor Stover regarding New Tech High registration. ag031108 Page 5 of 6 ITEM # ITEM DESCRIPTION 20. Necessary action resulting from Work Session. 21. Necessary action resulting from Executive Session. Adjournment. ____________________________________ Douglas N. Stover, Mayor CERTIFICATE I certify that the above Notice of Meeting was posted on the bulletin board at the City Hall of the City of Coppell, Texas on this 7th day of March, 2008, at __________________. ____________________________________ Libby Ball, City Secretary DETAILED INFORMATION REGARDING THIS AGENDA IS AVAILABLE ON THE CITY'S WEBSITE (www.ci.coppell.tx.us) UNDER PUBLIC DOCUMENTS, COUNCIL PACKETS. PUBLIC NOTICES STATEMENT FOR ADA COMPLIANCE The City of Coppell acknowledges its responsibility to comply with the Americans With Disabilities Act of 1990. Thus, in order to assist individuals with disabilities who require special services (i.e. sign interpretative services, alternative audio/visual devices, and amanuenses) for participation in or access to the City of Coppell sponsored public programs, services and/or meetings, the City requests that individuals make requests for these services forty-eight (48) hours ahead of the scheduled program, service and/or meeting. To make arrangements, contact Vivyon V. Bowman, ADA Coordinator or other designated official at (972) 462-0022, or (TDD 1-800-RELAY, TX 1-800-735-2989). ag031108 Page 6 of 6 KEY TO COUNCIL GOALS ICONS 2007 — 2012 Maintain Sustainable, Financially Sound City Government with Excellent Services • Maintain quality customer service resulting in 90+% customer satisfaction ratings • Ensure adequate resources to support defined services and service levels • Retain reserves consistent with city policy • Invest in the city’s future: operations & capital • Ensure residents are aware of city vision, goals, services and programs Develop & Revitalize Commercial Areas & Corridors • Continue development: corporate offices and major distribution businesses • Revitalize aged or deteriorating strip centers • Maintain and expand business tax base • Develop a quality hotel serving residents and guests • Retain and support expansion of current businesses located in Coppell Maintain & Upgrade City Infrastructure • Maintain and improve quality of roads, alleys, and sidewalks • Improve quality of storm water management systems • Improve and maintain quality of city facilities • Facilitate efficient traffic flow within and through the city • Improve municipal utilities where necessary and maintain existing Develop an Alive Old Coppell – A Community Destination • Develop a community destination: residents think of Old Coppell as a place to go • Attract small, niche retail businesses • Attract more restaurants • Maintain and expand the Farmers’ Market • Attract non-residents to come and return for dining, shopping and entertainment Maintain Attractive, Livable Neighborhoods with Quality Homes • Protect the integrity and identity of current neighborhoods • Enhance the attractiveness of neighborhood infrastructure (trees, streetscapes) • Maintain and increase property values in older homes • Have infill developments that add value to the neighborhood • Have a high percentage of owner-occupied single-family homes Create a City for a Lifetime • Provide leisure and recreational opportunities for all family generations • Maintain a reputation as a safe community for all • Have all generations and diverse populations feel welcome • Maintain top quality schools in partnership with ISD’s • Rejuvenate community events with a high level of participation AGENDA REQUEST FORM DATE: March 11, 2008 ITEM #: ES-2 EXECUTIVE SESSION A. Section 551.071, Texas Government Code – Consultation with City Attorney. 1. The City of Coppell and Coppell Independent School District opposition to a change of zoning request of the Billingsley Corporation in the City of Dallas, Zoning Case Number Z045-107; and City of Coppell vs. CB Parkway Business Center VI, et al in the County Court at Law No. 3; and CB Parkway Business Center, et al vs. City of Coppell, et al; and City of Dallas vs. Douglas Stover, et al in the 191st District Court; and City of Coppell, et al vs. City of Dallas, et al in the 101st District Court. 2. Mira Mar vs. City of Coppell. B. Section 551.072, Texas Government Code – Deliberation regarding Real Property. 1. Purchase of real property east of Denton Tap and north of Beltline. C. Section 551.087, Texas Government Code – Economic Development Negotiations. 1. ED Prospects East and West of Beltline/Denton Tap and south of Bethel Road. Agenda Request Form - Revised 02/04 Document Name: %exsessn AGENDA REQUEST FORM DATE: March 11, 2008 ITEM #: WS-3 WORK SESSION A. Discussion regarding Budget Calendar. B. Discussion of Agenda Items. Agenda Request Form - Revised 02/07 Document Name: %wksessn AGENDA REQUEST FORM DATE: March 11, 2008 ITEM #: 7 CITIZENS' APPEARANCES ORDINANCE NO. 2001-964 AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, ESTABLISHING RULES, TIMES AND PROCEDURES FOR CONDUCTING CITY COUNCIL MEETINGS. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS, THE FOLLOWING ARE HEREBY ADOPTED AS THE RULES, TIMES AND PROCEDURES FOR CONDUCTING COUNCIL MEETINGS OF THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS: The City of Coppell Code of Ordinances, Article 1-10 "Rules, Times and Procedures for Conducting City Council Meetings," be, and the same is hereby, amended to read as follows: "ARTICLE 1-10 RULES, TIMES AND PROCEDURES FOR CONDUCTING CITY COUNCIL MEETINGS ". . . 1-10-6.2.1 CITIZENS APPEARANCE Persons wishing to speak on any matter other than an item scheduled for a public hearing on the agenda, must sign a register and list their residence address, provided by the City Secretary on a table outside the Council Chambers, and such persons may be heard only at the "Citizens Appearance" portion of a regular meeting or special meeting. Each speaker must state his or her name and address of residence. Presentations by individuals during the "Citizens Appearance" shall be limited to two (2) minutes each. An individual speaker's time may be extended for an additional two (2) minutes with the approval of a majority of the Council members present. There shall be a cumulative limit of twenty (20) minutes allotted of any regular or special Council meeting. Those persons who signed up to speak at the "Citizens Appearance" shall be called upon in the order that they have signed the provided register. No personal attacks by any speaker shall be made against any member of the Council, Mayor, individual, group or corporation (Charter Article 3, Section 3.12). Agenda Request Form - Revised 09/02 Document Name: %citapp.doc WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: City Secretary March 11, 2008 8/A ✔ PROCEDURAL Consider approval of minutes: February 26, 2008. Minutes of the City Council meeting held on February 26, 2008. Staff recommends approval. %minutes MINUTES OF FEBRUARY 26, 2008 The City Council of the City of Coppell met in Regular Called Session on Tuesday, February 26, 2008 at 5:30 p.m. in the City Council Chambers of Town Center, 255 Parkway Boulevard, Coppell, Texas. The following members were present: Doug Stover, Mayor Mayor Pro Tem Brianna Hinojosa-Flores Tim Brancheau, Councilmember Jayne Peters, Councilmember (late arrival) Marsha Tunnell, Councilmember (late arrival) Billy Faught, Councilmember Marvin Franklin, Councilmember Bill York, Councilmember Also present were City Manager Jim Witt, Deputy City Secretary Christel Pettinos and City Attorney Robert Hager. 1. Call to order. Mayor Stover called the meeting to order, determined that a quorum was present and convened into Work Session. EXECUTIVE SESSION (Closed to the Public) 2. Convene Executive Session A. Section 551.071, Texas Government Code - Consultation with City Attorney. 1. The City of Coppell and Coppell Independent School District opposition to a change of zoning request of the Billingsley Corporation in the City of Dallas, Zoning Case Number Z045-107; and City of Coppell vs. CB Parkway Business Center VI, et al in the County Court at Law No. 3; and CB Parkway Business Center, et al vs. City of Coppell, et al; and City of Dallas vs. Douglas Stover, et al in the 191st District Court; and City of Coppell, et al vs. City of Dallas, et al in the 101st District Court. 2. License Agreements with Sports Associations. B. Section 511.072, Texas Government Code – Deliberation regarding Real Property. cm022608 Page 1 of 8 1. Discussion regarding land sale west of Denton Tap south of Bethel Road. 2. Oil and Gas Lease of City-owned property. 3. Purchase of real property east of Denton Tap and north of Beltline. C. Section 551.087, Texas Government Code – Economic Development Negotiations. 1. ED Prospects East and West of Beltline/Denton Tap and south of Bethel Road. Councilmember Tunnell arrived prior to convening Executive Session. Mayor Stover convened into Executive Session at 5:43 p.m. as allowed under the above-stated article. Councilmember Peters arrived during Executive Session. Mayor Stover recessed the Executive Session at 6:44 p.m. and opened the Regular Session. WORK SESSION (Open to the Public) 3. Convene Work Session A. Presentation regarding Oil and Gas Drilling. B. Discussion regarding Council Retreat. C. Discussion regarding Resident Welcome/Orientation. D. Discussion of Agenda Items. REGULAR SESSION (Open to the Public) 4. Convene Regular Session. 5. Invocation. Pastor Susan Bryan of First United Methodist Church led those present in the Invocation. 6. Pledge of Allegiance. Mayor Stover led those present in the Pledge of Allegiance. cm022608 Page 2 of 8 7. Presentation by Tabatha Brannum regarding the new Tech High School. Tabitha Brannam, representing Coppell ISD, made a presentation to Council on the New Tech High School. 8. Report by the Library Board. Marsha Raines, Library Board Chair, made a presentation to Council on the activities at the Library. 9. Presentation by City Staff regarding Coppell Environmental Management System. Christel Pettinos, Deputy City Secretary, made a presentation to Council on the Green Team’s Environmental Management System. 10. Citizens' Appearances. There was no one signed up to speak under this item. CONSENT AGENDA 11. Consider approval of the following consent agenda items: A. Consider approval of minutes: February 12, 2008. B. Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and the Coppell Independent School District in the amount of $45,000 for technology at the high school, and authorizing the City Manager to sign. Action: Councilmember Tunnell moved to approve Consent Agenda Items A and B. Councilmember Peters seconded the motion; the motion carried 7-0 with Mayor Pro Tem Hinojosa-Flores and cm022608 Page 3 of 8 Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 12. Consider approval of awarding Design/Build services as outlined in Buy Board Job Contracting Proposal #258-07 to Jamail & Smith Construction Company, for the design and construction of the Fire Department Storage Facility to be located west of Fire Station #1, 520 Southwestern Boulevard, in the amount of $527,993.00 as provided in Fire Capital Improvement Project (CIP) funds; and authorizing the City Manager to sign. Presentation: Kevin Richardson, Fire Chief, made a presentation to the Council. Action: Councilmember York moved to approve awarding Design/Build services as outlined in Buy Board Job Contracting Proposal #258- 07 to Jamail & Smith Construction Company, for the design and construction of the Fire Department Storage Facility to be located west of Fire Station #1, 520 Southwestern Boulevard, in the amount of $527,993.00 as provided in Fire Capital Improvement Project (CIP) funds; and authorizing the City Manager to sign. Councilmember Franklin seconded the motion; the motion carried 7-0 with Mayor Pro Tem Hinojosa-Flores and Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 13. Consider nominating Councilmembers to the North Central Texas Council of Governments Clean Air Steering Committee and/or Subcommittee. Presentation: Jim Witt, City Manager, made a presentation to the Council. Action: Mayor Pro Tem Hinojosa-Flores moved to nominate Councilmembers Brancheau and Peters to the North Central Texas cm022608 Page 4 of 8 Council of Governments Clean Air Steering Committee and the Clean Engine Technology, Building Codes, and Reduction of vehicle miles traveled/idling Subcommittees. Councilmember York seconded the motion; the motion carried 7-0 with Mayor Pro Tem Hinojosa-Flores and Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 14. Consider approval of accepting the resignation of David Castillo from the Parks and Recreation Board and appointing a new member to fill the unexpired term. Action: Councilmember Faught moved to accept the resignation of David Castillo from the Parks and Recreation Board and appoint Catherine Smithson to fill the unexpired term. Councilmember Franklin seconded the motion; the motion carried 7-0 with Mayor Pro Tem Hinojosa-Flores and Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 15. Mayor and Council Reports. A. Report by Mayor Stover regarding Family Fish to be held March 1 from 9:00 a.m. to 1:00 p.m. at Andrew Brown East. A. Mayor Stover reported on the upcoming Family Fish scheduled for Saturday. Brad Reid, Director of Parks and Recreation, announced the stocking of approximately 2000 pounds of trout, as well as other activities for the kids. Mayor Stover also announced the Chamber of Commerce 25th anniversary Gala held Saturday night at the DFW Hilton. 16. Council Committee Reports. A. Carrollton/Farmers Branch ISD/Lewisville ISD – Councilmember Tunnell. B. Coppell ISD – Councilmembers Peters and Faught. C. Coppell Seniors – Councilmembers Brancheau and Faught. D. Dallas Regional Mobility Coalition – Councilmember Peters. cm022608 Page 5 of 8 E. Economic Development Committee – Mayor Pro Tem Hinojosa- Flores and Councilmember Franklin. F. International Council for Local Environmental Initiatives (ICLEI) –Councilmember Brancheau G. Metrocrest Hospital Authority – Councilmember Tunnell. H. Metrocrest Medical Foundation – Councilmember Tunnell. I. Metrocrest Medical Services – Mayor Pro Tem Hinojosa-Flores. J. Metrocrest Social Service Center – Councilmember Tunnell. K. North Texas Council of Governments – Councilmember Brancheau. L. NTCOG/Regional Emergency Management – Councilmember Franklin. M. North Texas Commission – Councilmember York. N. Senior Adult Services – Councilmember Faught. A. Councilmember Tunnell announced the CFBISD Used Book Sale begins February 27 – March 2. The PTA is requesting clothing for the children in the district. Lewisville ISD has called a bond election for May 10. B. Councilmember Faught informed the public that applications for the New Tech High School will be accepted through February 28. School Board elections for Place 4 & 5 will be held on May 10. Mayor Stover also announced a $1000 donation to Project Graduation held before the meeting. C. Councilmember Faught announced the upcoming activities scheduled for the Seniors: Vegas Getaway during Spring Break, a Senior Spelling Bee for March 19 at 9am and the King Tut exhibit October 6. D. Councilmember Peters reported NTTA held a groundbreaking last Monday for the next phase of development through McKinney. NCTCOG will be considering an agreement with the City of Coppell for allocating funds to the Freeport project. E. Mayor Pro Tem Hinojosa-Flores said the committee discussed the progress from the Joint Meeting with City Council and the Planning & Zoning Commission. They also talked about the latest “hotspot” at Belt Line and MacArthur, and the drafting of a policy on retail retention. F. Nothing to report. cm022608 Page 6 of 8 G. Councilmember Tunnell informed the Council that the previous negotiations for the hospital operations have broken down and are not moving forward. H. Nothing to report. I. Mayor Pro Tem Hinojosa-Flores announced that the organization is requesting more doctors for after-hours services. She thanked the doctors in the community for the hours they do volunteer, but that the numbers are low. J. Councilmember Tunnell stated the Keyholder Breakfast is scheduled for March 28 at the Marriott Quorum. The Sojourners Men’s Group will be the beneficiary of the Golf Tournament in April. K. Nothing to report. L. Nothing to report. M. Nothing to report. N. Councilmember Faught reported on a new advertisement program for the newsletter. They are also scheduling meetings and workshops for the future on long-range planning. Mayor Pro Tem Hinojosa-Flores updated Council on the city’s upcoming activities for Relay for Life. A Pancake Breakfast will be held on Thursday, February 28 from 7-10am at Fire Station #3, and a 5K Run for the Relay Saturday, March 8 at Andy Brown East, with all proceeds benefiting the American Cancer Society. At this time, Council reconvened Work Session followed by Executive Session. WORK SESSION (Open to the Public) Reconvene Work Session A. Presentation regarding Oil and Gas Drilling. B. Discussion regarding Council Retreat. C. Discussion regarding Resident Welcome/Orientation. EXECUTIVE SESSION (Closed to the Public) Reconvene Executive Session B. Section 511.072, Texas Government Code – Deliberation regarding Real Property. 2. Oil and Gas Lease of City-owned property. cm022608 Page 7 of 8 Mayor Stover reconvened into Executive Session at 8:51 p.m. as allowed under the above-stated article. Mayor Stover adjourned from the Executive Session at 8:59 p.m. and reopened the Regular Session. REGULAR SESSION (Open to the Public) 17. Necessary action resulting from Work Session. There was no action necessary under this item. 18. Necessary action resulting from Executive Session. There was no action necessary under this item. There being no further business to come before the City Council, the meeting was adjourned. ____________________________________ Douglas N. Stover, Mayor ATTEST: ____________________________________ Christel Pettinos, Deputy City Secretary cm022608 Page 8 of 8 WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: City Secretary March 11, 2008 8/B ✔ PROCEDURAL Consider approval of amending the minutes of the February 12, 2008 Council Meeting to correct the Ordinance number for Consent Agenda Item F from 91500-A-491 to Ordinance No. 2008-1191. This ordinance was erroneously assigned a number belonging to amendments to the Zoning Ordinance. Since the Ordinance in question is not an amendment to the Zoning Ordinance, a new number has been assigned. Staff recommends approval. %amendminutes MINUTES OF FEBRUARY 12, 2008 The City Council of the City of Coppell met in Regular Called Session on Tuesday, February 12, 2008 at 5:30 p.m. in the City Council Chambers of Town Center, 255 Parkway Boulevard, Coppell, Texas. The following members were present: Doug Stover, Mayor Tim Brancheau, Councilmember Jayne Peters, Councilmember Marsha Tunnell, Councilmember (late arrival) Billy Faught, Councilmember Marvin Franklin, Councilmember Bill York, Councilmember Mayor Pro Tem Brianna Hinojosa-Flores was absent from the meeting. Also present were City Manager Jim Witt, City Secretary Libby Ball and City Attorney Robert Hager. 1. Call to order. Mayor Stover called the meeting to order, determined that a quorum was present and convened into Executive Session. EXECUTIVE SESSION (Closed to the Public) 2. Convene Executive Session A. Section 551.071, Texas Government Code - Consultation with City Attorney. 1. The City of Coppell and Coppell Independent School District opposition to a change of zoning request of the Billingsley Corporation in the City of Dallas, Zoning Case Number Z045-107; and City of Coppell vs. CB Parkway Business Center VI, et al in the County Court at Law No. 3; and CB Parkway Business Center, et al vs. City of Coppell, et al; and City of Dallas vs. Douglas Stover, et al in the 191st District Court; and City of Coppell, et al vs. City of Dallas, et al in the 101st District Court. B. Section 511.072, Texas Government Code – Deliberation regarding Real Property. cm021208 Page 1 of 11 1. Discussion regarding land sale west of Denton Tap south of Bethel Road. C. Section 551.087, Texas Government Code – Economic Development Negotiations. ED Prospects East and West of Beltline/Denton Tap and south of Bethel Road. Councilmember Tunnell arrived prior to convening Executive Session. Mayor Stover convened into Executive Session at 5:45 p.m. as allowed under the above-stated article. Mayor Stover recessed the Executive Session at 6:01 p.m. and opened the Regular Session. WORK SESSION (Open to the Public) 3. Convene Work Session A. Update regarding Senior Center. B. Review of FY 2007 CAFR. C. Review of Joint Meeting with Planning & Zoning and Economic Development Committee. D. Discussion regarding Council Retreat – May 2008. E. Update regarding Cemetery. F. Discussion of Agenda Items. REGULAR SESSION (Open to the Public) 4. Convene Regular Session. 5. Invocation. Pastor Phil Gelaske of Rejoice Lutheran Church led those present in the Invocation. 6. Pledge of Allegiance. Boy Scout Troop 841 led those present in the Pledge of Allegiance. cm021208 Page 2 of 11 7. Consider approval of a proclamation naming February 22 as Christian Community Action Day, and authorizing the Mayor to sign. Presentation: Mayor Stover read the Proclamation for the record and presented the same to Scott Orr and Terry Smith. Action: Councilmember Franklin moved to approve a proclamation naming February 22 as Christian Community Action Day, and authorizing the Mayor to sign. Councilmember York seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 8. Citizens' Appearances. There was no one signed up to speak under this item. CONSENT AGENDA 9. Consider approval of the following consent agenda items: A. Consider approval of minutes: January 22, 2008. B. Consider approval of awarding a proposal to Thor-Guard, Inc., for the installation of a Lightning Prediction System at various park sites, in the amount of $58,620.00, and authorizing the City Manager to sign. C. Consider the approval of the purchase of 16 Panasonic CF-19 ruggedized Tablet Notebook computers from CDW- G for the Fire Department in the amount of $53,742 as budgeted. D. Consider approval of a 12-month extension to the expiration date (March 19, 2008) of The Chateaus of Coppell Final Plat, to allow the development of 56 single- family homes and common/open space lots on 20 acres of cm021208 Page 3 of 11 property located at the southwest corner of Bethel and Denton Tap Roads. E. Consider approval of an Ordinance for Case No. PD-228R- HC, Bank of America zoning change from PD-228-HC (Planned Development-228-Highway Commercial) to PD- 228R-HC (Planned Development-228 Revised-Highway Commercial) to attach a Detail Site Plan to allow the development of a 4,634-square-foot bank with five drive- thru lanes on 1.028 acres of property located at the northeast corner of S.H. 121 and Denton Tap Road, and authorizing the Mayor to sign. F. Consider approval of an Ordinance amending Section 6- 15-6. Provisions for temporary (on-premise) signs, relating to advertising the sale, rental or lease of property and authorizing the Mayor to sign. Action: Councilmember Tunnell moved to pull Item D and approve Consent Agenda Items A, B, C, E carrying Ordinance No. 91500-A-490 and F carrying Ordinance No. 91500-A-491 2008-1191. Councilmember Peters seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. Councilmember Peters moved to approve Consent Agenda Item D. Councilmember Faught seconded the motion; the motion carried 5-1 with Councilmembers Brancheau, Peters, Faught, Franklin and York voting in favor of the motion; and Councilmember Tunnell voting against the motion. 10. Consider approval of the Comprehensive Annual Financial Report for the fiscal year ending September 30, 2007. Presentation: Jennifer Miller, Director of Finance, introduced Ben Kohnle, who made a presentation to the Council. cm021208 Page 4 of 11 Action: Councilmember Franklin moved to approve the Comprehensive Annual Financial Report for the fiscal year ending September 30, 2007. Councilmember Brancheau seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 11. Consider approval of Case No. PD-227R-SF-12, Bellacere Addition, a zoning change request from PD-227-SF-12 (Planned Development-227-Single Family-12) to PD-227R-SF-12 (Planned Development-227 Revised-Single Family-12), to allow: realignment of the mutual access/fire lane easement; reconfiguration of the common area lot; relocation of the garage access on Lot 4; and construction of four single-family homes on 1.961 acres of property, located along the north side of Sandy Lake Road, approximately 150 feet east of Summer Place Drive. Presentation: Gary Sieb, Director of Planning, made a presentation to the Council. Michael Duffy, applicant, addressed the Council. Public Hearing: Mayor Stover opened the Public Hearing and advised that no one had signed up to speak on this proposal. Action: Councilmember Peters moved to close the Public Hearing and approve Case No. PD-227R-SF-12, Bellacere Addition, a zoning change request from PD-227-SF-12 (Planned Development-227-Single Family-12) to PD- 227R-SF-12 (Planned Development-227 Revised-Single Family-12), to allow: realignment of the mutual access/fire lane easement; reconfiguration of the common area lot; relocation of the garage access on Lot 4; and construction of four single-family homes on 1.961 acres of cm021208 Page 5 of 11 property, located along the north side of Sandy Lake Road, approximately 150 feet east of Summer Place Drive, subject to the following conditions: 1) A tree removal permit is required prior to the start of construction; 2) Tree retribution in the amount of $3,900 will be required at that time; and 3) The drainage and utilities (fire hydrants) will be evaluated further during the engineering plan review. Councilmember York seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 12. Consider approval of the Bellacere Addition, Lots 1-4, Block A, Final Plat, to establish four single-family residential lots, one common area, easements, and a fire lane on 1.961 acres of property, located along the north side of Sandy Lake Road, approximately 150 feet east of Summer Place Drive. Presentation: Gary Sieb, Director of Planning, made a presentation to the Council. Michael Duffy, applicant, addressed the Council. Action: Councilmember Brancheau moved to approve the Bellacere Addition, Lots 1-4, Block A, Final Plat, to establish four single-family residential lots, one common area, easements, and a fire lane on 1.961 acres of property, located along the north side of Sandy Lake Road, approximately 150 feet east of Summer Place Drive, subject to the following conditions: 1) A tree removal permit is required prior to the start of construction; and 2) Tree retribution in the amount of $3,900 will be required at that time. Councilmember Faught seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. cm021208 Page 6 of 11 13. Consider approval of Case No. PD-221R4-HC, Duke Lesley Addition, a zoning change request from PD-221-HC (Planned Development-221-Highway Commercial) to PD-221R4-HC (Planned Development-221 Revision 4- Highway Commercial) to allow two oversized Monument Signs to be located in the medians of Dividend Drive and Point West Boulevard (one at each location). Presentation: Gary Sieb, Director of Planning, made a presentation to the Council. Alex Bennet, representing the applicant, addressed the Council. Public Hearing: Mayor Stover opened the Public Hearing and advised that no one had signed up to speak on this proposal. Action: Councilmember Faught moved to close the Public Hearing and approve Case No. PD-221R4-HC, Duke Lesley Addition, a zoning change request from PD-221-HC (Planned Development-221-Highway Commercial) to PD-221R4-HC (Planned Development-221 Revision 4- Highway Commercial) to allow two oversized Monument Signs to be located in the medians of Dividend Drive and Point West Boulevard (one at each location), subject to the following conditions: 1) Obtain right-of-way use agreement through the Engineering Department. Councilmember York seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 14. Consider approval of the Northpoint, Lot 1R and Lot 2, Block 1, Replat, being a replat of Lot 1, Block 1 of the Northpoint Addition, to allow the abandonment of various easements and the dedication of a mutual access easement allowing for access to the development on Lot 2 in the City of Grapevine on 16.13 cm021208 Page 7 of 11 acres of property, located east of S.H. 121 and south of Northpoint Drive. Presentation: Gary Sieb, Director of Planning, made a presentation to the Council. Bill Martinelli, applicant, addressed the Council. Public Hearing: Mayor Stover opened the Public Hearing and advised that no one had signed up to speak on this proposal. Action: Councilmember Tunnell moved to close the Public Hearing and approve the Northpoint, Lot 1R and Lot 2, Block 1, Replat, being a replat of Lot 1, Block 1 of the Northpoint Addition, to allow the abandonment of various easements and the dedication of a mutual access easement allowing for access to the development on Lot 2 in the City of Grapevine on 16.13 acres of property, located east of S.H. 121 and south of Northpoint Drive. Councilmember Franklin seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 15. Consider approval of awarding RFP # 0090 to Color-Ad, Inc. for the City of Coppell Wayfinding Signs fabrication and installation program in the amount of $283,296 and authorizing the City Manager to sign. Presentation: Jim Witt, City Manager, introduced the Wayfinding Committee. Sharon Logan, Community Information Officer, made a presentation to the Council. Action: Councilmember Peters moved to approve the awarding RFP # 0090 to Color-Ad, Inc. for the City of Coppell Wayfinding Signs fabrication and cm021208 Page 8 of 11 installation program in the amount of $333,280 and authorizing the City Manager to sign. Councilmember Tunnell seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 16. Consider approval of accepting the resignation of Mary Karish from the Keep Coppell Beautiful Board and appointing a new member to fill the unexpired term. Action: Councilmember York moved to approve the resignation of Mary Karish from the Keep Coppell Beautiful Board and appoint Rebecca Carter to fill the unexpired term. Councilmember Franklin seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 17. Consider approval of accepting the resignation of Victor Burke from the Parks and Recreation Board and appointing a new member to fill the unexpired term. Action: Councilmember Faught moved to approve the resignation of Victor Burke from the Parks and Recreation Board and appoint Craig Pritzlaff to fill the unexpired term. Councilmember Peters seconded the motion; the motion carried 6-0 with Councilmembers Brancheau, Peters, Tunnell, Faught, Franklin and York voting in favor of the motion. 18. Mayor and Council Reports. A. Report by Mayor Stover regarding Metroplex Mayors’ Meeting. B. Report by Mayor Stover regarding the Sweetheart Ball. A. Mayor Stover reported on his attendance at the Metroplex Mayor’s Meeting and the speech by Dallas’ Mayor Tom Leppert on regional cooperation. He spoke of three upcoming issues the region faces: a smoking ordinance, the Trinity River Project and the Super Bowl in 2011. Mayor Leppert thanked the region for the support on the Trinity River Project, asked that the region be consistent with the cm021208 Page 9 of 11 smoking concerns, and work together with the Super Bowl, specifically in areas of Public Safety and transportation. B. Mayor Stover commended the Parks and Recreation Department on their 8th annual Sweetheart Ball. The Mother/Son dance was held on Friday and the Father/Daughter dance was held on Saturday with over 300 in attendance. The theme was High School Musical and was highly successful. 19. Necessary action resulting from Work Session. There was no action necessary under this item. EXECUTIVE SESSION (Closed to the Public) Reconvene Executive Session B. Section 511.072, Texas Government Code – Deliberation regarding Real Property. 1. Discussion regarding land sale west of Denton Tap south of Bethel Road. 2. Discussion regarding Right-of-Way Acquisition. Mayor Stover reconvened into Executive Session at 8:35 p.m. as allowed under the above-stated article. Mayor Stover recessed the Executive Session at 8:57 p.m. and reopened the Regular Session. REGULAR SESSION (Open to the Public) 20. Necessary action resulting from Executive Session. There was no action necessary under this item. There being no further business to come before the City Council, the meeting was adjourned. ____________________________________ Douglas N. Stover, Mayor ATTEST: cm021208 Page 10 of 11 ____________________________________ Libby Ball, City Secretary cm021208 Page 11 of 11 WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ City Manager's Office March 11, 2008 8/C ✔ CONTRACT/BID or PROPOSAL Consider approval of awarding RFP #0092, and enter into an agreement with DFW Multimedia, Inc., DFW Video, in the amount of $65,500, as budgeted, for video production services, and authorizing the City Manager to sign. An RFP for video contract services was advertised Feb. 8 and 15, 2008. Two bids were received and opened on Mar. 4, 2008. DFW Multimedia/DFW Video came in at $65,500 and Bass Communications Company came in at $143,650. Funds are budgeted in the Community Information Services department, Other Professional Services. (01-02-037-4220) Staff recommends approval. MEMORANDUM TO: Jim Witt, City Manager Jerod Anderson, Purchasing Agent FROM: Sharon Logan, Community Information Officer DATE: March 4, 2008 REF: RFP #0092, VIDEO PRODUCTION SERVICES RFP #0092 for video production services was submitted and opened on March 4, 2008. Following, is a breakdown of the cost associated with each component supplied under the scope of work. DFW Multimedia Inc., DFW Video, Kevin Slayter 1330 River Bend Dr., Ste. 850, Dallas, TX 75247 Community News Show, CCN $ 37,500 (Assumes 10 shows annually) Coppell Blue 16,000 (Assumes 8 shows annually) Town Hall 3,900 (Assumes 3 shows annually) Production Services for Public Meetings 5,100 (Assumes 34 meetings annually totaling 102 minimum hours) Holiday Parade Live Broadcast 3,000 (Assumes 1 show annually) DFW Multimedia Inc., DFW Video TOTAL $ 65,500 Bass Communications Company, Roby Bass 2244 Starwashed Dr., Midlothian, TX 76065 Community News Show, CCN $ 59,300 (Assumes 11 shows annually) Coppell Blue 47,440 (Assumes 8 shows annually) Town Hall 21,520 (Assumes 3 shows annually) Production Services for Public Meetings 7,650 (Assumes 34 meetings annually with a 3-hour minimum) Holiday Parade Live Broadcast 7,740 (Assumes 1 show annually) Bass Communications Company TOTAL $ 143,650 continued RFP #0092, Video Production Services March 4, 2008 Page 2 Recommendation I respectfully submit the following recommendation: Consider approval of awarding RFP #0092, and enter into an agreement with DFW Multimedia, Inc., DFW Video, in the amount of $65,500, as budgeted, for video production services, and authorizing the City Manager to sign. Should you have any questions, please feel free to contact me. Staff will be available for questions. Video Production Services RFP #00924-Mar-08Service DFW Multimedia Inc. Bass Communications CompanyCommunity News Show 10 shows per year 37,500.00$ 59,300.00$ Coppell Blue 8 shows per year 16,000.00$ 47,440.00$ Town Hall 3 shows per year 3,900.00$ 21,520.00$ Public Meetings 34 meetings per year, 102 hours 5,100.00$ 7,650.00$ Holiday Parade / Special Events3,000.00$ 7,740.00$ TOTAL 65,500.00$ 143,650.00$ WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: Finance March 11, 2008 8/D ✔ CONTRACT/BID or PROPOSAL Consider approval of an Interlocal Agreement between the City of Coppell and the North Central Texas Council of Governments for the cooperative purchasing for TMRS actuarial shared services, and authorizing the City Manager and the Mayor to sign all appropriate documents. Texas Municipal Retirement System (TMRS) which is the provider of retirement benefits for the City's employees is in the process of transitioning actuarial methods. The North Central Texas Council of Governments issued a shared services RFP in order to provide cities with a separate and independent valuation of the rates being proposed by TMRS. The City is entering into this interlocal agreement in order to understand the nature and specific cost drivers of the proposed change from Unit Credit to Projected Unit Credit. Funds are available in the Finance department Other Professional Services account for this interlocal agreement. (01-05-01-4220) Staff recommends approval. $InterlocalNCTCOG-1AR(Consent) Introducing a Shared Services Program The North Central Texas Council of Governments (NCTCOG) and Gabriel, Roeder, Smith & Company (GRS) announce a program for actuarial and consulting services designed to assist those participating municipalities of TMRS who are facing substantial increases in their TMRS contribution rates. Through a procurement process, NCTCOG selected GRS to provide its actuarial and consulting expertise on a shared services basis. Gabriel, Roeder, Smith & Company (GRS) is an actuarial and benefits consulting firm that has served public sector clients since 1938. GRS has locations across the country and enjoys long-standing relationships with over 600 public sector clients. Its work under the shared services program is supported by innovative web- based technology that is client accessible. GRS’ Portal software offers robust reporting capabilities, what-if scenario modeling tools, and a downloadable projection tool. Basic Services The basic services will include an independent replication actuarial valuation of employer’s TMRS benefits in compliance with GASB 25. The basic services will also include the following: A measurement of the actuarial liabilities, present value of projected benefits and normal cost as of December 31, 2007. The estimated annual required contribution (ARC) and accounting expense for the 2009 fiscal year as required under GASB Statement Nos. 25 and 27, using a 25-30 year closed level percentage of pay amortization period. An exhibit showing the individual cost impacts of all available prospective changes currently allowed under the TMRS benefit structure. Two in-person or conference call meetings as mutually agreed upon by the government and GRS. Out of pocket travel expenses for governments located 100 miles or more from downtown Houston or DFW Airport will be charged to the government. For entities with less than 100 participants, basic services meetings are restricted to conference calls only. Unlimited access (for a one year period) to the Scenario Planning Module. This module allows the user to change specified benefit provisions and create “what-if” scenarios. A downloadable interactive projection workbook will be available with each “what-if” scenario. About Gabriel Roeder Smith & Company The Shared Services Program Plan Redesign Studies Some desired plan modifications may not be currently available under TMRS or an entity may not want to use the Portal. For these circumstances, GRS will perform additional studies on a fee per study basis. Additional Services GRS Consultants will also be available to provide additional consulting services (such as non-standard plan design, additional meetings with City Councils, employee groups and/or retiree groups. These services will be provided on an hourly rate basis. Visit the GRS/TMRS Shared Services web site to request a proposal by filling out the questionnaire. The proposal defines the scope of services and the associated fees. The web site address is https:// my.gabrielroeder.com/portal/tmrs. You will receive the proposal letter via email. If the proposal is acceptable and you wish to participate in the Shared Services program, contact GRS at the following email address: sharedservices@ gabrielroeder.com. GRS will respond by sending the engagement agreement, sample contract, an interlocal agreement, and a nondisclosure agreement. TMRS requires a signed nondisclosure agreement from a participating Municipality before it will instruct the current actuary to transmit the Municipality’s participant data. A nondisclosure agreement will be emailed with the sample contract. Due to the severe time constraints imposed on the services offered under the shared services arrangement, it is very important that the signed contract and nondisclosure agreement be returned as soon as possible. Once you have received your valuation results and the individual cost impacts of all benefit changes currently permissible under TMRS statutes, you will be given a log-in and password for the portal. This will allow you unlimited access to produce “what-if” scenarios combining different plan changes or just modeling different contribution patterns under one of the standard benefit changes. For more information regarding the Shared Services program, please contact GRS at 469-524-0000 or via email at sharedservices@gabrielroeder.com. Gabriel Roeder Smith & Company 5605 North MacArthur Boulevard, Suite 870 Consultants & Actuaries Irving, Texas 75038-2631 Copyright © 2008 GRS Action Steps for Participating in the Shared Services Program MASTER AGREEMENT Pursuant to the award of Joint Actuarial Services by the North Central Texas Council of Governments (NCTCOG), this agreement confirms the terms under which the City of Coppell, Texas_ hereinafter referred to as ‘CONTRACTING GOVERNMENT” has engaged Gabriel, Roeder, Smith & Co. hereinafter referred to as “GRS” to perform actuarial consulting services. In as much as this relationship will involve several actuarial reviews and other services that will be governed by the Request for Proposal issued by NCTCOG on January 11, 2008 and our subsequent response to that proposal, we have agreed to establish this “master agreement” defining the general terms and conditions for all work performed. This agreement will not, by itself, authorize the performance of any services. Rather specific services will be authorized through a separate engagement letter that references this master agreement and details the services to be provided and the timeframe and fees required. In the event of an inconsistency between this master agreement and an individual engagement letter, the master agreement will be followed. As described in the above referenced Request for Proposal the following terms apply: A. Tax Exempt Entities. CONTRACTING GOVERNMENT is exempt from manufacturer’s federal excise tax and states sales tax. Tax exemption certificates will be issued upon request. B. Role of NCTCOG. NCTCOG has served as a facilitator to the RFP and award process but the contractual relationship is between GRS and the CONTRACTING GOVERNMENT. D. Fees. GRS agrees to follow the attached pricing schedule (“Attachment A”) for pricing of its services. I. Review of Charges. CONTRACTING GOVERNMENT has the right to review the supporting documentation for any hourly charges or out of pocket expenses assessed to the CONTRACTING GOVERNMENT under the fee schedule. J. Termination. Both CONTRACTING GOVERNMENT and GRS will have the right to terminate this agreement through written notice. CONTRACTING GOVERNMENT will pay any charges or prorate fees incurred to the date the termination notice is received and actuary will cease any in progress work unless specific stopping points are provided in the letter. K. Work Product. The final work product will be the property of the CONTRACTING GOVERNMENT to be used as stated in the specific engagement letter. Ancillary use of the product is permitted but GRS is not responsible for the reliability of those projections. It is understood that all reports are subject to the open records laws of the State of Texas and the contracting jurisdiction. L. Independent Contractor. All the services provided by GRS will be as an independent contractor. None of the terms in the engagement letter will be interpreted to create an agency or employment relationship. N. Term. The term of this master agreement will be governed by the afore referenced NCTCOG RFP and will expire on February 28, 2009. O. Complete Agreement. This letter combined with the specific engagement letter and as clarified by the RFP and Proposal set forth the entire agreement between the CONTRACTING GOVERNMENT and GRS. P. Indemnification. GRS covenants and agrees to indemnify and hold harmless and defend and does hereby indemnify, hold harmless, and defend NCTCOG and CONTRACTING GOVERNMENTS, its officers and employees, from and against any and all suits or claims for damages or injuries, including death, to persons or property, whether real or asserted, arising out of any negligent act or omission on the part of the contractor, its officers, agents, servants, employees, or subcontractors, and the contractor does hereby assume all liability for injuries, claims or suits for damages to persons, property, or whatever kind of character, whether real or asserted, occurring during or arising out of the performance of a contract as a result of any negligent act or omission on the part of the contractor, its officers, agents, servants, employees, or subcontractors to the extent permitted by law. Please review this master agreement letter and the attached schedules and indicate your acceptance by having an official of CONTRACTING GOVERNMENT sign below. Q. Force Majeure. A force majeure event shall be defined to include governmental decrees or restraints, acts of God (except that rain, wind, flood or other natural phenomena normally expected for the locality, shall not be construed as an act of God), work stoppages due to labor disputes or strikes, fires, explosions, epidemics, riots, war, rebellion, and sabotage. If a delay or failure of performance by either party to this contract results from the occurrence of a force majeure event, the delay shall be excused and the time fixed for completion of the work extended by a period equivalent to the time lost because of the event. R. Professional Standards. GRS will provide qualified personnel for each engagement and follow all professional standards ascribed by the American Academy of Actuaries and the Governmental Accounting Standards Board. S. Administrative Fee. GRS will assess as part of its first billing to each client covered by this agreement a one time Administrative Fee of $100. This fee will compensate NCTCOG for the costs of administering this agreement and is due within a month of collection by GRS. GABRIEL, ROEDER, SMITH & CO. By:____________________________ Date:________________________ Title: __________________________ CONTRACTING GOVERNMENT By ____________________________ Date:________________________ Title: City Manager Attachment A Pricing of Services Actuarial firm agrees to assess and collect on behalf of NCTCOG a $100 administrative fee to offset the costs associated with this RFP. Pricing assumes 20% paid upon acceptance by the government of the engagement, 50% upon receipt of the matching audit report and 30% upon acceptance of the final report. * Base Services: The Base Service Fee above includes the exhibit of the sensitivity analysis for all possible changes in the current TMRS structure on an individual basis; we propose to have this count as three (3) studies. Next, we will certify up to two (2) impact statements under the base structure, making a total of five (5). The Base Service Fee includes two (2) meetings as described in the RFP. In addition, the Base Service Fee includes participation in the web portal with unlimited use. Up to two (2) hours of technical assistance will be provided over the telephone at no cost to Governments by Total Participants (Active, Retired, Terminated) Base Services including base valuation, full sensitivity analysis, up to 2 certifications and reconciliation to TMRS* Cost Per Additional Option** Hourly Rate for Additional Services by consultant level 1A Less than 50 $5,000 $1,500/$1,000/$500 ***See Below 1B Between 50 and 100 $7,000 $1,500/$1,000/$500 ***See Below 2 Between 101 and 250 $10,000 $1,500/$1,000/$500 ***See Below 3 Between 251 and 500 $11,000 $1,500/$1,000/$500 ***See Below 4 Between 501 and 1000 $12,000 $1,500/$1,000/$500 ***See Below 5 Between 1001 and 2000 $13,000 $1,500/$1,000/$500 ***See Below 6 Between 2001 and 4000 $15,000 $1,500/$1,000/$500 ***See Below 7 Between 4001 and 6000 $15,000 $1,500/$1,000/$500 ***See Below 8 Between 6001 and 8000 $17,500 $1,500/$1,000/$500 ***See Below 9 Between 8001 and 10,000 $17,500 $1,500/$1,000/$500 ***See Below 10 Over 10,000 $17,500 $1,500/$1,000/$500 ***See Below participating members. As previously discussed and proposed, webcasts will be used for training purposes. For entities with 100 participants or less, the price still includes two (2) meetings with the entity but the quoted price is for telephone conference meetings only. The entities can still request in-person meeting(s), but these meetings will be billed separately as “additional meetings” as provided for in our Proposal. For project budgeting purposes, the proposed fee schedule for cities with more than 100 participants assumes two (2) in- person meetings. At the cities’ option, these meetings can be conducted as teleconferences, but this will not change our pricing schedule. ** The following menu describes the cost per additional option: • Provision currently available under TMRS, but: Entity did not evaluate before hand: $1,000, includes certification Entity did evaluate and only needs certification: $500 Entity runs impact statement in portal, no certification: $0 and unlimited • Standard provision but not currently available under TMRS, including impact statement and projection: $1,500. • Non-standard provisions will be billed either based on the time charges or based on a fixed fee determined before the beginning of the study. *** Our hourly rates are based on job description. The hourly rates for this project are shown below: Class of Personnel* Hourly Rates Senior Consultant $350 Consultants $275 Senior Analysts $200 Actuarial Analysts $150 Systems Analysts and Programmers $200 Administrative Support Staff $110 Travel charges: For the 2 meetings that are included in the Base Service Fee, GRS will invoice reasonable out of pocket expenses for meetings outside of the 100 mile radius described in the RFP. For additional meetings, no matter the location, GRS will invoice reasonable out of pocket expenses, plus 50% of the stated rates above for time while traveling. Texas Municipal Retirement System Non Disclosure Agreement This Non Disclosure Agreement (the “Agreement”) is made on and effective as of this ______ day of ______________, 2008 by and between the City of __________________________________, Texas, a Texas municipality (“City”) and the Texas Municipal Retirement System (“TMRS”). RECITALS WHEREAS, City is a municipality that participates in TMRS; and WHEREAS, City has hired an actuarial firm to perform actuarial services which require City participant data from TMRS; and WHEREAS, TMRS must protect the confidentiality of this participant data pursuant to Sections 552.101 and 855.115 of the Government Code; and WHEREAS, TMRS may disclose such information pursuant to the terms and conditions herein; * * * NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge and confirm, the parties agree as follows: 1. For the purposes of this Agreement, “Confidential Information” shall mean only TMRS participant data which is subject to Section 855.115 of the Government Code, including, but not limited to, any information concerning an individual member, retiree, annuitant, or beneficiary, whether in electronic or written form provided by TMRS to any employee, officer, representative, contractor or agent of the City (each a “Receiving Party”) during the term of this Agreement. Confidential information will not include any information which (i) is or becomes publicly available, (ii) is already in the City’s possession and not otherwise subject to the confidentiality provisions of Section 855.115 of the Government Code; (iii) is or becomes available to the City on a non-confidential basis from a source other than TMRS, provided that such source is not known to be subject to any legal or contractual obligation to TMRS to keep such information confidential, or (iv) is independently developed by the City or on the City’s behalf without violating any of City’s obligations hereunder. 2. The City represents that any of its employees, officers, representatives, contractors or agents who will receive the Confidential Information, will, prior to receiving such information, sign and agree to be bound by language at least as restrictive as the language contained in this Agreement, regarding the use and protection of the Confidential Information. 3. The City or any Receiving Party agrees that all Confidential Information: a. shall be maintained in accordance with Section 855.115 of the Government Code and in strict confidence by such Receiving Party except as required by an order of a court of competent jurisdiction or other legal process; b. shall not be disclosed by the Receiving Party to any third party other than the employees or agents of such Receiving Party who have a need to know the information in connection with the purpose stated in the Recitals; and c. shall return the Confidential Information to TMRS or destroy any and all originals and copies upon completion of the set task for which it is required or at the end of an appropriate record retention period. Page 2 of 2 4. The City or any Receiving Party shall not publish any report, press release, data or other information regarding or determined from such Confidential Information to the extent the report, press release, data or other information includes individual participant data in a form identifiable with a specific individual and whose release would be prohibited by Section 855.115 of the Government Code, unless otherwise required by law. 5. The parties agree that if a breach of this Agreement occurs by a Receiving Party, TMRS shall suffer irreparable harm and significant injury and loss to a degree which would be difficult to ascertain and which would not be fully compensable by damages alone, and that TMRS shall have the right to invoke the jurisdiction of the courts to seek immediate temporary or permanent injunctive relief, specific performance or other equitable relief, without bond, and without prejudice to any other rights and remedies available to TMRS. 6. This Agreement is to be construed and interpreted in accordance with the laws of the State of Texas without regard to its conflicts of laws provisions. It is agreed that venue shall be in the District Court of Travis County, Texas. 7. Each party represents that the person signing below has the requisite right and authority to execute this Agreement on behalf of its organization and to bind it to the provisions hereof. The parties further agree that this Agreement contains the entire understanding of the parties with respect to the subject matter hereof and that there are no other agreements or understandings with respect to the subject matter. 8. If any third person or entity requests or seeks to compel the City to disclose or produce any information provided to the City by TMRS under this Agreement which is subject to Section 855.115 of the Government Code, or claims an entitlement to any such information on the grounds that such information is alleged or claimed to be generally available to the public or to constitute in whole or in part a public record, document or report under applicable law, the City agrees to file a timely request for an opinion of the attorney general seeking to withhold the information under the Texas Public Information Act. In addition, the City agrees to use its best efforts to notify TMRS within two (2) business days of its receipt of such a request, but in no case later than is reasonably necessary to provide TMRS an adequate opportunity to request a legal opinion or to consent to or seek to prevent such disclosure through protective order or other appropriate remedy. 9. The parties agree that Chapter 2260, Texas Government Code, is applicable to this Agreement and the dispute resolution process provided for in Chapter 2260 will be used by TMRS and City to attempt to resolve any claim for breach of contract or other claim made by City that cannot be resolved in the ordinary course of business. The Executive Director of TMRS or his designee will examine the City’s claim and any counterclaim and negotiate with City in an effort to resolve such claims. The parties specifically agree that (i) neither the execution of the Agreement by TMRS nor any other conduct, action or inaction of any representative of TMRS relating to the Agreement constitutes or is intended to constitute a waiver of TMRS’ sovereign immunity to suit; and (ii) TMRS has not waived its right to seek redress in the courts or to a jury trial. IN WITNESS WHEREOF, the parties have executed this Agreement on the date(s) set forth opposite the signatures of their authorized representatives to be effective for all purposes on the date first written above. CITY OF_____________________________ TEXAS MUNICIPAL RETIREMENT SYSTEM BY: ______________________________ BY:____________________________ NAME:______________________________ NAME: Eric Henry TITLE:______________________________ TITLE: EXECUTIVE DIRECTOR AND CHIEF INVESTMENT OFFICER DATE: ______________________________ DATE:__________________________ INTERLOCAL AGREEMENT FOR COOPERATIVE PURCHASING FOR TMRS ACTUARIAL SHARED SERVICES THIS INTERLOCAL AGREEMENT (“Agreement”), made and entered into pursuant to the Texas Interlocal Cooperation Act, Chapter 791, Texas Government Code (the “Act”), by and between the North Central Texas Council of Governments, hereinafter referred to as “NCTCOG,” having its principal place of business at 616 Six Flags Drive, Arlington, Texas 76011, and City of Coppell, Texas a local government, created and operated to provide one or more governmental functions and services, hereinafter referred to as “Participant,” having its principal place of business at 255 Parkway Blvd, Coppell, Texas 75019. W I T N E S S E T H WHEREAS, NCTCOG is a regional planning commission and political subdivision of the State of Texas operating under Chapter 391, Texas Local Government Code; and WHEREAS, NCTCOG has performed a procurement process for TMRS Actuarial Services for local municipalities; and each entity will contract directly for actuarial services with Gabriel Roeder Smith & Company (GRS); and WHEREAS, NCTCOG’s Executive Board approved a resolution authorizing the interlocal agreements for procurement of GRS actuarial services at its February 28, 2008 meeting; WHEREAS, pursuant to the Act, NCTCOG is authorized to contract with eligible entities to perform governmental functions and services, including the development of a standard approach for acquiring actuarial services; and WHEREAS, in reliance on such authority, NCTCOG has a cooperative purchasing program under which it performs procurement with eligible entities under the Act; and WHEREAS, Participant has represented that it is an eligible entity under the Act, that by Administrative Action has authorized this Agreement on March 25, 2008 and that it desires to participate in a cooperative purchasing effort based on the terms set forth below; and NOW, THEREFORE, NCTCOG and the PARTICIPANT do hereby agree as follows: ARTICLE 1: LEGAL AUTHORITY The Participant represents and warrants to NCTCOG that (1) it is eligible to contract with NCTCOG under the Act because its a local government, as defined in the Act, and (2) it possesses adequate legal authority to enter into this Contract. ARTICLE 2: APPLICABLE LAWS NCTCOG and the Participant agree to conduct all activities under this Agreement in accordance with all applicable rules, regulations, and ordinances and laws in effect or promulgated during the term of this Agreement. ARTICLE 3: WHOLE AGREEMENT This Agreement and any attachments, as provided herein, constitute the complete contract between the parties hereto, and supersede any and all oral and written agreements between the parties relating to matters herein. The Agreement will be between Gabriel Roeder Smith & Company (GRS) and the contracting entity for services performed. ARTICLE 4: BILLINGS Billings will be generated for the Actuarial Shared Services through GRS based upon Administrative Fee of ($100). NCTCOG and the Participant agrees that each will pay for all expenses associated with this Agreement for which it is responsible from then current revenues available to each entity. Interlocal Agreement - 2/29/2008 ARTICLE 5: CHANGES AND AMENDMENTS This Agreement may be amended only by a written amendment executed by both parties, except that any alternations, additions, or deletions to the terms of this Agreement which are required by changes in Federal and State law or regulations are automatically incorporated into this Agreement without written amendment hereto and shall become effective on the date designated by such law or regulation. NCTCOG reserves the right to make changes in the scope of services offered through the Cooperative Purchasing Program to be performed hereunder. THIS INSTRUMENT HAS BEEN EXECUTED IN TWO ORIGINALS BY THE PARTIES HERETO AS FOLLOWS: *Denotes required fields NOTE: Facsimile copies of this document will not be acceptable as ORIGINALS. *City of Coppell, Texas Name of Participant (local government, agency, or non-profit corporation) *255 Parkway Blvd Mailing Address *Coppell, Texas 75019 City State ZIP Code *By: Signature of Authorized Official *Douglas N. Stover Typed Name of Authorized Official *Mayor Typed Title of Authorized Official Date North Central Texas Council of Governments 616 Six Flags Drive, Arlington, Texas 76011 *By: Signature of Authorized Official * Typed Name of Authorized Official * Typed Title of Authorized Official Date Interlocal Agreement - 2/29/2008 WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ PLANNING March 11, 2007 8/E ✔ PRESENTATION Consider approval of a nine-month extension to the expiration date (December 12, 2008) of the Alexander Court, Lots 1-29, Block A, Preliminary Plat, to allow the subdivision of 29 single-family lots and two common area lots on 18.5 acres of property located at the northwest corner of Bethel and Denton Tap Roads. On May 17, 2007, the Planning Commission unanimously approved the Alexander Court, Lots 1-29, Block A, Preliminary Plat. (5-0) On June 12, 2007, Council unanimously approved the preliminary plat and granted the Planning Commission Final Plat Authority. (6-0) On January 17, 2008, the Planning Commission unanimously denied the Alexander Court, Lots 1-29, Block A, Final Plat. (7-0) Please see the attached letter from Walter W. Leonard dated February 25, 2008, requesting a nine-month extension in order to await the finalization of this plat and its approval. The Planning Commission does not have the authority to grant extensions. If Council were to approve this request, this preliminary plat would expire December 12, 2008. Staff recommends approval. @Alex CT, L1-29X, BA, PP 1-AR (con) WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ ȱ PLANNING March 11, 2008 8/F ✔ ORDINANCE Consider approval of an Ordinance for Case No. PD-221R4-HC, Duke Lesley Addition, zoning change from PD-221-HC (Planned Development-221-Highway Commercial) to PD-221R4-HC (Planned Development-221 Revision 4- Highway Commercial) to allow two oversized Monument Signs to be located in the medians of Dividend Drive and Point West Boulevard (one at each location) and authorizing the Mayor to sign. On January 17, 2008 the Planning Commission unanimously recommended approval of this zoning change (7-0), subject to the above-stated conditions. Commissioners Frnka, Shute, Haas, Fox, Sangerhausen, Shipley and Kittrell voted in favor, none opposed. On February 12, 2008, Council unanimously approved this zoning change (6-0). Staff recommends APPROVAL. @PD-221R4-HC, DLA,ORD 1-AR(con) AN ORDINANCE OF THE CITY OF COPPELL, TEXAS ORDINANCE NO. ________ AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, AMENDING THE COMPREHENSIVE ZONING ORDINANCE AND MAP OF THE CITY OF COPPELL, TEXAS, AS HERETOFORE AMENDED, BY GRANTING A CHANGE IN ZONING FROM PD- 221-HC (PLANNED DEVELOPMENT-221-HIGHWAY COMMERCIAL) TO PD-221R4-HC (PLANNED DEVELOPMENT- 221 REVISION 4- HIGHWAY COMMERCIAL) TO ALLOW TWO OVERSIZED MONUMENT SIGNS TO BE LOCATED IN THE MEDIANS OF DIVIDEND DRIVE AND POINT WEST BOULEVARD (ONE AT EACH LOCATION) AND BEING MORE PARTICULARLY DESCRIBED IN EXHIBIT “A”, ATTACHED HERETO AND INCORPORATED HEREIN FOR ALL PURPOSES; PROVIDING FOR THE APPROVAL OF ELEVATION OF THE MONUMENT SIGN, MONUMENT SIGN DETAILS, LANDSCAPE PLAN, AND SIGN ELEVATIONS AND DIVIDEND DRIVE ENTRY PLAN, ATTACHED HERETO AS EXHIBITS “B”, “C”, “D” AND “E”; PROVIDING FOR DEVELOPMENT REGULATIONS; PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING A PENALTY OF FINE NOT TO EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Planning and Zoning Commission and the governing body of the City of Coppell, Texas, in compliance with the laws of the State of Texas and pursuant to the Comprehensive Zoning Ordinance of the City of Coppell, have given requisite notices by publication and otherwise, and after holding due hearings and affording a full and fair hearing to all property owners generally, and to all persons interested and situated in the affected area and in the vicinity thereof, the said governing body is of the opinion that Zoning Application No. PD-221R4-HC should be approved, and in the exercise of legislative discretion have concluded that the Comprehensive Zoning Ordinance and Map should be amended. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS: SECTION 1. That the Comprehensive Zoning Ordinance and Map of the City of Coppell, Texas, duly passed by the governing body of the City of Coppell, Texas, as TM 25649.2.000 heretofore amended, be and the same is hereby amended by granting a change in zoning from PD-221-HC (Planned Development-221-Highway Commercial) to PD-221R4-HC (Planned Development-221 Revision 4- Highway Commercial) to allow two oversized Monument Signs to be located in the medians of Dividend Drive and Point West Boulevard (one at each location), and being more particularly described in Exhibit “A”, attached hereto and made a part hereof for all purposes. SECTION 2. This Planned Development shall be developed and used only in accordance with the development standards as follows: A) Except as amended herein and as provided in Section 3 of this Ordinance, the property shall be developed in accordance with Ordinances 91500-A-453 and 91500-A-476 which is incorporated herein as set forth in full and hereby republished. B) A right-of-way use agreement shall be required between the property owner and the city to permit the construction and maintenance of such monument signs and landscaping within the public right-of-way. SECTION 3. The property shall be developed and used in accordance with the HC (Highway Commercial) development regulations and standards under the Coppell Zoning Ordinance, except as amended in the development regulations hereinbefore set forth and as provided on the Elevation of the Monument Sign, Monument Sign Details, Landscape Plan, and Sign Elevations and Dividend Drive Entry Plan, attached hereto as Exhibits “B”, “C”, “D” and “E” which is made a part hereof for all purposes, which are hereby approved. TM 25649.2.000 SECTION 4. That the above property shall be used only in the manner and for the purpose provided for by the Comprehensive Zoning Ordinance of the City of Coppell, as heretofore amended and as amended herein. SECTION 5. That all provisions of the Ordinances of the City of Coppell, Texas, in conflict with the provisions of this ordinance be, and the same are hereby, repealed, and all other provisions not in conflict with the provisions of this ordinance shall remain in full force and effect. SECTION 6. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof other than the part so decided to be unconstitutional, illegal or invalid, and shall not affect the validity of the Comprehensive Zoning Ordinance as a whole. SECTION 7. An offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Comprehensive Zoning Ordinance, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 8. That any person, firm or corporation violating any of the provisions or terms of this ordinance shall be subject to the same penalty as provided for in the Comprehensive Zoning Ordinance of the City of Coppell, as heretofore amended, and upon conviction shall be punished by a fine not to exceed the sum of Two Thousand Dollars ($2,000.00) for each offense; and each and every day such violation shall continue shall be deemed to constitute a separate offense. TM 25649.2.000 SECTION 9. That this ordinance shall take effect immediately from and after its passage and the publication of its caption, as the law and charter in such cases provide. DULY PASSED by the City Council of the City of Coppell, Texas, this the _______ day of ___________________, 2008. APPROVED: _____________________________________ DOUGLAS N. STOVER, MAYOR ATTEST: _____________________________________ LIBBY BALL, CITY SECRETARY APPROVED AS TO FORM: _________________________________ ROBERT E. HAGER, CITY ATTORNEY (REH/cdb Reviewed & Revised 08/07/07) WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ Engineering March 11, 2008 8/G ✔ CONTRACT/BID or PROPOSAL Consider approval of a Right of Way Use Agreement between the City of Coppell and Duke Realty, LP for the installation of monument signs in the right-of-way of Dividend Drive and Point West Boulevard; and authorizing the City Manager to sign. Approval of the Right of Way Use Agreement will allow the installation of monument signs in the median of Dividend Drive and Point West Boulevard. Staff recommends approval of the ROW Use Agreement. #Duke Lesley ROW Use Agmt "CITY OF COPPELL ENGINEERING - EXCELLENCE BY DESIGN" MEMORANDUM FROM THE DEPARTMENT OF ENGINEERING To: Mayor and City Council From: Kenneth M. Griffin, P.E., Director of Engineering/Public Works Date: March 11, 2008 RE: Consider approval of a Right of Way Use Agreement between the City of Coppell and Duke Realty, LP for the installation of monument signs in the right-of-way of Dividend Drive and Point West Boulevard; and authorizing the City Manager to sign. On February 12, 2008, Council approved a zoning change for Duke Lesley Addition to allow for monument signs to be placed in the medians of Dividend Drive and Point West Boulevard. The only condition to the approval was to “obtain a right of way use agreement through the Engineering Department.” Staff recommends approval of the right-of-way use agreement between the City of Coppell and Duke Realty, LP and will be available to answer questions at the Council meeting. 12 Consider approval of the Bellacere Addition Lots 1 4 Final Plat to establish four single family residential common area easements and a fire lane on L 961 acres of property located along the north side of Sandy Lake Road approximately 150 feet east of Summer Place Drive 1 A tree removal permit is required prior to the start of 2 Tree retribution in the amount of 3 900 will be and The drainage and utilities fire hydrants during the engineering plan review Gary Director of Planning made apresentation to the Presentation Councilmember Brancheau moved to approve the Lots 14 Block A Final Plat to establish fOLlr single family lots one common area easements and a fire lane on 1 961 property located along the north side of Sandy Lake Road 150 feet east of Summer Place Drive subject to the following 1 A tree len1ova pennit is required prior to the start of construction Gmd 2 Trec rctribu tion in the amount of 3 900 will be required at that time Councilmember Faught seconded the motion the with Councilmembers Brancheau Peters Tunnell York voting in favor of the motion 7 13 Consider approval of Case No PD 221R4 HC Duke Lesley Addition a zoning change request from PD 221 HC Planned Development 221 Highway Commercial to PD 221R4 HC un021 208 Page 6 of 10 Planned Development 221 Revision 4 Highway Commercial to allow two oversized Monument Signs to be located in the medians of Dividend Drive and Point West Boulevard one at each location Presentation Gary Sieb Director of Planning made a presentation to the Council Alex Bennet representing the applicant addressed the Council Public Hearing Mayor Stover opened the Public Hearing and advised that no one had signed up to speak on this proposal Action Councilmember Faught moved to close the Public Hearing and approve Case No PD 221R4 HC Duke Lesley Addition a zoning change request from PD 221 HC Planned Development 221 Highway Commercial to PD 221R4 HC Planned Development 221 Revision 4 Highway Commercial to allow two oversized Monument Signs to be located in the medians of Dividend Drive and Point West Boulevard one at each location subject to the following conditions 1 Obtain right of way use agreement through the Engineering Department Councilmember York seconded the motion the motion carried 6 0 with Councilmembers Brancheau Peters Tunnell Faught Franklin and York voting in favor of the motion 14 Consider approTal of the North point Lot 1 R and LotI 1 Replat being a replat of Lot 1 Block 1 of the NGtthpQ t d ition to allow the abandonment of various easements and the dedication of a mutual access easement allowing for access to the development on Lot 2 in the City of Grapevine on 16 13 acres of property located east of S H 121 and south of Northpoint Drive cm021208 Page 7 of 10 ____________________________________ Right-of-way Use Agreement - Page 1 STATE OF TEXAS § § RIGHT OF WAY USE AGREEMENT COUNTY OF DALLAS § THIS AGREEMENT (“AGREEMENT”) is made by and between the City of Coppell, Texas (“CITY”), acting by and through its authorized representatives, and Duke Realty Corporation (“LICENSEE”). WITNESSETH: WHEREAS, LICENSEE desires to construct monument signs within the right of way of Dividend Drive and Point West Boulevard (the “IMPROVEMENTS”), WHEREAS, the right of way was dedicated to the CITY by the plat of Lot 1 & Lot 2 Block C, Duke Lesley Addition, Dividend Drive and Point West Boulevard filed on July 5, 2007 in Vol. 20070240528 more particularly described in Exhibit “A”, attached hereto and incorporated herein as if set forth in full (the “PROPERTY”); and WHEREAS, LICENSEE has requested the CITY allow the use and occupancy of the right of way for the IMPROVEMENTS; NOW THEREFORE, in consideration of the covenants contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Purpose: The CITY hereby grants LICENSEE a revocable license for the purpose of constructing and maintaining the IMPROVEMENTS (the “PERMITTED IMPROVEMENTS”) within the right of way of the CITY. 2. Term: The term of this License shall be perpetual, subject, however, to termination by the CITY as provided herein. 3. Non-Exclusive: This License is nonexclusive and is subject to the following: a) to any existing utility, drainage or communications facilities located in, on, under or upon the PROPERTY; b) to all vested rights presently owned by any utility or communication company, public or private, for the use of the PROPERTY for facilities presently located within the PROPERTY; and c) to any existing lease, license, or other interest in the PROPERTY granted by the CITY to any individual, corporation or other entity, public or private. 4. Environmental Protection: LICENSEE shall not use or permit the use of the PROPERTY for any purpose that may be in violation of any laws pertaining to the health of the environment, including without limitation, the comprehensive environmental response, compensation and liability act of 1980 (“CERCLA”), the resource conservation and recovery act of 1976 (“RCRA”), the Texas Water Code, and the Texas Solid Waste Disposal Act. LICENSEE warrants that the use of the PROPERTY will not result in the disposal or other release of any hazardous substance or solid waste on or to the PROPERTY, and that LICENSEE will take all steps necessary to ensure that no such hazardous substance or solid ____________________________________ Right-of-way Use Agreement - Page 2 waste will ever be discharged onto the PROPERTY or adjoining property by LICENSEE. The terms “hazardous substance waste” shall have the meaning specified in CERCLA, and the term solid waste and disposal (or dispose) shall have the meaning specified in the RCRA; provided, however, that in the event either CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment; and provided further, at the extent that the laws of the State of Texas establish a meaning for hazardous substance, release, solid waste, or disposal which is broader than that specified in the CERCLA or RCRA, such broader meaning shall apply. LICENSEE shall indemnify and hold the CITY harmless against all costs, environmental clean up of the PROPERTY resulting from LICENSEE’S use of the PROPERTY under this License in violation of this AGREEMENT, as proven in a court of competent jurisdiction. 5. Mechanic’s liens not permitted: LICENSEE shall fully pay all labor and materials used in, on or about the PROPERTY, and will not permit or suffer any mechanic’s or material man’s liens of any nature to be affixed against the PROPERTY by reason of any work done or materials furnished to the PROPERTY at LICENSEE’S instance or request. 6. Future CITY use: This License is made expressly subject and subordinate to the right of the CITY to use the PROPERTY for any public purpose whatsoever. In the event that the CITY shall, at any time subsequent to the date of this AGREEMENT, at its sole discretion, determine that the relocation or removal of the PERMITTED IMPROVEMENTS shall be necessary or convenient for CITY’S use of the PROPERTY, LICENSEE shall at its sole cost and expense make or cause to be made such modifications or relocate the PERMITTED IMPROVEMENTS so as not to interfere with the CITY’S or CITY’S assigns’ use of the PROPERTY. A minimum of thirty (30) days written notice for the exercise of the above action shall be given by the CITY to LICENSEE, and LICENSEE shall promptly commence to make the required changes and complete them as quickly as possible, or reimburse the CITY for the reasonable cost of making such required changes. 7. Duration of License: This License shall terminate and be of no further force and effect in the event LICENSEE shall discontinue or abandon the use of the PERMITTED IMPROVEMENTS, or in the event LICENSEE shall remove the PERMITTED IMPROVEMENTS from the PROPERTY, or upon termination by the CITY in accordance with this AGREEMENT, whichever event first occurs; or, in the event that the CITY abandons the PROPERTY, then this AGREEMENT shall be of no further effect. 8. Compliance with laws: LICENSEE agrees to abide by and be governed by all laws, ordinances and regulations of any and all governmental entities having jurisdiction over LICENSEE. 9. Indemnification: LICENSEE shall defend, protect and keep the CITY forever harmless and indemnified against and from any penalty, or any damage, or charge, imposed for any violation of any law, ordinance, rule or regulation arising out of the use of the PROPERTY by LICENSEE, whether occasioned by the neglect of Licensee, agents, contractors or assigns, or those invitees of LICENSEE. LICENSEE shall at all times defend, protect and indemnify, and it is the intention of the parties hereto that LICENSEE hold the CITY harmless against and from any and all loss, cost, damage, or expense, including attorney’s fee, arising out of or from ____________________________________ Right-of-way Use Agreement - Page 3 any accident or other occurrence on or about the PROPERTY causing personal injury, death or property damage resulting from the use of the PROPERTY by LICENSEE, its agents and invitees, except when caused by the willful misconduct or negligence of the CITY, its officers, employees or agents, and only then to the extent or the proportion of any default or conduct determined against the CITY for its willful misconduct or negligence. LICENSEE shall at all times defend, protect, indemnify and hold the CITY harmless against and from any and all loss, cost, damage, or expense, including attorney’s fees arising out of or from any and all claims or causes of action resulting from any failure of LICENSEE, its officers, employees, agents, contractors, or assigns, in any respect to comply with and perform all the requirements and provisions hereof. 10. Action upon termination: At such time as this License may be terminated or canceled for any reason whatsoever, LICENSEE, upon request by the CITY, shall remove all PERMITTED IMPROVEMENTS and appurtenances owned by it, situated in, under or attached to the PROPERTY, and shall restore such PROPERTY to substantially the condition of the PROPERTY prior to LICENSEE’S encroachment at LICENSEE’S sole expense. 11. Termination: This AGREEMENT may be terminated in any of the following ways: a. Written agreement of both parties; b. By the CITY giving LICENSEE thirty (30) days prior written notice; c. By the CITY upon failure of LICENSEE to perform its obligations as set forth in this AGREEMENT, after thirty (30) days prior written notice to LICENSEE and opportunity to cure; d. By the CITY abandoning any interest in the PROPERTY. 12. Notice: When notice is permitted or required by this AGREEMENT, it shall be in writing and shall be deemed delivered in person or when placed, postage prepaid in the United State mail, certified return receipt requested, and addressed to the parties at the address set forth opposite their signature. Either party may designate from time to time another and different address for receipt of notice by giving notice of such change of address to the other party. 13. Attorney’s Fees: Any party to this AGREEMENT, who is the prevailing party in any legal proceeding against any other party brought under or with relation to this AGREEMENT shall be entitled to recover court cost and reasonable attorney’s fees from the non-prevailing party. 14. Governing Law: This AGREEMENT is governed by the laws of the State of Texas; and venue for any action shall be in Dallas County, Texas. 15. Binding Effect: This AGREEMENT shall be binding upon and inure to the benefit of the executing parties and their respective heirs, personal representatives, successors and assigns. 16. Entire Agreement: This AGREEMENT embodies the entire agreement between the parties and supersedes all prior agreements, understandings, if any, relating to the PROPERTY and the matters addressed herein, and may be amended or supplemented only by written instrument executed by the party against whom enforcement is sought. ____________________________________ Right-of-way Use Agreement - Page 4 17. Recitals: The recitals to this AGREEMENT are incorporated herein by reference. 18. Legal Construction: The provisions of this AGREEMENT are hereby declared covenants running with the PROPERTY and are fully binding on all successors, heirs, and assigns of LICENSEE who acquire any right, title, or interest in or to the PROPERTY or any part thereof. Any person who acquires any right, title, or interest in or to the PROPERTY, or any part hereof, thereby agrees and covenants to abide by and fully perform the provisions of this AGREEMENT with respect to said right, title or interest in the PROPERTY. 19. Successor Owner Obligations: Notwithstanding the above, if and when LICENSEE assigns all of its right, title or interest in the PROPERTY to a successor owner (“SUCCESSOR OWNER”), LICENSEE will only have obligations hereunder to the CITY relating only to the period of time during which LICENSEE held fee simple title to the PROPERTY, according to the Dallas County real property records. Similarly, each SUCCESSOR OWNER of the PROPERTY will only be responsible for its obligations hereunder to the CITY relating only to the period of time during which the SUCCESSOR OWNER held fee simple title to the PROPERTY, according to the Dallas County real property records. ____________________________________ Right-of-way Use Agreement - Page 5 EXECUTED this _______ day of ____________, 2008. CITY OF COPPELL, TEXAS By: ________________________________ JIM WITT, CITY MANAGER ATTEST: By: ________________________________ LIBBY BALL, CITY SECRETARY Duke Realty Limited Partnership, an Indiana limited partnership By: Duke Realty Corporation, an Indiana corporation, sole general partner By: _____________________________ Name: Jeff Thornton Title: Senior Vice President ____________________________________ Right-of-way Use Agreement - Page 6 LICENSEE’S ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned authority a Notary Public in and for the State of Texas, on this day personally appeared , known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said, and that he executed the same as the act of said for the purpose and consideration therein expressed and in the capacity therein. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the _________ day of _________________, 2008. ___________________________________ Notary Public, State of Texas My Commission Expires: _________________________ ____________________________________ Right-of-way Use Agreement - Page 7 CITY ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF DALLAS § BEFORE ME, the undersigned authority a Notary Public in and for the State of Texas, on this day personally appeared Jim Witt being the City Manager of the City of Coppell, Texas, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Coppell, Texas, and that he executed the same as the act of said City of Coppell, Texas for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the _________ day of _________________, 2008. ___________________________________ Notary Public, State of Texas My Commission Expires: _________________________ WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ PLANNING March 11, 2008 8/H ✔ ORDINANCE Consider approval of an Ordinance for Case No. PD-227R-SF-12, Bellacere Addition, zoning change from PD-227-SF-12 (Planned Development-227-Single Family-12) to PD-227R-SF-12 (Planned Development-227 Revised-Single Family-12), to allow: realignment of the mutual access/fire lane easement; reconfiguration of the common area lot; relocation of the garage access on Lot 4; and construction of four single-family homes on 1.961 acres of property, located along the north side of Sandy Lake Road, approximately 150 feet east of Summer Place Drive and authorizing the Mayor to sign. On January 17, 2008 the Planning Commission unanimously recommended approval of this zoning change (7-0), subject to the above-stated conditions. Commissioners Frnka, Shute, Haas, Fox, Sangerhausen, Shipley and Kittrell voted in favor, none opposed. On February 12, 2008, Council unanimously approved this zoning change (6-0). Staff recommends APPROVAL. @PD-227R-SF-12, BA,ORD 1-AR(con) 1 TM 25648.2.000 AN ORDINANCE OF THE CITY OF COPPELL, TEXAS ORDINANCE NO. ________ AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, AMENDING THE COMPREHENSIVE ZONING ORDINANCE AND MAP OF THE CITY OF COPPELL, TEXAS, AS HERETOFORE AMENDED, BY GRANTING A CHANGE IN ZONING FROM PD- 227-SF-12 (PLANNED DEVELOPMENT-227-SINGLE FAMILY-12) TO PD-227R-SF-12 (PLANNED DEVELOPMENT-227 REVISED- SINGLE FAMILY-12), TO ALLOW THE CONSTRUCTION OF FOUR SINGLE-FAMILY HOMES ON 1.961 ACRES OF PROPERTY LOCATED ALONG THE NORTH SIDE OF SANDY LAKE ROAD, APPROXIMATELY 150-FEET EAST OF SUMMER PLACE DRIVE, AND BEING MORE PARTICULARLY DESCRIBED IN EXHIBIT “A” ATTACHED HERETO AND INCORPORATED HEREIN; PROVIDING FOR THE APPROVAL OF THE ZONING EXHIBIT/SITE PLAN, LANDSCAPING PLAN/ TREE SURVEY, WALL DETAILS, AND LOT 4 CONCEPTUAL LAYOUT, ATTACHED HERETO AS EXHIBITS “B”, “C”, “D”, AND “E”; PROVIDING FOR SPECIAL CONDITIONS; PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING A PENALTY OF FINE NOT TO EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Planning and Zoning Commission and the governing body of the City of Coppell, Texas, in compliance with the laws of the State of Texas and pursuant to the Comprehensive Zoning Ordinance of the City of Coppell, have given requisite notices by publication and otherwise, and after holding due hearings and affording a full and fair hearing to all property owners generally, and to all persons interested and situated in the affected area and in the vicinity thereof, the said governing body is of the opinion that Zoning Application No. PD-227R-SF-12 should be approved, and in the exercise of legislative discretion have concluded that the Comprehensive Zoning Ordinance and Map should be amended. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS: SECTION 1. That the Comprehensive Zoning Ordinance and Map of the City of Coppell, Texas, duly passed by the governing body of the City of Coppell, Texas, as heretofore amended, be and the same is hereby amended by granting a change in zoning from PD-227-SF- 12 (Planned Development-227-Single Family-12) to PD-227R-SF-12 (Planned Development- 2 TM 25648.2.000 227 Revised-Single Family-12), for the property described in Exhibit “A” attached hereto and made a part hereof for all purposes. SECTION 2. That PD-227-SF-12, Ordinance 91500-A-468, is hereby rescinded; repealed and, replaced with PD-227R-SF-12 (Planned Development-227 Revised-Single Family-12), to allow the construction of four single-family homes on 1.961 acres of property is hereby approved subject to the following special conditions: A. Use regulations. A building or premise shall be used only for the following purposes: 1. Any use permitted in the "SF-ED" and the "SF-18" district, as provided in the Code of Ordinances. 2. Home occupation. B. Maximum height regulations. The maximum height regulations will be 35 feet nor more than two and one- half stories high, whichever is less. C. Area regulations. 1. Minimum size of yards: (A) Front yard setback shall be a minimum of 25’ from the fire lane and utility and access easement, with the exception of a portion of Lot 4, which will be 10 feet from the fire lane turn-around on the west side and 5 feet from the fire lane turn abound on the south side. (B) Side yard setback: Ten percent of the lot width, but in no case shall the side yard be less than eight feet. A side yard setback adjacent to a public street shall not be less than 15 feet. (C) Rear yard: minimum of 20 feet. 2. Minimum size of lot: (A) Lot area: 16,426 square feet. (B) Lot width: 110 feet. (C) Lot depth: 131 feet. 3 TM 25648.2.000 3. Minimum dwelling size: Four thousand (4,000) square feet, exclusive of garages, breezeways and porches. 4. Maximum lot coverage: Thirty five percent (35%) of the total lot area may be covered by the combined area of the main buildings and accessory buildings. D. Parking/Driveway regulations. 1. Two enclosed parking spaces shall be provided behind the front yard setback line. 2. Where lots are adjacent to an alley, the enclosed parking area (garage) will not be accessed off of the alley with the exception of Lot 4 which will be access from the north alley only. 3. Garages shall be side entry and garage doors shall not face the front of the lot. 4. Driveway access from Sandy Lake Road shall be limited to one driveway and shall be located in the platted access easement. The easement shall be paved with 24 feet of concrete minimum pavement thickness for street and delineated as a fire lane. E. Type of exterior construction. 1. At least eighty percent (80%) of the exterior walls of the first floor of all structures shall be of masonry construction exclusive of doors, windows, and the area above the top plate line. 2. Each story above the first floor of a straight wall structure shall be at least eighty percent (80%) masonry exclusive of doors, windows and the area above the top plate line. F. Tree Retribution. 1. A Tree Removal Permit shall be required prior to the removal of any trees. G. Homeowners Association 1. The homeowner’s association shall maintain the utility, access and fire lane easements. 2. Lot 1X is to be maintained by the Homeowners Association. 3. Homeowners Association shall be submitted and approved to the City in accordance with the Code of Ordinances. 4 TM 25648.2.000 H. Subdivision Regulation 1. Lots are not required to have public road frontage. 2. All lots shall front on a 24’ wide fire lane, utility and access easement. 3. Platted in accordance with the Subdivision Ordinance, except as amended herein. SECTION 3. That the property shall be developed and used in accordance with the SF- 12 (Single Family -12) development standards under the Coppell Zoning Ordinance, except as amended in the special conditions as indicated on the Zoning Exhibit/Site Plan, Landscaping Plan/ Tree Survey, Wall Details, and Lot 4 Conceptual Layout, attached hereto as Exhibits “B”, “C”, “D” and “E”; and made a part hereof for all purposes, are hereby approved. SECTION 4. That the above property shall be used only in the manner and for the purpose provided for by the Comprehensive Zoning Ordinance of the City of Coppell, as heretofore amended, and as amended herein. SECTION 5. That the development of the property herein shall be in accordance with building regulations, zoning ordinances, and any applicable ordinances except as may be specifically altered or amended herein. SECTION 6. That all provisions of the Ordinances of the City of Coppell, Texas, in conflict with the provisions of this ordinance be, and the same are hereby, repealed, and all other provisions not in conflict with the provisions of this ordinance shall remain in full force and effect. SECTION 7. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof other than the part so decided to be unconstitutional, illegal or invalid, and shall not affect the validity of the Comprehensive Zoning Ordinance as a whole. 5 TM 25648.2.000 SECTION 8. An offense committed before the effective date of this ordinance is governed by prior law and the provisions of the Comprehensive Zoning Ordinance, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 9. That any person, firm or corporation violating any of the provisions or terms of this ordinance shall be subject to the same penalty as provided for in the Comprehensive Zoning Ordinance of the City of Coppell, as heretofore amended, and upon conviction shall be punished by a fine not to exceed the sum of Two Thousand Dollars ($2,000.00) for each offense; and each and every day such violation shall continue shall be deemed to constitute a separate offense. SECTION 10. That this ordinance shall take effect immediately from and after its passage and the publication of its caption, as the law and charter in such cases provide. DULY PASSED by the City Council of the City of Coppell, Texas, this the _______ day of ___________________, 2008. APPROVED: _____________________________________ DOUGLAS N. STOVER, MAYOR ATTEST: _____________________________________ LIBBY BALL, CITY SECRETARY APPROVED AS TO FORM: _________________________________ ROBERT E. HAGER, CITY ATTORNEY (REH/cdb) [JDD reviewed only 03/21/06] WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ PLANNING March 11, 2008 9 ✔ PUBLIC HEARING Consider approval of the Arbor Manors, Replat, a replat to revise the previously approved subdivision to eliminate a 4,800-square-foot common area lot and to incorporate this area into an enlarged and reconfigured five lots, allowing the development of 73 single-family homes and 10 common area open spaces on approximately 25.15 acres of property located south of Sandy Lake Road and west of Denton Tap Road. The following P&Z condition remains outstanding: 1. Delineate a 58-foot front yard setback on lots 1-5, Block E. On February 21, 2008, the Planning Commission unanimously recommended approval of this replat (7-0), subject to the above-stated condition. Commissioners Frnka, Shute, Haas, Fox, Sangerhausen, Shipley and Kittrell voted in favor, none opposed. Staff recommends APPROVAL. @01 Arbor Manors RP 1-AR Page 1 of 3 ITEM # 4 CITY OF COPPELL PLANNING DEPARTMENT STAFF REPORT Arbor Manors, Replat P&Z HEARING DATE: February 21, 2008 C.C. HEARING DATE: March 11, 2008 STAFF REP.: Gary L. Sieb, Director of Planning LOCATION: South of Sandy Lake Road and west of Denton Tap Road SIZE OF AREA: 25.15 acres of property CURRENT ZONING: PD-214R2-SF-9 (Planned Development-214 Revised 2 Single-Family-9) REQUEST: A replat to revise the previously approved subdivision to eliminate a 4,800-square-foot common area lot and to incorporate this area into an enlarged and reconfigured five lots, allowing the development of 73 single-family homes and 10 common area open spaces. APPLICANT: Owner: Engineer: Priority Development Dowdy, Anderson D.Hale/J. Barrett M. Alexander, P.E. 1111N. Post Oak Road 5225 Village Creek Houston, TX. 77055 Suite 200 (713) 316-3120 Plano, TX. 75093 Fax: (713) 621-4053 (972) 931-0694 Fax: (972) 931-9538 Page 2 of 3 ITEM # 4 HISTORY: In 2006, a Planned Development request for 155 townhouses--later reduced to 122 units--was denied by the Planning Commission on this property and not appealed to Council. In April of 2007, a revised PD plan was submitted on the same parcel which included 73 single-family lots on 24 acres and commercial/retail uses on 5 acres. That request was approved by both the Planning Commission and City Council in mid 2007. A replat of the property to allow construction of the 73 homes was approved by Planning Commission in August of 2007 and by Council on September 11. In undergoing detailed platting analysis after Council approval, the applicant’s engineer found that by eliminating one common area and a one-way street, at least 25 trees labeled for removal could be saved. Caliper inch wise, the saved trees would total over 190 inches. The reason for this replat is to modify the earlier approved subdivision by removing one common area shown on the approved plat and slightly realigning one street, thereby preserving trees that would have been removed based upon the earlier plat approval. TRANSPORTATION: Denton Tap Road is a P6D, improved concrete, six-lane divided thoroughfare contained within a 110 foot right-of- way. Sandy Lake Road is an existing asphalt two-lane road eventually to be improved to a C4D, four-lane divided thoroughfare contained within a 110 foot right –of-way. SURROUNDING LAND USE & ZONING: North-strip center, Exxon gas station; PD-214R2-C; “R”, Retail South-single-family residences; PD-115 (SF-7); “C” Commercial East-commercial uses; “C” Commercial and PD-214R2-C West-commercial and single-family uses; “R” Retail, SF-12 COMPREHENSIVE PLAN: The Coppell Comprehensive Plan of 1996, as amended, shows the property as suitable for single- family uses. Page 3 of 3 ITEM # 4 DISCUSSION: This is a request to replat an earlier approved subdivision development that allowed 73 single family residences on 25 acres of land located behind the southwest corner of Sandy Lake and Denton Tap Roads. This replat retains the 73 lots, but by eliminating a one way pair of streets, and slightly realigning one side of that one way pair to be two- way, a number of trees initially shown to be removed can be retained. Based upon the exhibits presented with this application, it appears that 25 trees totaling 194 caliper inches of diameter will be saved if this replat is approved. Because the density remains unchanged, the single-family use has not been altered, the circulation plan is only slightly modified, and tree preservation is substantially increased, we can support this request. To insure the developer follows through with preserving these trees, we also recommend a 58 foot front yard setback be shown on all exhibits for Lots 1-5, Block E to encourage their preservation. The 58 foot dimension was determined by reviewing the applicant’s initial submittal for review in which the 58 foot dimension was first offered. RECOMMENDATION TO THE PLANNING AND ZONING COMMISSION: Staff recommends APPROVAL of this replat request with the following conditions: 1) Provide a tree inventory sheet stating number of caliper inches being saved by the application , the number of trees being removed with re-alignment of street (in caliper inches) 2) Delineate a 58 foot front yard setback on lots 1-5, Block E ALTERNATIVES: 1) Recommend approval of the request 2) Recommend disapproval of the request 3) Recommend modification of the request ATTACHMENTS: 1) Replat document R:\Data\2005\05088\05088B\00\Correspondence\Memo's\05088B-Memo-Tree Preservation-2008-02-28.doc Date: 2/28/2008 To: City Council of Coppell c/o Gary Sieb – Planning Director CC: file; Weekley Homes; Priority Development From: Matthew Alexander Re: Arbor Manors - Building Line Revision Request Recently, after we had physically located the proposed streets in relationship to existing trees and we determined that the trees which could be preserved by the proposed median and the trees being lost due to the additional roadway to create the proposed median were not equal in quality or size. Furthermore, we deduced that if we eliminated the divided roadway we could preserve more than 170 caliper inches of existing trees. Thus we revised our final plat and plans to eliminate the proposed median and additional roadway in order to preserve several large trees in the front yard of future lots. Since then, we have had additional conversations with David Weekley Homes and they have expressed their desire to increase the rear yard depth from 20 to approximately 30- feet. In order to accomplish this goal we need a 40’ front yard set-back instead of a 58- foot yard set-back; a 58-foot front yard set-back was the result of an original 25-foot front-yard set-back plus an additional 33-feet of set-back gained when the median/divided roadway was eliminated. At the planning director’s request, we assessed the impacts to the existing trees that can/could be preserved by grading, walls or tree wells, from a caliper inch perspective. In all we concluded that the existing trees lost between a 40-foot and 58-foot set-back totaled approximately 130 inches. We also determine that increasing the rear yard depth from a 20-foot to a 30-foot set-back would help preserve approximately 130-inches. Thus, we have concluded the following: 1) this request has essentially has no ill effect on the preservation of trees; 2)this request fulfills the builder desire for a larger rear yard; and 3) we can/could save approximately 170 additional inches of trees by eliminating the divided roadway/median. Therefore, we on behalf of our client respectfully request that the front set-back be reduced on the Final Plat from 58-feet to 40-feet and the rear-yard set-back be increased from 20-feet to 30-feet for Lots1-5, block E; these lots will face West Braewood Drive. Thank you. REVISED:DOWDEY, ANDERSON & ASSOCIATES, INC. February 26, 2008 REVISED:DOWDEY, ANDERSON & ASSOCIATES, INC. February 13, 2008“”“”“”“””“”“”“”“”“”“”“”“”“”“”“”“”“”“”“” REVISED:DOWDEY, ANDERSON & ASSOCIATES, INC. February 26, 2008 REVISED:DOWDEY, ANDERSON & ASSOCIATES, INC. February 13, 2008“”“”“”“””“”“”“”“”“”“”“”“”“”“”“”“”“”“”“” WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ PLANNING March 11, 2008 10 ✔ PUBLIC HEARING Consider approval of Case No. S-1245-TC, DeVine Cellars, a zoning change request from TC (Town Center) to S-1245-TC (Special Use Permit-1245-Town Center), to allow the operation of a 2,272-square-foot retail/convenience store and restaurant, located in the Town Center Addition, along the east side of Denton Tap Road north of Town Center Blvd. The following P&Z conditions remain outstanding: 1. The development shall be in accordance with the Site Plan, Floor Plan and Sign Elevations. 2. Hours of operation shall be limited to 10 a.m. to 10 p.m. Monday through Thursday, until 12 a.m. on Friday and Saturday, and between noon and 6 p.m. on Sunday. On February 21, 2008, the Planning Commission unanimously recommended approval of this zoning change (7-0), subject to the above-stated conditions. Commissioners Frnka, Shute, Haas, Fox, Sangerhausen, Shipley and Kittrell voted in favor, none opposed. Staff recommends APPROVAL. @02 S-1245-TC, Devine Cellars 1-AR ITEM # 5 Page 1 of 4 CITY OF COPPELL PLANNING DEPARTMENT STAFF REPORT Case No.: S-1245-TC, DeVine Cellars P&Z HEARING DATE: February 21, 2008 C.C. HEARING DATE: March 11, 2008 STAFF REP.: Matt Steer, City Planner LOCATION: Along the east side of Denton Tap Road north of Town Center Blvd SIZE OF AREA: 2,272-square-foot of lease space CURRENT ZONING: TC (Town Center) REQUEST: A zoning change request to S-1245-TC (Special Use Permit-1245- Town Center), to allow the operation of a 2,272-square-foot retail/convenience store and restaurant located in the Town Center Addition. APPLICANT: Jean J. Dahl c/o DeVine Cellars 120 S. Denton Tap, Suite 450C-PMB209 Coppell, TX 75019 (972) 745-4766 FAX: (972) 745-4766 HISTORY: This 14,000-square-foot retail center was completed in early 2005. The SUP for Carvel, a 1,500-square-foot ice cream parlor (Carvel), was approved in September 2004. Taco Del Mar received approval for their SUP for a 1,650-square-foot restaurant with ITEM # 5 Page 2 of 4 outside seating in October of 2004. These two lease spaces have since been vacated, and Tangerine Salon proposes to move from a few lease spaces away into the two combined spaces. Little Caesar’s Pizza was approved in May of 2006. Healthy-Me Marketplace received SUP approval for a 3,000-square-foot lease space in this center on September 12, 2006. The other retail tenants within the center did not require an SUP. Most recently, Tangerine Salon has been issued a demolition permit for their existing lease space. TRANSPORTATION: Denton Tap Road is a P6D, six-lane, divided thoroughfare built to standard. Town Center Boulevard, on the opposite side of the building, is built to standard. SURROUNDING LAND USE & ZONING: North – bank building; TC (Town Center) South – retail strip center; TC (Town Center) East – Coppell Justice Center; TC (Town Center) West – Huntington Ridge subdivision; PD-129-SF-9 (PD-129-Single Family-9) COMPREHENSIVE PLAN: The Coppell Comprehensive Plan, as amended, recommends neighborhood retail use on this parcel. DISCUSSION: According to the applicant, DeVine Cellars would like to introduce a new concept to the City of Coppell - a full service wine shop, tasting room, and tapas bar offering both on and off- premise consumption of red, white, sparkling, and dessert wines, as well as domestic and imported beers. The retail side of the shop will offer almost 600 different varieties of wine, as well as over 150 premium beers. They will also offer premium cigars and accessories; glassware, packaged cheese and chocolate; off- the-shelf and custom wine and cheese baskets; stemware, and wine-related services, such as custom cellars and cellar stocking and management. ITEM # 5 Page 3 of 4 This plan has gone through several iterations. Initially, the plan included a retail area, two tasting rooms and a WIFI Lounge. Then, as presented to staff at the Development Review Committee (DRC) Meeting, the request was modified to exclude the WIFI Lounge area and only have tastings on special occasions. Finally, as submitted for Planning and Zoning Commission consideration, the applicant reconfigured the proposal to include two parts - a 1,148-square-foot retail wine/beer shop with its only entrance from Denton Tap Road and a 1,095-square-foot restaurant/bar (tasting room/tapas bar) with its own entrance from Denton Tap Road and a secondary entrance on the Town Center Boulevard side. The restaurant component and separate entrances were included due to the TABC permitting requirements for the two uses (on-premise and off-premise consumption). Parking required for the retail use is one parking space per 200 square feet of floor area (six spaces required) and for the restaurant use, one parking space per 100 square feet (11 spaces required). The attached parking analysis demonstrates that there will be sufficient parking to provide for the proposed uses, and actually shows an excess in parking provided. The parking analysis will need to be revised to indicate that only six spaces are required for the retail portion of this business. DeVine Cellars will also apply for and obtain all of the necessary permits and licenses required by the TABC and City of Coppell for the legal sale of both on and off premise consumption of beer and wine. The hours of operation will be as follows: Monday thru Thursday - 10 am to 10 pm, Friday and Saturday - 10 am to 12 am, Sunday - 12 noon to 6 pm. The two signs will be designed to be in accordance with the sign regulations and will adhere to the standards of the shopping center. They will consist of white channel letters to match the same shade as those in the center and will be no more than 30 square feet on each façade, as the lease width is 30 linear feet and signage is allowed at a ratio of one square foot per lineal foot frontage. RECOMMENDATION TO THE PLANNING AND ZONING COMMISSION: Staff is recommending APPROVAL of Case No. S-1245-TC, for a retail/convenience store and restaurant, subject to the following conditions: ITEM # 5 Page 4 of 4 1) Ensure compliance with all TABC rules and regulations. Please contact Bob Wallace at 214-678-4014 for permitting/licensing requirements. 2) Revise sign plan to include exact dimensions, as the dimensions shown are too large and ensure the signage matches that of the center (color, type, materials, etc…). Please provide a color photo simulation of the sign on each elevation at time of permitting. 3) Revise Parking Analysis to reflect correct figures. 4) The development shall be in accordance with the Site Plan, Floor Plan and Revised Sign Elevations. 5) Hours of operation shall be limited to 10 a.m. to 10 p.m. Monday through Thursday, until 12 p.m. on Friday and Saturday, and between noon and 6 p.m. on Sunday. ALTERNATIVES: 1) Recommend approval of the request 2) Recommend disapproval of the request 3) Recommend modification of the request 4) Take under advisement for reconsideration at a later date. ATTACHMENTS: 1) Floor Plan 2) Site Plan 3) Parking Analysis 4) Elevations 5) Sign Plan WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ ȱ PLANNING March 11, 2008 11 ✔ PUBLIC HEARING Consider approval of Case No. PD-223R-C, Chase Bank (Kimbel Addition), a zoning change request from PD-223-C (Planned Development-223-Commercial) to PD-223R-C (Planned Development-223 Revised-Commercial) to attach a revised Detail Site Plan to allow the development of a 3,889-square-foot bank with three drive-thru lanes on 0.70 acres of property, located at the southeast corner of MacArthur Boulevard and Village Parkway. The following P&Z conditions remain outstanding: 1. Reinstate the awnings. 2. Indicate the locations for the proposed Purple Wintercreeper on the plan. (SEE ENGINEERING COMMENTS ON THE FOLLOWING PAGE) On February 21, 2008, the Planning Commission recommended approval of this zoning change (6-1), subject to the above-stated conditions and Engineering comments. Commissioners Frnka, Shute, Haas, Fox, Shipley and Kittrell voted in favor. Commissioner Sangerhausen was opposed. Staff recommends APPROVAL. @04 PD-223R-C, Chase Bank 1-AR AGENDA REQUEST NARRATIVE Engineering Comments: 1. If lime stabilization is not going to be used for the paving, a waiver request must be submitted by the engineer along with the geotechnical report and the thickness of concrete increased by 1". 2. The retaining wall is in conflict with the sanitary sewer on the east side of the project. The engineered retaining wall design will need to be submitted to Engineering Department during the plan review process. 3. It appears that a full set of construction plans was submitted with the DRC information. These plans should not be considered submission for engineering approval. Plans for review should not be submitted until approval from Planning and/or City Council is granted. ITEM # 7 PAGE 1 of 4 CITY OF COPPELL PLANNING DEPARTMENT STAFF REPORT Case No.: PD-223R-C, Chase Bank (Kimbel Addition) Revised P&Z HEARING DATE: January 17, 2008 (tabled), February 21, 2008 C.C. HEARING DATE: March 11, 2008 STAFF REP: Marcie Diamond, Assistant Director of Planning LOCATION: SEC of MacArthur Boulevard and Village Parkway SIZE OF AREA: 0.70 acres of property CURRENT ZONING: PD-223-C (Planned Development-223-Commercial) REQUEST: A zoning change request to PD-223R-C (Planned Development- 223 Revised-Commercial) to attach a Detail Site Plan to allow the development of a 3,889 square-foot bank with three drive-thru lanes. APPLICANT: Mathew Cragun O’Donnell Engineering 1601 E. Lamar Blvd, Suite 210 Arlington, Texas 76011 817.794.0202 FAX 817.548.8430 HISTORY: In November 1994, Council approved S-1085 allowing the expansion of Gloria’s Pizza, whose initial restaurant pre-dated the requirement for an SUP. This restaurant has since relocated to another retail center in Coppell, thus allowing for the partial demolition of this retail building. S-1114 for Papa John’s, which ITEM # 7 PAGE 2 of 4 abuts this proposed bank site to the south, was approved in December 1996. On May 22, 2007, City Council overruled the recommendations of the staff and Planning and Zoning Commission and approved Planned Development 223-Commercial to allow the construction of two retail/medical buildings, a bank, the retention of an existing take-out restaurant (S-1114-C, Papa John’s) and a portion of an existing retail structure, totaling 25,263 square feet, further permitting a reduction in landscaped areas, required setbacks, alternative signage colors, sizes and locations and other deviations from the requirements of the Zoning Ordinance, on 2.9 acres of property located at the northeast corner of Sandy Lake Road and MacArthur Boulevard. The subject tract is Lot 8R of this PD, a 0.7 acre parcel with an established site plan for a 4,200-square-foot bank with five drive- thru lanes. This approval allowed a reduction in both front and rear yard setbacks; parking spaces depth reduced to 16.5 feet, where 17 feet is the minimum, severe deficiencies in landscaping, and two monument signs. The drive-thru facilities were sited adjacent and parallel to MacArthur Boulevard. As recommended when this PD was being considered, drive-thru facilities should be sited so that visibility is obscured from Primary Image Zones (MacArthur Boulevard). However, the approval of this PD specifically included that the approval of the Detail Site Plan for this bank only needed to include the elevations and signage. TRANSPORTATION: MacArthur Boulevard is a P6D six-lane divided thoroughfare, which is built to standard in a 100 foot right-of-way. SURROUNDING LAND USE & ZONING: North – Lakeside Elementary School; “MF-2” (Multifamily-2) South– Papa John’s; “PD-223-C” (PD-Commercial) East – Vacant land; “C” (Commercial) West – Kroger; “C” (Commercial) COMPREHENSIVE PLAN: The Coppell Comprehensive Master Plan shows the property as suitable for Neighborhood Retail uses. DISCUSSION: This request was tabled at the January 17, 2008 Planning and Zoning Commission meeting. Since that time the site plan, landscape plan and ITEM # 7 PAGE 3 of 4 elevations have been significantly revised therefore warranting a new staff report. As detailed in the HISTORY section, this property was zoned a Planned Development district in the spring of last year which allowed significant variances to zoning regulations including setbacks, landscaping and signage. Per a condition of this PD, this Detail Plan approval was to be essentially limited to the approval of the elevations and signage. However, this detail plan differs from what was previously approved (and the plans reviewed for the previous P&Z Agenda) and therefore the details of the site plan warrant additional consideration. The building size has been reduced from 4,200 to 3,889 square feet, the drive-through lanes have been reduced from five to three and parking spaces have been increased from 25 to 29. With these revisions, the site plan is still non-compliant with the “C” District-Based zoning regulations, and the requirements of the Landscape Ordinance. As revised, this plan is now compliant with the setback provisions and landscaping requirements as established by the PD. However, there is still a drafting error on the Landscape Plan. The locations for the proposed Purple Wintercreeper are not shown on the plan, but is included in the plant table. Parking required for this use, per the zoning regulations, is 20 spaces. The previous plan was approved with 25 parking spaces. Four additional parking spaces have been added along the southern side of the building. The driveway serving these spaces is 18 feet in width, therefore it can only accommodate one-way traffic, and will need to be signed as such. Historically, drive-thru facilities have been oriented to not front on streets designated as Primary Image Zones. Recently, a similar issue arose on a proposed bank to be located at Denton Tap Road and SH 121. To address this adjacency issue, additional landscaping was added on two sides of the drive-through to obscure the view from the public right-of- way. However, the current site was “pre-approved” per PD-223-C, with a 6-foot wide perimeter landscape buffer, where normally 15 feet would be required. In accordance with the approved PD conditions, masonry proposed for the building is the same color and material as the CVS Drug Store being constructed at the northeast corner of MacArthur and Sandy Lake. Red brick with cast stone accents. The attached signage will be individually mounted, white channel letters with the Chase Bank logo. The final issue is awnings. The first several submissions indicated “chase blue” awnings on the windows fronting MacArthur and Village Parkway. While not “earth tone” as normally required, these were supported in ITEM # 7 PAGE 4 of 4 that they softened the appearance of this otherwise boxy building. The most recent revision eliminated these awnings. While not a code requirement, staff feels that they should be reinstated. RECOMMENDATION TO THE PLANNING AND ZONING COMMISSION: Staff is recommending APPROVAL of PD-223R-C, Chase Bank (Kimbel Addition) subject to the following conditions; 1. Consider reinstating the awnings 2. Indicate the locations for the proposed Purple Wintercreeper on the plan, Engineering Comments: 1. If lime stabilization is not going to be used for the paving, a waiver request must be submitted by the engineer along with the geotechnical report and the thickness of concrete increased by 1". 2. The retaining wall is in conflict with the sanitary sewer on the east side of the project. The engineered retaining wall design will need to be submitted to Engineering Department during the plan review process. 3. It appears that a full set of construction plans was submitted with the DRC information. These plans should not be considered submission for engineering approval. Plans for review should not be submitted until approval from Planning and/or City Council is granted. ALTERNATIVES: 1) Recommend approval of the request 2) Recommend disapproval of the request 3) Recommend modification of the request 4) Take under advisement for reconsideration at a later date. ATTACHMENTS: 1) Site Plan 2) Landscape Plan 3) Elevations WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ PLANNING March 11, 2008 12 ✔ PUBLIC HEARING Consider approval of Case No. S-1238R-C, Kegs N Cellar, a zoning change request from S-1238-C (Special Use Permit-1238-Commercial) to S-1238R-C (Special Use Permit-1238 Revised-Commercial) to allow an additional 23-square-foot attached sign on the west elevation in addition to the two existing attached signs for the 2,850-square-foot convenience/retail store located at 777 S. MacArthur Blvd., #413. There are no outstanding P&Z conditions. On February 21, 2008, the Planning Commission unanimously recommended approval of this zoning change (7-0), with no conditions. Commissioners Frnka, Shute, Haas, Fox, Sangerhausen, Shipley and Kittrell voted in favor, none opposed. Staff recommends APPROVAL. @05 S-1238R-C, Kegs N Cellar 1-AR ITEM # 8 Page 1 of 3 CITY OF COPPELL PLANNING DEPARTMENT STAFF REPORT Case No.: S-1238R-C, Kegs ‘N Cellar P&Z HEARING DATE: February 21, 2008 C.C. HEARING DATE: March 11, 2008 STAFF REP.: Marcie Diamond, Assistant Director of Planning LOCATION: 777 S. MacArthur Blvd., Suite 413 SIZE OF AREA: 2,850 square feet of lease space CURRENT ZONING: S-1238-C (Special Use Permit-1238-Commercial) REQUEST: A zoning change request to S-1238R-C (Special Use Permit-1238 Revised-Commercial) to allow an additional 23 square foot attached sign on the west elevation in addition to the two existing attached signs for the 2,850-square-foot convenience/retail store. APPLICANT: Gordon Pratt d.b.a. Kegs ‘N Cellar 777 S. MacArthur #413 Coppell, Texas 75019 972-304-1199 FAX: 972-304-1197 HISTORY: Coppell Crossing, Phase IV, was constructed in 2001, and this portion of the building has never been occupied. The lease space abutting to the west was originally occupied by Tasty Donuts (S-1187) and is currently occupied by Pizza Inn (S-1187R), which recently relocated from Coppell Crossing, Phase V (behind Burger King). The remainder of the building is occupied by Pan Acean Restaurant (S-1188). On March 27, 2007 Council approved Case No. S-1238 for a convenience store (Kegs ‘N Cellar). ITEM # 8 Page 2 of 3 TRANSPORTATION: MacArthur Blvd. is a P6D, shown on the Thoroughfare Plan and built as a six-lane divided thoroughfare, in 110’ of right-of-way adjacent to this shopping center. SURROUNDING LAND USE & ZONING: North –shopping center; “C” (Commercial) South–DART R.O.W. and retail; “A” (Agriculture) and “PD-157-C”, (Planned Development–157-Commercial) East – shopping center; “R” (Retail) West –shopping center; “C” (Commercial) COMPREHENSIVE PLAN: The Coppell Comprehensive Master Plan shows the property as suitable for Regional Retail uses. DISCUSSION: This request is to add a third attached sign, which was not approved with the original SUP. The allowance of this sign is based on an interpretation of the building official of the following regulation; “(B) Effective area: Attached signs shall not exceed the following: … ii. For buildings and leaseholds with multiple facades, facing a dedicated street, or where street frontage does not exist….a maximum aggregate effective area on any one facade equal to one square foot per lineal foot of facade width and a maximum total aggregate effective area of two-square feet per lineal foot of building or tenant frontage on a dedicated street, as applicable, or 300 square feet, whichever is less. Based on the determination that Kegs ‘N Cellar has two entry doors (one on each side of the building), this use is entitled to “total aggregate effective area of two-square feet per lineal foot… ” . This use has 46’ 5” frontage on MacArthur, and the same frontage on the north elevation of the building, therefore at total of 92.4 square feet of signage would be available. Existing are two 23 square foot signs, and this request is to add a 3rd 23 square foot sign, bringing the total signage to 69 square foot sign, which is compliant with this interpretation of the Sign Ordinance. Approximately one year ago the Special Use Permit for this business was approved by City Council. At that time the only issue was the proposed signage/business name. While the color, size and location on the lease space was compliant with the provisions of the Zoning Ordinance, the applicant desired to include “Beer and Wine” under “Kegs ‘N Cellar”. The Building Official interpreted that this sign is not compliant with City policy, which applies the ITEM # 8 Page 3 of 3 following Zoning Ordinance requirement to all businesses that sell alcoholic beverages for either on- or off-premise consumption: “12-30-16.3. Signs. Exterior signs, other than established trade names, located on the outside of the building or premises of a restaurant, shall not advertise or refer to the sale or consumption of alcoholic beverages by words or symbols.” To reiterate this requirement, also on this agenda is a proposed text amendment which specifically prohibits signs referring to the sale or consumption of alcoholic beverages on all establishments. RECOMMENDATION TO THE PLANNING AND ZONING COMMISSION: Staff is recommending APPROVAL of Case No. S-1238R, to allow one additional 23 square foot attached sign to be affixed to the west elevation. There are no outstanding conditions. ALTERNATIVES: 1) Recommend approval of the request 2) Recommend disapproval of the request 3) Recommend modification of the request 4) Take under advisement for reconsideration at a later date. ATTACHMENTS: 1) Building Elevations with proposed and existing signage. WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ PLANNING March 11, 2008 13 ✔ PUBLIC HEARING Consider approval of two text amendments to the Coppell Zoning Ordinance; Sec. 12-29-3.3 adding “(P) Signs which advertise or refer to the sale or consumption of alcoholic beverages by words or symbols” to types of signs are specifically prohibited, and Sec. 12-29-4.3(A)i, requiring individually mounted letters in the industrial districts. On February 21, 2008, the Planning Commission recommended approval of two text amendments to the Coppell Zoning Ordinance; Sec. 12-29-3.3 and Sec. 12-29-4.3(A)i (6-1). Commissioners Frnka, Shute, Haas, Fox, Sangerhausen and Kittrell voted in favor. Commissioner Shipley was opposed. Staff recommends APPROVAL. @06 Text Amend, Sec.12-29-3&4 1-AR ITEM # 9 Page 1 of 3 CITY OF COPPELL PLANNING DEPARTMENT STAFF REPORT Text Amendments to Sections 12-29-3.3 and Sec. 12-29-4.3(A)i. P&Z HEARING DATE: February 21, 2008 C.C. HEARING DATE: March 11, 2008 STAFF REP.: Marcie Diamond, Assistant Director of Planning PURPOSE: Consider approval of text two amendments to the Coppell Zoning Ordinance; Sec. 12-29-3.3, adding “(P) Signs which advertise or refer to the sale or consumption of alcoholic beverages by words or symbols” to types of signs are specifically prohibited, and Sec. 12-29-4.3 (A)i, requiring individually mounted letters on attached signs in the industrial districts. HISTORY: In December 2006 Council approved various amendments to the Zoning Ordinance in anticipation of the local election allowing the sale of beer and wine for on and off-premise consumption. These amendments included revisions to the Sign Ordinance including the prohibition of luminous gaseous tubing (neon) visible from a window (except open signs) and various revisions to the Special Use Permit requirements for restaurants and convenience and retail stores. DISCUSSION: As briefly discussed in the rezoning request for Kegs ‘N Cellar, the Building Official previously interpreted that the regulation prohibiting signs which advertise or refer to the sale or consumption of alcoholic beverages by words or symbols, as found under the provisions for SUP for restaurants, was applicable to all businesses that sell alcoholic beverages for either on- or off-premise consumption. To assure that this provision is implemented in all zoning districts, the following section is recommended to be added to ITEM # 9 Page 2 of 3 under Provisions for All Zoning Districts:, Prohibited Signs: 3. “12-29-16.3. (P) Signs which advertise or refer to the sale or consumption of alcoholic beverages by words or symbols. The second proposed text amendment could also be considered a clarification of an existing requirement and policy of the city. Whereas also under Prohibited Signs, subsection (N) excludes “Can signs made of plastic or similar translucent materials” from being a permitted type of attached sign. There appeared to be a conflict within the Sign Ordinance where Section 12-29-4.3.(A)i. in part states “….Attached signs in areas zoned Light Industrial are exempt from the color and logo size restrictions and the requirement for individually-mounted letters” (emphases added). This provision allowed a sign in the Industrial District which appears to be a can sign for 4 WHEEL PARTS, on Sandy Lake Road. Where it is reasonable to allow additional flexibility in the size and color of signs in the industrial districts where the large tilt wall concrete buildings are generally unadorned and there is less signage on any given facade, compared to retail and office areas, it is still important to regulate the aesthetic qualities of the signage. Therefore, the following revision is proposed to clarify this regulation: Sec. 12-29-4. Provisions for business zoning districts. 3. (A) Attached signs, i. Attached signs shall consist of individually-mounted channel letters ……in white, ivory, black or neutral colors…. Logos in any color shall be permitted, but shall not exceed 20 percent of the area of the sign. Attached signs in areas zoned Light Industrial are exempt from the color and logo size restrictions (DELETE) and the requirement for individually-mounted letters ITEM # 9 Page 3 of 3 RECOMMENDATION TO THE PLANNING AND ZONING COMMISSION: Staff is recommending APPROVAL of the amendments to Sec. 12-29- 3(P), and Sec. 12-29-4.3 (A)i. of the Code of Ordinances as specified herein. ALTERNATIVES: 1) Recommend approval of the request 2) Recommend disapproval of the request 3) Recommend modification of the request 4) Take under advisement for reconsideration at a later date. WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ PLANNING March 11, 2008 14 ✔ PUBLIC HEARING Consider approval of an application by Chesapeake Energy to allow drilling and production from a horizontal well on property located north of Bethel Road, west of the proposed extension of Creekview Drive, on the Fellowship Church Property. On January 22, 2008 staff received an application to drill and operate a gas well north of Bethel Road, west of the proposed extension of Creekview Drive on the Fellowship Church property. Per Section 9-26-7 of the Oil and Gas Drilling Ordinance, if the well is within 800 feet of any occupied building (not used in operation of the drilling site) a public hearing is required. Staff recommends APPROVAL of this permit, subject to the revisions outlined in the attached memo. @07Drilling Application 1-AR Page 1 of 4 DATE: March 11, 2008 TO: Mayor and City Council FROM: Marcie Diamond, Assistant Director of Planning RE: Application by Chesapeake Energy to drill a gas well north of Bethel Road, west of the proposed extension of Creekview Drive. History ¾ On January 9, 2007 Council approved Ordinance No. 2007-1150 providing regulations relating to Oil and Gas Production in the City of Coppell. ¾ On August 14, 2007 Council authorized the hiring of Larry O. Hulsey & Co. to act in the city’s behalf as the Oil or Gas Inspector/Technical Advisor. ¾ On January 22, 2008 staff received an application by Chesapeake Energy to drill and operate a gas well. Current Application Chesapeake Energy submitted an application to drill and operate a gas well on a 2.152 acre tract of land located north of Bethel Road, west of the proposed extension of Creekview Drive. The mineral lease area encompasses the 137 acre Fellowship Church property. Public Hearing By Ordinance, if the well is within 800 feet of any occupied building (not used in operation of the drilling site) a public hearing is required. The notification of this hearing has been provided through; a sign placed on the property, notices in the Advocate two consecutive Fridays, and written notices sent to all property owners within 800 feet of the proposed well. There is one existing structure within the notification area, 611 Royal Lane, owned by Duke which is 693 feet from the proposed wellhead. There are two buildings under construction in the Bethel Road Business Park, with the western most building will be approximately 750 feet from the proposed well head. Review Comments On February 26, 2008 staff received a letter from Larry O. Hulsey (attached), stating compliance with state and city requirements (allowing the proposed gas well. In addition to Mr. Hulsey’s review of the technical aspects of the application, various city departments also reviewed the application to insure compliance Page 2 of 4 with other ordinances of the city of Coppell (i.e. fire code, subdivision ordinance, tree preservation, etc.) specifically: Planning – General review and administration (notices, signs, etc.), site and landscape plan review, department and consultant coordination. o See outstanding conditions - Production Phase Site Plan Engineering – Road Maintenance Agreement, Transportation Routes, Grading, Drainage, Storm Water Pollution Prevention Plan, Utilities, R.O.W Use Agreements, if applicable, etc. o See outstanding conditions – SWPP, Location of Pipeline, Grading Fire Administration/Prevention – Hazardous Materials Management Plan, Emergency Routes, etc. o No outstanding conditions Parks and Recreation – Tree Survey and Mitigation o see outstanding conditions - Tree Mitigation Human Resources - Insurance and Security o no outstanding conditions Outstanding Issues: Production Phase Site Plan Staff understands that the site preparation and drilling phases will have a significant impact on the surrounding land uses in terms of traffic, noise and lights, but, are temporary in nature. However, the more permanent land uses are the facilities and equipment utilized in the long-term production phase. Staff has requested specific information as to what will remain on the property, including a detailed site plan (location) and elevations (heights, colors, etc.) of all equipment/facilities. The applicant has submitted several exhibits and pictures, but they are inconsistent and do not provide an overall picture of what will remain of the property. Storm Water Pollution Prevention (SWPP) Prior to issuance of a tree removal permit or a grading permit for this property, Construction Site Notice would be required to be submitted to the city, and to be posted on the property. Pipeline The location of the proposed pipeline was submitted as an exhibit as part of a presentation to council on February 26th. A pipeline will not be permitted within the R.O.W. for Bethel Road or Creekview Drive, however, 90 degree crossings would be permitted. Grading and Erosion Control Plans There are inconsistencies with location of the well pad site in the grading and erosion control plan and other drawings submitted. It appears that grading would be required for land which is in the City of Grapevine. Verify dimensions, and location relative to the city limit line. Page 3 of 4 Tree Mitigation The pad site area is currently heavily wooded, containing 122 mature Cedar Elm Trees (up to 21 caliper inch in size). Per Sec.9-26-6.C. of the Oil and Gas Ordinance: “(27) If any existing trees, six inch caliper or greater are to be removed and/or disturbed, then a tree mitigation plan and tree removal permit must be obtained in accordance with section 12-34-2, as amended, of the Coppell Code of Ordinances.” John Elias, Park Operations Manger/City Arborist, reviewed the Tree Survey(Exhibit J) for the Fellowship 6H Well site submitted by Lenny Hughes with Halff & Associates. Chesapeake is requesting a 100% exemption from this provision of the ordinance. They based their request on the exemption afforded building footprints in the Light Industrial Districts. This provision was added in 2004 as an economic development tool, which specifically pertains to trees located inside the building foot print. Given that there are not any buildings in this project, and an economic incentive is not appropriate, staff recommends that project not be exempted from Tree Mitigation. The tree mitigation calculations, as originally analyzed by John Elias, were based on preserving trees (Cedar Elms) outside of the drill pad/production site area. This preservation, plus the proposed planting of evergreen trees, would help to obscure the view of the facility from adjacent properties and rights-of-way. Staff suggested that preserving additional trees along the southern property line should be pursued. This could potentially lower the mitigation costs as well as provide a better buffer from Bethel Road. A 30 foot wide landscape/tree preservation buffer easement abutting the perimeter of the Drill Pad Site area was recommended to be included on the Pad Site Layout Production and Drilling Phase Layout Exhibits. Chesapeake has responded that they only have permission from the surface owner (Fellowship Church) to use the limits of the pad site, and the 30’ landscape/tree preservation buffer “is not possible because it is not their land to use”. Therefore, the trees outside of the pad site cannot be used for preservation credit, if they have no vehicle to insure their preservation. This statement also calls into question if the surface owner will permit the planting of the 33 evergreen trees outside of the pad site as indicated on the plans. If no planting or preservation activity may occur outside of the pad site then the Tree Mitigation Calculations would be as follows: Total Trees on Site (DBH) 1539" Total Trees Removed (DBH) 1539” Total Trees Preserved (DBH) 0" Preservation Percentage 0” Landscape Credit 0” 1539"(trees removed) x $100 = $153,900 However, if the trees can be planted and preserved as originally envisioned, then the fees would be reduced to $82,750 and the city will be assured a visually appealing landscape buffer around this use. In the event that the trees can neither be provided or preserved, staff is recommending that the proposed 8’ Page 4 of 4 black chain link fence be revised to be a 8’ solid masonry screening wall along all four property lines, with appropriate gates and security. Staff is recommending APPROVAL, subject to: 1. Production Phase Site Plan being revised to include site plan (location) and elevations (heights, colors, etc.) of all equipment/facilities. 2. Construction Site Notice will be required to be submitted to the city, and be posted on the property prior to issuance of a tree removal permit or a grading permit for this property. 3. Revise pipeline route to not be within the R.O.W. for Bethel Road or Creekview Drive (90 degree crossings would be permitted). 4. Rectify the inconsistencies with location of the well pad site in the grading and erosion control plan and other drawings submitted. 5. Tree removal permit is required prior to the removal of any trees. A fee in the amount of $153,900 will be due to the City of Coppell Reforestation and Natural Areas fund at the time the tree removal permit is pulled. However, if the trees can be planted and preserved as originally envisioned, then the fees would be reduced to $82,750 and the city would be assured a visually appealing landscape buffer around this use. In the event that the trees can neither be provided or preserved, staff recommends that the proposed 8’ black chain link fence be revised to be a 8’ solid masonry screening wall along all four property lines, with appropriate gates and security. Attachments: Location Map Production Phase Site Plan Tree Survey/Mitigation Plan Letter from Larry O. Hulsey Complete Application package (76 pages) Bethel RoadCreekview Royal Lane City Limit LineFellowship Church LOCATION MAP WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: Parks and Recreation March 11, 2008 15 ✔ CONTRACT/BID or PROPOSAL Consider approval of Bid Number Q-1207-02, and resulting contract, from Meridian Commercial, L.P., in the amount of $4,506,000.00, for construction of the Coppell Community/Senior Center, and authorizing the City Manager to sign. Approval of this item will allow for the execution of a contract with Meridian Commercial, L.P., for construction of the Coppell Community/Senior Center. Meridian submitted the lowest, most responsible bid and is recommended for award of this contract. See Financial Comments on the Change Order agenda item. Staff recommends approval. ^Senior Ctr-1AR PARKS AND RECREATION DEPARTMENT CITY COUNCIL AGENDA ITEM Date: March 11, 2008 To: Mayor and City Council From: Brad Reid, Director of Parks and Recreation Re: Consider approval of a Bid from Meridian Commercial L.P., in the amount of $4,506,000.00, for construction of the Coppell Community/Senior Center, and authorizing the City Manager to sign. Background: Bids were opened on December 14, 2007 for the construction of the Grapevine Springs Community Center. Bids were received from four contractors ranging from a high base bid of $5,343,000.00 (Azteca Enterprises, Inc.), to a low base bid of $4,506,000.00 (Meridian Commercial). Because the low bid came in above the budgeted amount, the city, Proforma Architecture and Meridian Commercial entered into Value Engineering discussions to determine acceptable redesign and changes resulting in reductions to the cost of the facility. These discussions were fruitful and identified $391,801.00 in reductions to the project, without significant reductions to the quality of the building. These changes were endorsed by the City Council at a Work Session held on February 12, 2008. The contract under consideration includes the complete base contract amount of $4,506,000.00. A request for approval of Change Order Number One will follow on the agenda, to accept the proposed Value Engineered items, reducing the total contract to $4,114,199.00 Included in the Scope of Work is a new entry drive and parking lot entering the site west of Grapevine Springs Park, a 13,500 s.f. Community/Senior Center Building, an attached park restroom, trails, landscaping and wall repairs at Grapevine Springs Park. This project will be submitted for LEED commissioning for sustainable design and construction. If this contract is approved tonight, construction should begin as early as the first week in April, with estimated completion in April 2009. City Council Action requested: Approval of a Bid from Meridian Commercial L.P., in the amount of $4,506,000.00, for construction of the Grapevine Springs Community/Senior Center, including park restroom and wall repairs, and authorizing the City Manager to sign. Meridian Commercial, L.P.J.C. Commercial, Inc.Alshall Construction Co.Azteca Enterprises, Inc.Base Bid 4,506,000.004,777,777.00 4,799,786.00 5,343,000.00Add Alt. #1 14,380.0026,000.00 16,000.00 18,000.00Add Alt. #221,660.004,000.006,800.00 7,500.00Add Alt. #315,000.007,500.0020,500.00 22,160.00Add Alt. #418,880.00 40,000.00 27,660.0013,000.00Add Alt. #511,200.004,000.0010,300.00 12,000.00Add Alt. #648,110.00 32,005.0031,966.0033,400.00Calendar Days360 385 365 330Senior Recreation/Community CenterBid Q-1207-02Bid TabulationDecember 4, 2007- 10:00 a.m. WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: Parks and Recreation March 11, 2008 16 ✔ CONTRACT/BID or PROPOSAL Consider approval of a Change to the award amount of the Meridian Commercial, L.P. contract for construction of the Coppell Community/Senior Center, reducing the award amount by $391,801.00, bringing the total contract to $4,114,199.00, and authorizing the City Manager to sign the resulting Change Order. This Change Order is the result of negotiations with Meridian Commercial to value engineer the Community/Senior Center to bring more in line with the allocated budget. Funds are available in the Parks and Recreation CIP account, plus $250,000 in Designated General Fund Fund Balance for this contract. Staff recommends approval. ^Senior Ctr C.O.#1-1AR WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ ȱ Engineering March 11, 2008 17 ✔ CONTRACT/BID or PROPOSAL Consider approval of a Change Order to close Bethel Road from Freeport Parkway east to the east property line of the Hard Eight Restaurant and Bethel Road from Freeport Parkway west approximately 1,800 feet for specific reconstruction activities; providing for liquidated damages and an early completion incentive; and authorizing the City Manager to sign. Approval of this Change Order to close portions of Bethel Road will allow for the safe and expeditious construction of various sections of Bethel Road. Staff will be available to answer questions at the meeting. Staff recommends approval of a Change Order to close portions Bethel Road. #Bethel Rd Closure "CITY OF COPPELL ENGINEERING - EXCELLENCE BY DESIGN" MEMORANDUM FROM THE DEPARTMENT OF ENGINEERING To: Mayor and City Council From: Kenneth M. Griffin, P.E., Director of Engineering/Public Works Date: March 11, 2008 RE: Consider approval of a Change Order to close Bethel Road from Freeport Parkway east to the east property line of the Hard Eight Restaurant and Bethel Road from Freeport Parkway west approximately 1,800 feet for specific reconstruction activities; providing for liquidated damages and an early completion incentive; and authorizing the City Manager to sign. The Bethel Road Project has been under construction since February 2007. While the contractor has made steady progress, recently an issue has arisen which caused the contractor to approach the City about the possibility of closing a portion of Bethel Road for a period of time. The real problem takes place at the intersection of Freeport Parkway and Bethel Road. There is approximately a 2-3 foot grade difference from the old existing pavement to the proposed new paving. To maintain traffic through this section will be difficult when you create transition from the old paving down to the new paving. At one time there had been discussions with the contractor about the possibility of closing the entire intersection for a weekend so it could be cut down and overlaid with a temporary material for the transitions along Freeport from south of Bethel to north of Bethel. However, that would only accomplish a safer transition through the intersection itself. It would not allow for the complete construction of the portion of Bethel Road east of Freeport. After several meetings and discussions among my staff and the contractor, it was determined that the safest, most expedient way to construct the section of Bethel east of Freeport Parkway would be to close that section down in its entirety. This closure would accomplish the following tasks: allow adequate time for the east half of the Freeport / E. Bethel intersection to be cut down, removal of all the old paving along Bethel Rd back to the east, preparation of the subgrade and placement of the new concrete. Once the concrete has cured, the intersection could then be opened to two-way traffic. In order to accomplish this, the contractor has requested the road be closed for 35 calendar days. In looking at the amount of work to be performed and discussing the time associated with each facet of the work, it seems the contractor would need between 25-28 working days to accomplish this portion of the project. If the section of Bethel Road east of Freeport Parkway is approved to be closed for the proposed construction, it then provides an opportunity to expedite another portion of the project. This is the portion immediately west of the Freeport / Bethel intersection for approximately 1,800 linear feet. "CITY OF COPPELL ENGINEERING - EXCELLENCE BY DESIGN" Several exhibits are attached that more clearly represent the closures planned. Closing the section of Bethel Road west of Freeport would allow the contractor to safely excavate the existing paving down to the new grade and potentially pour some of the additional lanes in that section. However, the real goal in that section is to cut down the existing asphalt roadway to the proper grade. Obviously, closing either one or both of these sections of Bethel creates numerous problems and concerns. The first concern is access to the Hard Eight BBQ Restaurant. One item the contractor has been told is that, if he is allowed to close the portion of Bethel east of Freeport, he would need to secure a temporary driveway on the property east of the Hard Eight, so that there would still be access from Bethel Road. Also, additional signage would be required on northbound Freeport as you approach Bethel to show that access to the Hard Eight driveway is available from Freeport. That driveway off Freeport would be “entrance only” and traffic would be encouraged to exit back onto Bethel Road. This would eliminate conflicts taking place where the road transitions from two lanes each way to one lane each way on half of the roadway. The other concern with closing off the section of roadway west of Freeport was how trucks would reach the new industrial area at the northwest corner of Freeport and Bethel. Conversations have taken place with the owners of those properties and they are willing to bring their trucks in on Bethel from the west (Royal Lane and Bethel area). The employees would still come in from Freeport to access the site. Signage would be placed along Bethel that states “Truck Access to ULINE only, no thru traffic to Freeport Pkwy.” The owner of the property was concerned about traffic potentially cutting through his parking lot to access Freeport as a cut-through. The Engineering Department’s main concern with any type of road closure is this: will the positive impact of expediting a safer work environment outweigh the potential negative impact to the adjacent businesses? That is the main reason we would require the contractor to provide alternate access to the Hard Eight restaurant from Bethel Road and provide truck traffic a way to reach the new businesses at Freeport and Bethel. However, even if all those issues are worked out, what typically happens is, once the road is closed, you are at the mercy of the contractor. Numerous things can go wrong in the length of time that a road is closed. If this agenda item is approved, a Change Order would be issued to Tiseo Paving that would allow them to close the intersection from March 17 through April 18. This is 25 working days plus four weekends. The Change Order would stipulate that if Bethel Road is not re-opened to two-way traffic by April 21, then $1,000 per day would be assessed against Tiseo in liquidated damages. During the course of our discussions, it was noted that the Farmer’s Market would open on April 12th. Therefore the Change Order would also include an incentive to reward Tiseo Paving if they have two-way traffic restored to Bethel Road prior to April 12th. The incentive would be $500 per day for every day work is completed before April 18th plus a $3,500 bonus if it is complete prior to April 12th. As an example, if Tiseo actually completed the work on Friday, April 11, they would receive seven days early completion incentive plus a $3,500 bonus for a total of $7,000. ($500 per day for seven days early completion and a $3,500 bonus for completion prior to April 12.) It is always difficult recommending closure of main roadways for construction projects, however, the need for a safe traveling environment for the public often necessitates that roads be closed during construction. Staff recommends approval of this agenda item to issue a Change Order to close Bethel Road from Freeport Parkway east to the east property line of the Hard Eight Restaurant and Bethel Road from Freeport Parkway west approximately 1,800 feet. Staff further recommends that "CITY OF COPPELL ENGINEERING - EXCELLENCE BY DESIGN" the Change Order to the project allow for a $500 per day incentive for early completion prior to April 18, 2008 plus a $3,500 bonus for completion prior to April 12, 2008 and $1,000 per day liquidated damages for road closures beyond April 21, 2008. The Change Order will clearly state that the desired result of the road closure would be unimpeded two-way traffic on Bethel Road and Freeport Parkway by April 21, 2008. Staff will be available to answer any questions. 1 INCH = FT. 0 150 150 75 Bethel Road Closure at Freeport Parkway Project ST99-05 Created in LDDTS:\CAD\In_Design\MISC EXHIBITS\dwg\EXHIBITS.dwg\ST99-05 DETOUR 1 Created on: 04 March 2008 by Scott Latta ROAD CLOSED. NO ACCESS ROAD CLOSED TO THRU TRAFFIC. COMMERCIAL ACCESS ONLY. 1 INCH = FT. 0 150 150 75 Bethel Road Closure at ULINE Industries Project ST99-05 Created in LDDTS:\CAD\In_Design\MISC EXHIBITS\dwg\EXHIBITS.dwg\ST99-05 DETOUR 2 Created on: 04 March 2008 by Scott Latta ROAD CLOSED. NO ACCESS ROAD CLOSED TO THRU TRAFFIC. COMMERCIAL ACCESS ONLY. 1 INCH = FT. 0 500 500 250 Bethel Road Closure at Freeport Pkwy and Royal Ln Project ST99-05 Created in LDDTS:\CAD\In_Design\MISC EXHIBITS\dwg\EXHIBITS.dwg\ST99-05 DETOUR 3 Created on: 04 March 2008 by Scott Latta ROAD CLOSED. NO ACCESS ROAD CLOSED TO THRU TRAFFIC. COMMERCIAL ACCESS ONLY. 1 INCH = FT. 0 1000 1000 500 Bethel Road Closure Alternate Route Map Project ST99-05 Created in LDDTS:\CAD\In_Design\MISC EXHIBITS\dwg\EXHIBITS.dwg\ST99-05 DETOUR 4 Created on: 04 March 2008 by Scott Latta ROAD CLOSED. NO ACCESS ROAD CLOSED TO THRU TRAFFIC. COMMERCIAL ACCESS ONLY. ALTERNATE ROUTE WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ City Manager March 11, 2008 18 ✔ CONTRACT/BID or PROPOSAL Consider approval of a contract between the city of Coppell and Stewart Enterprises to build a funeral home at Rolling Oaks Cemetery, and authorizing the Mayor to sign. The lease will allow the construction of the private funeral on City leased land. P&Z recommended approval of the plans for the facility in October 2007, and the Mayor and Council approved the plans in November 2007. No City financial commitment. Revenue is $50,000/year or a revenue based fee on services rendered, whichever is greater. The first three years call for a revenue-based fee. Staff recommends approval. !Cemetery 25348 AGREEMENT OF LEASE between CITY OF COPPELL, TEXAS Landlord, and S. E. Funeral Home of Coppell, Texas, Inc. d/b/a/Restland funeral Home-Coppell Chapel Tenant. Dated: ________________________ Premises: A Specified Portion of Land at Rolling Oaks Cemetery Coppell, Texas TABLE OF CONTENTS Page ARTICLE 1 PREMISES 1 ARTICLE 2 TERM/RENT 2 ARTICLE 3 CONSTRUCTION OF THE BUILDING ON THE LAND 4 ARTICLE 4 CONDITION OF THE PREMISES 8 ARTICLE 5 TAXES/ASSESSMENTS 8 ARTICLE 6 NET LEASE 10 ARTICLE 7 USE AND OCCUPANCY 11 ARTICLE 8 REPAIRS 12 ARTICLE 9 REQUIREMENTS OF LAW 12 ARTICLE 10 INSURANCE, LOSS, REIMBURSEMENT, LIABILITY 13 ARTICLE 11 DAMAGE BY FIRE OR OTHER CAUSE 15 ARTICLE 12 QUIET ENJOYMENT 16 ARTICLE 13 UTILITIES 16 ARTICLE 14 LANDLORDS REPRESENTATIONS, WARRANTIES AND COVENANTS 16 ART1CLE 15 TENANT’S REPRESENTATIONS, WARRANTIES AND COVENANTS 18 ARTICLE 16 BROKERAGE 19 ARTICLE 17 PROHIBITIONS ON MORTGAGES; LIENS 20 ARTICLE I8 NOTICES 20 ARTICLE 19 EMINENT DOMAIN 21 ii Page ARTICLE 20 INDEMNITY 21 ARTICLE 21 ASSIGNMENT, SUBLETTING. ETC. 22 ARTICLE 22 EVENTS OF DEFAULT 24 ARTICLE 23 LANDLORD’S RIGHTS UPON TENANT’S DEFAULT 25 ARTICLE 24 MEMORANDUM OF LEASE 25 ARTICLE 25 IMPAIRMENT OF LANDLORD’S TITLE 26 ARTICLE 26 ESTOPPEL CERTIFICATE 26 ARTICLE 27 SIGNS 27 ARTICLE 28 ENVIRONMENTAL COMPLIANCE 27 ARTICLE 29 TERMINATION BY TENANT 28 ARTICLE 30 MUTUAL COOPERATION 29 ARTICLE 31 MISCELLANEOUS 29 EXHIBITS EXHIBIT A DESCRIPTION OF LAND EXHIBIT B SURVEY OF LAND EXHIBIT C FORM OF OFFICE SUBLEASE iii AGREEMENT OF LEASE THIS AGREEMENT OF LEASE (“Lease”) is made as of the ______ day of _______________, 20_____, between the CITY OF COPPELL, a Texas city having its principal office at 255 Parkway, Coppell, Texas 75019 (“Landlord”), and S. E. Funeral Home of Coppell, Texas, Inc., d/b/a Restland Funeral Home-Coppell Chapel, a Texas corporation (“Tenant”), having its principal office at 1333 South Clearview Parkway, Jefferson, Louisiana 70121. WITNESSETH: WHEREAS, Tenant has for many years owned and operated funeral homes and, as a result, possesses significant expertise and experience in providing at-need and pre-need funeral home services for residents of the State of Texas; and WHEREAS, Landlord is a city that owns and operates Rolling Oaks Cemetery at Coppell, Dallas County, State of Texas (the “Cemetery”); and WHEREAS, Landlord and Tenant believe that it would be in their best interests and in the best interests of the families and communities which they serve to combine their skills and abilities in a manner that, while maintaining their respective independent identities and operations, will provide more complete and convenient funeral home and cemetery services to their patrons. NOW, THEREFORE, the parties hereto, for themselves and their respective successors and permitted assigns, hereby covenant and agree as follows: ARTICLE I PREMISES Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the land described on Exhibit A annexed hereto and made a part hereof (the “Land’), the buildings, improvements and appurtenances of every kind and description now located or hereafter erected, constructed or placed on the Land (the “Building”), and the fixtures currently or hereafter located in or on or permanently attached to the Building (the Land and the Building and its fixtures are jointly hereinafter referred to as the “Premises”), for a term hereinafter stated, for the rents hereinafter reserved and upon and subject to the terms, covenants and conditions hereinafter provided. Each party hereby expressly covenants and agrees to observe and perform all of the conditions and covenants herein contained on its part to be observed and performed. -1- ARTICLE 2 TERM/RENT 2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, the Premises for the term (the “Term”) commencing on the date hereof (the “Commencement Date”) and ending at noon local time on December 31 of the year in which the thirtieth (30th) anniversary of the Rent Commencement Date (defined in Section 2.02) occurs (the “Expiration Date”), or until the Term shall sooner terminate as hereinafter provided. 2.02 Rent A. In consideration for the possession and use of the Land, Tenant will pay to Landlord, at such place as Landlord may from time to time specify by notice given to Tenant, without deduction or offset of any kind, an annual rental in an amount equal to the greater of (a) $50,000 (the “Fixed Rent”) or (b) six percent of Tenant’s annual Adjusted Gross Revenues, as defined in Section 2.06 (the “Revenue Rent”). The Fixed Rent will be payable, without notice or demand, in monthly installments of $4,166.66 on or before the first day of each month commencing on the the day Tenant obtains a funeral establishment license from the Texas Funeral Service Commission (the “License”) permitting Tenant to operate a fully-licensed funeral establishment and crematory on the Premises, (such day being the “Rent Commencement Date”). For any period less than a full calendar month, the monthly installment of Fixed Rent will be reduced proportionately. Notwithstanding the foregoing it is specifically agreed that during Lease years 1, 2 and 3 of the Lease, Tenant shall not be obligated to pay the Fixed Rent and the rental to be paid by Tenant hereunder during Lease years shall be limited to the Revenue Rent. It is further agreed that Tenant shall be entitled to an annual credit in the amount of $5,000 that is to be applied to the rental due hereunder with respect to any water and sewer charges that are incurred with respect to the Leased Premises (the “Water and Sewer Credit”). B. Any other charge for which Tenant may become liable under this agreement will be due and payable on demand as additional rent hereunder. C. Time is of the essence as to all required payments by Tenant under any provision of this Lease. If any monthly installment of rent is not received by the Landlord on or before the 10th day of the month for which said monthly rental installment is due, a service charge of $50.00 will become due and payable in addition to the monthly installment owed. The date that a check is dated or mailed is not relevant in determining Tenant's liability for a late fee; Landlord’s accounting records are the determining record of the date of receipt of a rent payment. The service charge is for the purpose of reimbursing Landlord for the extra costs and expenses incurred in connection with the handling and processing of late monthly rental. -2- D. If any installment of Fixed or Revenue Rent is not paid within 10 days of the date it is due, then the delinquent amount (not including the service charge) shall bear interest at the lesser of: (1) 12 per cent per annum, or (2) the maximum lawful contract rate. Such interest shall begin to accrue on the 1st of the month following the delinquency and continue until payment of the delinquent amount is made. E. If any check that is tendered to Landlord by Tenant for any charges due under this Lease is returned to Landlord by Tenant’s financial institution for any reason (including but not limited to absence of Tenant’s signature, insufficient funds, stop payment, or closed account) then, in addition to any other liability of Tenant for the amount of the check, Tenant shall be liable to Landlord for a service fee of $50.00 for each returned check. Landlord has no obligation to redeposit any check that is returned for any reason and Tenant shall immediately cure the non-payment that has resulted from the returned check. If Landlord receives two or more returned checks during the term of this Lease, then Landlord may require that all future payments from Tenant be made by cashier’s check. 2.03. On or before February 15 of each calendar year during the Term of this Lease, commencing with the calendar year in which the Rent Commencement Date occurs, Tenant shall pay to Landlord as additional rent an amount equal to the excess, if any, of the Revenue Rent over the Fixed Rent. 2.04. All sums other than Fixed Rent or Revenue Rent as shall become due and payable by Tenant to Landlord hereunder shall be deemed additional rent (“Additional Rent”), and shall be paid promptly by Tenant to Landlord as and when the same shall become due and payable, without demand therefor. 2.05. Tenant shall pay the Fixed Rent, Revenue Rent and Additional Rent in lawful money of the United States of America, by check of Tenant payable to Landlord or Landlord’s designee at the address designated by Landlord in writing to Tenant, without any offset, abatement or deduction whatsoever. 2.06. For purposes of this Lease, the term “Annual Adjusted Gross Revenues” shall mean, with respect to any calendar year or portion thereof, total gross revenues less sales taxes, discounts, cash advances, amounts received in connection with the sale of pre-need funeral services and merchandise and all amounts required by Texas law or regulation to be placed in trust generated in each such calendar year by Tenant’s operations on the Premises, as such amount is determined by Tenant from the books and records maintained by Tenant in the ordinary course of its business. A “Cash Advance” item is an item obtained for a consumer from a third party not under Tenant’s control and paid for by Tenant on such consumer’s behalf, which items may include but are not limited to cemetery or crematory services, pallbearers, public transportation, clergy honoraria, flowers, musicians or singers, nurses, obituary notices, -3- gratuities and death certificates. On or before January 31 of each calendar year during the Term, Tenant shall submit a statement to Landlord, satisfactory to Landlord in form and substance, certified as correct by a Certified Public Accountant, or at Landlord’s election, by Tenant’s chief financial officer, showing the amount of total gross revenues for the period January 1 through December 31 of the preceding calendar year, together with an itemization of all claimed deductions therefrom. Tenant shall provide Landlord with access to Tenant’s books and records, including bank statements, upon not less than three (3) days prior written notice by Landlord, for the purpose of verifying Tenant’s Annual Adjusted Gross Revenues. Landlord shall, and shall cause its officers, employees and authorized representatives to, treat in confidence any information received from Tenant in connection with the review of Tenant’s books and records. “Control” for purposes of this Section shall mean the ownership of fifty-one percent (51%) or more of the voting shares or interests of a given entity. 2.07. Promptly following the Rent Commencement Date, Landlord and Tenant shall enter into a recordable supplementary agreement confirming the Rent Commencement Date and the Expiration Date. 2.08. If the Rent Commencement Date occurs on a day other than the first day of a calendar month, the Fixed Rent for such calendar month shall be prorated. 2.09. Notwithstanding anything set forth in this Lease to the contrary, at Tenant’s option, all obligations of Tenant pursuant to this Lease shall terminate if Tenant is unable to obtain after its reasonable best efforts (but in no event later than eighteen [18] months following the Commencement Date) all consents and approvals of any governmental entity (including, without limitation, approval of the State of Texas, the County of Dallas, and the City of Coppell) necessary to the construction of the Building or the operation of Tenant’s business on the Premises, including obtaining the License, Landlord and Tenant, at Tenant’s sole cost and expense, shall take or cause to be taken any and all action reasonably required by either to obtain all such approvals. ARTICLE 3 CONSTRUCTION OF THE BUILDING ON THE LAND 3.01. Landlord hereby grants, consents to, and requires, and Tenant hereby agrees to, the erection, construction, placement, operation and maintenance of the Building on the Land by Tenant, at Tenant’s sole cost and expense; provided however, that expense of the entry gate and signage shall be split equally by the Landlord and Tenant. The cost of the Building shall be paid in cash or its equivalent so that the Premises shall at all times be free from liens, labor and materials supplied or claimed to have been supplied to the Premises. A survey depicting the Land shall be made, and when completed and approved by the parties, shall be annexed hereto as Exhibit B and made a part hereof. Landlord and Tenant agree that if Tenant does not commence -4- to construct or erect the Building on the Land, through no fault of Landlord, within two (2) years from the Commencement Date, Landlord shall have the right to terminate this Lease. IF THIS LEASE IS TERMINATED IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS SECTION 3.01, LANDLORD AND TENANT AGREE THAT THE DAMAGES THAT LANDLORD SHALL SUSTAIN AS A RESULT THEREOF SHALL BE DIFFICULT TO ASCERTAIN, AND THEREFORE LANDLORD AND TENANT FURTHER AGREE THAT TENANT SHALL BE OBLIGATED TO PAY TO LANDLORD, AND LANDLORD SHALL BE ENTITLED TO RECEIVE FROM TENANT, THE SUM OF FORTY THOUSAND AND 00/100s DOLLARS ($40,000.00) AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, FOLLOWING LANDLORD’S TERMINATION OF THIS LEASE UNDER THIS SECTION 3.01. ______________________________ ______________________________ LANDLORD’S INITIALS TENANT’S INITIALS Notwithstanding the foregoing, such liquidated damages shall not apply if Tenant cannot commence construction or erect the Building on the Land because of Tenant’s inability to obtain all needed approvals as set forth in Section 2.09. 3.02. Prior to the Commencement Date, at Tenant’s sole option and expense Tenant shall cause to be conducted, a Phase I environmental study regarding the Land upon which the funeral home is to be located (the “Study”). Tenant shall furnish to Landlord a complete copy of the Study. Tenant does hereby indemnify, defend and hold harmless Landlord from and against any and all claims, causes of action, losses, liabilities, damages, fines, penalties, costs and expenses, including without limitation, reasonable attorneys fees (“Claims”), arising or resulting from any act, omission or negligence of Tenant or its agents, employees, representatives or consultants in conducting the Study. 3.03. Upon receipt of Landlord’s approval of the Construction Documents, Tenant shall, at its sole cost and expense, diligently apply for and seek to obtain all necessary building and other governmental permits, licenses and approvals required (i) for the use, occupancy, operation and maintenance of the Building and the business to be conducted by Tenant therein (“Tenant’s Use Approval”), and (ii) for the construction and erection of the Building (“Tenant’s Construction Approval”), Tenant’s Construction Approval, together with Tenant’s Use Approval, being sometimes hereinafter referred to collectively as “Tenant’s Approvals”. Tenant shall have procured and paid for all permits and authorizations required from time to time by Legal Requirement (defined in section 9.01) and upon completion of Building, Tenant shall deliver to Landlord copies of such permits or authorizations, including a Certificate of Occupancy. -5- 3.04. As soon as practicable, but in no event later than six (6) months after Tenant’s Approvals have been obtained, subject to force majeure (defined in Section 3.08), Tenant shall, at its sole cost and expense, commence the construction of the Building and shall prosecute same diligently to completion. Tenant shall maintain a complete set of “as built” plans and specifications with respect to the Building and shall, when and as requested by Landlord, deliver a copy to Landlord. Tenant shall comply, in all material respects, with all laws, rules, orders, ordinances, regulations, statutes, requirements, codes and executive orders of any governmental agency, department, commission, board, bureau or instrumentality having jurisdiction over the Premises or any portion thereof. 3.05. Landlord and Tenant shall fully and timely cooperate with each other, and shall cause their respective officers, employees, agents and representatives to cooperate with each other, in obtaining Tenant’s Approvals and in performing their respective obligations and responsibilities under this Lease. Each party shall cause its officers, employees, agents, representatives, consultants, experts, contractors and sub-contractors to work in a professional, diligent and workmanlike manner with respect to such obligations and responsibilities. 3.06. “Force majeure” shall mean any and all causes beyond the reasonable control of Landlord or Tenant, as the case may be, including, without limitation, delays caused by governmental restrictions, regulations or controls (including, without limitation, energy and water conservation measures imposed by virtue of governmental laws, rules, regulations or orders), labor disputes, accidents, mechanical breakdown, shortages or inability to obtain labor, fuel, steam, water, electricity or materials, acts of God, enemy action, civil commotion, fire or other casualty or the process of settling insurance claims; but shall not include lack of funds or financial inability to perform. 3.07. Notwithstanding anything contained herein. Landlord shall at all times (including without limitation during and following the Term) be the owner of the Building. 3.08. All movable fixtures and partitions, telephone equipment, machinery and equipment relating to funeral home, crematory and chapel purposes, and all computer systems, furniture, furnishings, installations, decorations and other items of personal property (“Tenant’s Property”) purchased or leased by Tenant and installed by Tenant at its own cost and expense prior to and during the Term shall remain the property of Tenant, and upon the Expiration Date or earlier end of the Term, shall be removed from the Premises by Tenant. Tenant shall repair any damage to the Premises caused by the removal of Tenant’s Property. Failure by Tenant to remove any Tenant’s Property within thirty (30) days following the Expiration Date or earlier end of the Term shall be deemed an abandonment of such Tenant’s Property by Tenant. 3.09. After completion of construction of the Building during the Term, Tenant, at its sole cost and expense, shall have the right to make additions, alterations and changes (collectively the “Alterations”) in or to the Premises provided no Event of Default (defined in Article 22) shall have occurred hereunder, subject in all cases to the following: -6- (i) No Alterations greater than $25,000.00 shall be commenced until Tenant shall have obtained the prior written consent of Landlord which shall not be unreasonably withheld or delayed. Landlord shall respond to Tenant’s request for Landlord’s consent within ten (10) business days from Landlord’s receipt of such request. Each such request by Tenant shall include, in reasonable detail, a description of the nature of the proposed Alterations, the estimated cost and time schedule for making same, and Tenant’s evaluation of the impact such Alterations will have on the value of the Premises; (ii) No Alterations shall be undertaken until Tenant shall have procured and paid for all permits and authorizations required from time to time by Legal Requirements (defined in Section 9.01) and, upon completion of the Alterations, Tenant shall deliver to Landlord copies of any such permits or authorizations, including a certificate of occupancy or an amendment thereto, which affect the Alterations as completed; (iii) Any Alterations (a) involving in the aggregate an estimated cost of more than $50,000.00, or (b) which any governmental authority having jurisdiction requires to be certified or supervised by an architect or engineer, shall be conducted under the supervision of an architect or engineer selected by Tenant and approved in writing by Landlord, which approval shall not be unreasonably withheld or delayed, and no such Alterations shall be made except in accordance with detailed plans, specifications and cost estimates prepared and approved in writing by such architect or engineer and approved in writing by Landlord, which approval shall not be unreasonably withheld or delayed; (iv) Any Alterations shall be of a quality or class equal or superior to the original work of construction, shall be made promptly, subject to force majeure, in a good and workmanlike manner and in compliance with all Legal Requirements and all Insurance Requirements (defined in Section 9.01); (v) The cost of all Alterations shall be paid in cash or its equivalent so that the Premises shall at all times be free from liens for labor and materials supplied or claimed to have been supplied to the Premises; (vi) If the estimated cost of any Alterations shall be in excess of $50,000.00, Tenant, or Tenant’s contractor, at their sole cost and expense, as applicable, shall furnish to Landlord a surety company performance bond, issued by a company reasonably acceptable to Landlord, or other security satisfactory to Landlord, in an amount at least equal to the estimated cost of such Alterations guaranteeing the completion thereof within a reasonable time, subject to force majeure, free and clear of all encumbrances, chattel mortgages, conditional bills of sale and other charges, and in accordance with the plans and specifications approved by Landlord. In the event the estimated cost of any Alterations exceeds $50,000, Tenant shall reimburse Landlord for all reasonable expenses -7- (including attorneys’, architects’ and engineers’ fees and disbursements) incurred in connection with Landlord’s review of any Alterations proposed or made by Tenant; and (vii) Tenant shall maintain a complete set of “as built” plans and specifications with respect to all Alterations and shall, when and as requested by Landlord, deliver a copy thereof to Landlord. 3.10. Whether under the provisions of this Lease or otherwise, neither Tenant nor any agent, employee, representative, contractor or subcontractor of Tenant shall have any power or authority to do any act or thing or to make any contract or agreement which will bind Landlord, or which may create or be the foundation for any mechanic’s lien or other lien or claim upon or against the Premises or Landlord’s interest in the Premises, and Landlord shall have no responsibility to Tenant or to any contractor, subcontractor, supplier, materialman, workman or other person, firm or corporation who shall engage in or participate in any construction of the Building or any Alterations, unless Landlord shall expressly undertake such obligation by an agreement in writing signed by Landlord and made between Landlord and Tenant or such contractor, subcontractor, supplier, materialman, workman or other person, firm or corporation. 3.11. Landlord, at Tenant’s cost and expense and upon the request of Tenant, shall cooperate with Tenant and join in any application for any permits, approvals or certificates required to be obtained by Tenant in connection with the Building and not otherwise contemplated herein and in connection with any and all further Alterations performed by Tenant at the Premises during the Term in a manner consistent with all Legal Requirements. ARTICLE 4 CONDITION OF THE LAND Tenant has examined the Land and agrees to accept the same “as-is”, in the condition and state of repair existing as of the Commencement Date. Tenant shall, at Tenant’s sole cost and expense, perform all work necessary on the Land to prepare the same for Tenant’s use, occupancy and enjoyment, and Landlord shall have no obligation whatsoever to perform any work or make any installation on the Land of any nature whatsoever. ARTICLE 5 TAXES/ASSESSMENTS 5.01. From and after the Rent Commencement Date, Tenant shall pay all real estate taxes and assessments (ordinary and extraordinary, unforeseen as well as foreseen), and subject to the Water and Sewer Credit provided for hereinabove, sewer charges and water rents, and such other charges, and taxes, duties and charges, fees or payments imposed on the Premises by -8- any governmental, quasi-governmental, or public authority, utility or entity, any of which is imposed, assessed, levied or becomes due or payable or becomes a charge or lien upon or arises solely in connection with the ownership, use, occupancy or possession of the Premises, or any part thereof, or any improvement thereon, or any appurtenance thereto or the leasehold estate created hereby, during the Term (all of the foregoing being hereinafter sometimes collectively referred to as “Assessment” or “Assessments”). If the Premises are not billed separately and directly for Assessments by the appropriate taxing authorities, Landlord shall deliver a copy of any bill for Assessments to the Tenant, and Tenant shall pay such Assessments (i) directly to the appropriate taxing authority if all of the Assessments are Tenant’s obligation to pay, or (ii) to Landlord if Landlord is responsible for some portion of the Assessments, but in no event later than the last day before any fine, penalty, interest or cost may be added thereto for nonpayment. Tenant shall use its best efforts to cause all the Assessments for which Tenant is responsible to be billed separately and directly to Tenant, and Landlord shall cooperate towards that end. For all Assessments paid directly by Tenant, Tenant shall furnish to Landlord, within twenty (20) days after the date of payment, official receipts or photocopies thereof, evidencing that such Assessments have been paid. 5.02. If Tenant shall fail to comply with or perform its obligations under Section 5.01 hereof at any time during the Term, at Landlord’s option, Landlord may, at any time thereafter and in addition to any other rights or remedies Landlord may have hereunder, by written notice to Tenant, require Tenant thereafter to deposit with Landlord on the first (1st) day of each calendar month or portion thereof falling within the Term an amount equal to one-twelfth (1/12) of the annual Assessments, as estimated by Landlord, such amount to be held by Landlord without interest and to be applied against the payment of the Assessments as they become due. If on any payment date for Assessments the amount so deposited with Landlord shall be insufficient to pay the same in full, Tenant shall promptly deposit with Landlord sufficient funds to cover the deficiency. 5.03. Nothing herein contained shall require Tenant to pay at any time (i) municipal, state or federal income taxes assessed against Landlord, or (ii) municipal, state or federal capital levy, estate, succession, inheritance or transfer taxes of Landlord, or (iii) corporation franchise taxes imposed on Landlord. 5.04. Tenant may contest the validity or amount of any Assessment for which Tenant is responsible, in whole or in part, by an appropriate proceeding diligently conducted in good faith. Tenant shall only conduct such a contest after payment of the challenged Assessment unless Tenant shall (i) give Landlord prior written notice to the effect that the payment of such Assessment would, in the opinion of Tenant’s counsel, prejudice or render moot Tenant’s contest, and (ii) within fifteen (15) days after such Assessment shall have become due, have deposited with Landlord, as trustee, an amount sufficient to pay such contested Assessment, together with the interest and penalties thereon (as reasonably estimated by Landlord), which amount Landlord, as trustee, shall apply to the payment of such Assessment when the amount thereof shall be finally fixed and determined. Nothing herein contained shall be so construed as -9- to allow such Assessment to remain unpaid for such length of time as shall permit the Premises, or any part thereof, or the lien thereon created by such Assessment, to be sold by a governmental authority for the nonpayment of the same and, if at any time in the judgment of Landlord it shall become necessary or proper to do so, Landlord, after written notice to Tenant, may, in its capacity as trustee, apply the said monies so deposited, or as much thereof as may be required, in payment of the challenged Assessment to prevent the sale of the Premises or any part thereof. If the amount so deposited as aforesaid shall exceed the amount required to satisfy the challenged Assessment as finally fixed and determined, the excess (or the entire amount if no such payment is required) shall be paid to Tenant. If the amount so deposited is insufficient to satisfy the challenged Assessment as finally fixed and determined, the amount of such deficiency shall be forthwith paid by Tenant, including any interest, penalty or legal fees required by the assessing authority. 5.05. Tenant may, at its sole expense, endeavor at any time or from time to time, upon prior written notice to Landlord, to obtain a reduction of the assessed valuation on the Premises for the purpose of reducing Assessments thereon and, in such event, Landlord shall offer no objection and, at the request of Tenant, shall cooperate with Tenant, but without expense to Landlord, in effecting such a reduction. Tenant shall be authorized to collect any Assessment refund payable as a result of any proceeding Tenant may institute for that purpose and any such Assessment refund shall be the property of Tenant to the extent to which it is based on a payment made by Tenant, subject, however, to an apportionment between Landlord and Tenant with respect to any such Assessment paid in the year in which the Rent Commencement Date occurs and in which the Expiration Date occurs, after deducting from such refund the costs and expenses, including legal fees, incurred in connection with obtaining such refund. 5.06. Landlord shall not be required to join in any action or proceeding referred to in Section 5.04 or Section 5.05 unless required by law or any rule or regulation in order to make such action or proceeding effective, in which event any such action or proceeding may be taken by Tenant in the name of, but without expense to, Landlord. Tenant hereby agrees to indemnify and hold harmless Landlord from and against any and all Claims arising out of any such action or proceeding, including reasonable attorneys’ fees and costs. ARTICLE 6 NET LEASE It is the purpose and intent of Landlord and Tenant that, commencing on the Rent Commencement Date, the Fixed Rent, Revenue Rent and Additional Rent shall be absolutely net to Landlord, so that this Lease shall yield, net to Landlord, the Fixed Rent, Revenue Rent and Additional Rent specified in Article 2 hereof from and after the Rent Commencement Date, and that all costs, expenses and charges relating to the Premises which may arise from and after the Rent Commencement Date shall be paid by Tenant (except as may be otherwise specifically -10- provided in this Lease), and that Tenant shall indemnify and hold harmless Landlord from and against same. ARTICLE 7 USE AND OCCUPANCY 7.01. The Premises shall be used as a first class funeral home and chapel and for other related purposes, including without limitation, as a flower shop and for the sale of monuments, grave markers and other interment receptacles in accordance with all applicable laws, rules and regulations, and for any other purpose permitted under the laws of the State of Texas in connection with the operation of a funeral home and chapel and for no other purpose except as may first be consented to in writing by Landlord in its sole discretion. Landlord offers for sale burial rights, memorials and services in the Cemetery. Nothing herein shall limit the rights of Landlord or its agents from offering for sale such burial rights, memorials or services except as follows: (a) Tenant may provide, at the patron’s option, such commodities and services if said patron owns burial rights in a cemetery other than the Cemetery. (b) Tenant may provide, at the patron’s option, vaults or liners, to said patron where a death has occurred and the patron has not purchased such services previously or to patrons as a part of a pre-arranged funeral service contract. It is specifically agreed that Landlord shall not engage of the sale of vaults. 7.02. Tenant shall sublease to Landlord office space in the Building as shall be adequate for Landlord’s administration of the Cemetery on the terms and conditions as are set forth in the Office Sublease annexed hereto as Exhibit C and made a part hereof. 7.03. Tenant shall not use or occupy the Premises, or permit the same to be used or occupied, nor do or permit anything to be done in, on or to the Premises, in whole or in part, in a manner which would in any way (i) violate any construction permit or certificate of occupancy affecting the Premises for the use set forth in Section 7.01, (ii) make void or voidable any insurance in force with respect thereto, or which may make it impossible to obtain fire or other insurance required to be furnished by Tenant hereunder, (iii) cause or be apt to cause structural damage to the Building or any part thereof, (iv) constitute a public or private nuisance, or (v) violate any provision of this Lease. -11- ARTICLE 8 REPAIRS 8.01. Tenant shall take good care of the Premises, shall make all necessary structural repairs to the Building and shall keep in good order, condition and repair the foundations of the Building, the windows, doors, plate glass and signs, and shall at its sole cost and expense make all repairs required by any casualty or other event, interior and exterior, ordinary and extraordinary, foreseen and unforeseen, and Tenant shall be responsible for making any and all repairs to the roof and for painting the exterior and interior of the Building, and Tenant shall maintain and keep the Premises, including the access roads, streets, sidewalks and curbs adjacent to the Premises, in good order, repair and condition, and shall keep the same free and clear from litter, debris and graffiti, and shall not encumber or obstruct the same or allow the same to be encumbered or obstructed in any manner. For the purpose of this Lease, a structural repair shall be defined as any repair to the structural steel, footings, foundations, masonry walls or roof of the Building or of any other structure located on the Premises, including perimeter walls. 8.02. Tenant shall use its best efforts to operate the Premises as other comparable properties of like nature similarly situated are operated, and shall keep the Premises fully equipped and in good order and repair, it being understood that Tenant’s covenants herein with respect to the maintenance and operation of the Premises are of paramount importance to Landlord. Tenant shall not take, nor permit any occupant or other person to take, any action which would materially and adversely affect the operation of the Premises. Tenant covenants and agrees that throughout the term of this Lease (i) all exterior unpaved areas shall be attractively landscaped and maintained, (ii) all Building, operating equipment and Tenant’s Property shall be maintained in good operating order and repair, and (iii) the Premises shall at all times have adequate means of ingress and egress to public streets and to the sidewalks and service roadways used in connection therewith. For the purpose of this Lease, the standard of operation of the Premises shall be deemed to be that generally applicable to similar types of property similarly situated. Tenant shall indemnify and hold harmless Landlord from and against any and all Claims arising out of the failure of Tenant to perform the foregoing covenant or arising out of any accident, injury or damage to any person or property which shall or may happen in or upon the Premises or any part thereof, or upon the sidewalks and roads adjacent thereto, however caused, except for the intentional acts or gross negligence of Landlord or its agents. ARTICLE 9 REQUIREMENTS OF LAW 9.01. Tenant shall not use or occupy or permit the Premises to be used or occupied, nor do or permit anything to be done in, on or to the Premises, in whole or in part, in a manner which would in any way violate any and all present and future laws, rules, ordinances, statutes, requirements, codes, orders or regulations of federal, state, county, municipal or other -12- governmental authorities or bodies, or any direction of any public officer or officers (“Legal Requirements”); the requirements of any insurer insuring the Premises or Tenant or Tenant’s interest in the Premises (“Insurance Requirements’). 9.02. Tenant may in good faith, upon prior written approval from Landlord, which consent shall not be unreasonably withheld (and, wherever necessary, in the name of but without expense to Landlord), and after having secured Landlord against loss or damage by cash or by a surety bond in an amount, with a company and in form and substance reasonably satisfactory to Landlord, contest the validity of any Legal Requirements or Insurance Requirements and, pending the determination of such contest, Tenant may postpone compliance therewith, except that Tenant shall not postpone compliance therewith so as to subject Landlord to any fine or penalty or to prosecution for a crime or to cause the Premises or any part thereof to be condemned or foreclosed, to be vacated, to become uninsurable or to suffer any material interference with the purposes set forth in Article 7. Tenant shall indemnify and hold harmless Landlord from and against any and all Claims arising out of any breach of the foregoing obligations, including reasonable attorneys’ fees and costs. ARTICLE 10 INSURANCE, LOSS, REIMBURSEMENT, LIABILITY [please note that there may be further revisions to this section once the individual who handles insurance matters at Stewart has reviewed this draft of the lease] 10.01. During the term of this Lease, Tenant shall, at its sole cost and expense, keep and maintain policies of: (i) Insurance on the Building against loss or damage by fire and against loss or damage by other risks now embraced by the so-called all risk coverage endorsement, including flood and earthquake risks in an amount not less than one hundred percent (100%) of the then Full Insurable Value of the Building. The term “Full Insurable Value” shall mean actual replacement cost of the Building exclusive of the cost of non-insurable portions thereof such as excavations, foundations and footings, as evidenced by an appropriate replacement cost endorsement to the insurance policy. Landlord and Tenant shall be named as Loss Payees under such insurance as their respective interests may appear. (ii) General public liability insurance and automobile liability insurance protecting and indemnifying Tenant and Landlord on an occurrence basis from and against any and all claims for damages or injury to persons or property or for loss of life or of property caused in whole or in part by Tenant, its agents, employees, representatives and invitees (1) occurring upon, in, or about the Premises and the adjoining streets and sidewalks and/or (2) arising from the conduct of business in or management of the Premises or any work or thing whatsoever done or any condition created in or about the Premises during the Term, including before, during and after construction of the -13- Building, such insurance to afford immediate protection to the limit of not less than $3,000,000 combined single limit, with not more than $250,000 deductible. Landlord shall have the right, from time to time of reasonably requiring Tenant to increase the amount of such coverage. (iii) Workers’ compensation insurance for Tenant’s employees in full compliance with all requirements of the laws of the State of Texas: and (iv) Such other insurance on the Building or the Premises and in such amounts as may from time to time be reasonably required by Landlord against other insurable hazards which at the time are commonly insured against in the case of premises similarly situated. 10.02. All insurance provided for in Section 10.01 shall be effected under manuscript form policies issued by insurers holding a "General Policy Rating" of A-, VIII or better, as set forth in the most current issue of "Best Key Rating Guide". 10.03. Upon the execution and delivery of this Lease and thereafter prior to the expiration dates of the expiring policies theretofore furnished under this Article 10, Certificates of Insurance and all additional insured endorsements required by this Article 10, bearing notations evidencing the payment of premiums or accompanied by other evidence satisfactory to Landlord of such payment, shall be delivered by Tenant to Landlord. 10.04. Tenant shall cause to be included in the insurance policies procured pursuant to this Lease (i) a Waiver of the insurer’s right of subrogation against Landlord in the workers compensation policy, and (ii) an express agreement that such policy shall not be invalidated if the assured waives the right of recovery against any party responsible for a casualty covered by the policy before the occurrence of the casualty. If such waiver or agreement shall not be or shall cease to be obtainable, Tenant shall so notify Landlord promptly after learning thereof and the requirements of (i) and (ii) shall be eliminated. Each such policy, except the workers compensation policy, shall name Landlord as an additional insured and shall be endorsed to provide by the insurer that the policy shall not be cancelled or materially changed without at least thirty (30) days’ prior notice to all insureds, and that the act or omission of Tenant shall not invalidate the policy as to Landlord. To the extent permitted by law and applicable insurance policies, Tenant hereby releases Landlord with respect to any claim (including a claim for negligence) which it might otherwise have against Landlord for loss, damage or destruction to the extent to which Tenant is required to be insured under a policy or policies containing a waiver of subrogation or naming Landlord as an additional insured, as provided in this Article 10, whether or not the loss, damage or destruction is due to the carelessness or negligence of Landlord, its servants, agents or employees. 10.05. Any insurance provided for in this Article may be effected by a policy or policies of blanket insurance. -14- ARTICLE 11 DAMAGE BY FIRE OR OTHER CAUSE 11.01. If the Building shall be totally damaged or destroyed by fire or other cause, then whether or not the damage or destruction shall have resulted from the fault or neglect of Tenant or its employees, agents or visitors, and provided Tenant has maintained the insurance coverages required under this Lease, Tenant shall have the sole right, upon ninety (90) days prior written notice to Landlord, to elect to (i) repair the damage and restore and rebuild the Building at Tenant’s sole cost and expense, and Landlord shall make any proceeds from Tenant’s insurance (other than insurance proceeds that relate to Tenant’s business interruption) available therefor, or (ii) terminate this Lease by notice to Landlord, in which event Tenant shall remit all of the insurance proceeds received by Tenant, other than insurance proceeds that relate to Tenant’s business interruption as a result of such event to Landlord, and upon delivery of all such insurance proceeds, this Lease shall be deemed terminated and of no further force and effect. In the event Tenant terminates this Lease in accordance with the provisions of this Section 11.01, Tenant shall restore the Land to substantially the same condition as existed on the Commencement Date, at its sole cost and expense, and Tenant shall not be entitled to utilize any of the insurance proceeds payable in connection with such damage or destruction for such restoration. For the purposes of this Section 11.01, the Premises shall be deemed totally damaged or destroyed if the replacement costs for such damaged or destroyed portions of the Building would exceed eighty percent (80%) of the replacement cost of the Building immediately preceding such damage or destruction. 11.02. If the Building shall be partially damaged or destroyed by fire or other cause, Tenant shall repair the damage and restore and rebuild the Building at Tenant’s sole cost and expense, and Landlord shall make any proceeds from Tenant’s insurance available therefor. 11.03. In no event shall Tenant be entitled to any abatement, allowance, reduction or suspension of Fixed Rent or Additional Rent because part or all of the Building shall be untenable owing to the partial or total destruction thereof, because of action or inaction by Tenant or Tenant’s agents and unless terminated in accordance with Section 11.01, this Lease shall remain in full force and effect and no such damage or destruction shall affect in any way the obligations of Tenant under this Lease. -15- ARTICLE 12 QUIET ENJOYMENT Landlord covenants and agrees that, subject to the terms and provisions of this Lease, if and for such period of time as Tenant keeps and performs, in all material respects, each and every covenant, agreement, term, provision and condition herein contained on the part or on behalf of Tenant to be kept or performed, Tenant shall be entitled to quietly and peacefully hold, occupy and enjoy the Premises and Tenant’s rights under this Lease during the Term. ARTICLE 13 UTILITIES 13.01. Tenant shall contract directly with the applicable public utility or other company for the installation and furnishing of any services or utilities needed for the Premises including, without limitation, heat, ventilation, air conditioning, water, gas, electricity, steam, telephone, elevator, cleaning or trash removal (the “Utilities”), and Tenant shall be solely responsible for paying for any and all of the foregoing, and shall obtain and cause to be installed separate meters for all Utilities. 13.02. In no event shall Landlord be responsible or liable for the failure to supply Tenant or the failure of Tenant to receive any Utilities, nor shall Tenant be entitled to any cessation, abatement, reduction or other offset of Fixed Rent, Revenue Rent or Additional Rent in the event of any failure to receive any Utilities, unless such failure results solely from the willful misconduct or gross negligence of Landlord or its agents. ARTICLE 14 LANDLORD’S REPRESENTATIONS WARRANTIES AND COVENANTS 14.01. Landlord is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas. Landlord has all requisite corporate power and authority to carry on its business as presently conducted and to enter into this Lease and to consummate the transactions contemplated hereby. All corporate acts and other proceedings required to be taken by Landlord to authorize the execution, delivery and performance of this Lease and Landlord’s obligations hereunder have been duly and properly taken. This Lease has been duly executed and delivered by Landlord and constitutes a valid and binding obligation of Landlord, enforceable against Landlord in accordance with its terms. 14.02. The execution and delivery of this Lease does not, and the consummation of the transaction contemplated hereby and compliance with the terms hereof will not, conflict with or result in any violation of (i) any provision of the Articles of Incorporation of Landlord, (ii) any -16- note, bond, mortgage, indenture, deed of trust, license, lease, contract, commitment, agreement or arrangement to which Landlord is a party, or (iii) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Landlord or to the Land. 14.03. During the term of this Lease as the owner of the Land and Building, Landlord shall keep the Land and the Building free and clear of any liens or encumbrances caused solely by Landlord which may affect Tenant’s use and development of the Land in accordance with the provisions of this Lease. 14.04. (i) As a material inducement to Tenant to enter into this Lease and to bear the significant expenses of obtaining Tenant’s Approvals and constructing the Building, Landlord hereby expressly covenants and agrees that, except with the written permission of Tenant, during the Term Landlord shall not, directly or indirectly, through any corporation, partnership, limited liability company, joint venture, or other entity or otherwise (a) be, own, manage, operate, control or have any financial interest in any corporation, partnership, limited liability company, joint venture or other entity which leases, conveys, sells, assigns, transfers or otherwise provides any third party with the use of any land located within Dallas County, Texas, for use as a funeral home, crematory, funeral chapel, flower shop or seller of monuments, grave-markers or outer interment receptacles, or any other related business (the “Business”), or (b) in any capacity enter into or engage in the Business, including without limitation enter into any agreement for the sale of vaults . Tenant shall not sell monuments or markers. Notwithstanding the foregoing, nothing in this Section 14.04(i) shall prevent Landlord from selling all those commodities (other than vaults) and services currently offered by the Cemetery in accordance with its current business practices. (ii) The parties agree that if any court of competent jurisdiction determines that any part of Section 14.04(i) is invalid or unenforceable, the remainder of Section 14.04(i)shall not be affected thereby and shall be given full effect without regard to the invalid part. Furthermore, if the application of any part of Section 14.04(i) to any person or circumstance shall be held invalid or unenforceable by any court of competent jurisdiction, the application of such part of 14.04(i) to persons or circumstances other than those as to which it has been held invalid or unenforceable shall not be affected thereby. In either of the foregoing cases, the parties agree that they shall amend Section 14.04(i) or the part thereof so determined to be invalid or unenforceable but only in the most minimal manner necessary to make Section 1404(i) comply with the determination of the court. 14.05. So long as this Lease remains in full force and effect, Tenant may use and include the name “Rolling Oaks” in any fictitious or other name that Tenant may adopt in conformity with and subject to the laws of the State of Texas in connection with the use and operation of the Premises. -17- 14.06. Landlord shall not make any public release or announcement concerning the transaction contemplated hereby without the prior written consent of Tenant, except to the extent any such release or announcement may be required by applicable law. ARTICLE 15 TENANTS REPRESENTATIONS, WARRANTIES AND COVENANTS 15.01. Tenant is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas. Tenant has all requisite corporate power and authority to carry on its business as presently conducted and to enter into this Lease and to consummate the transaction contemplated hereby. All corporate acts and other proceedings required to be taken by Tenant to authorize the execution, delivery and performance of this Lease and Tenant’s obligations hereunder have been duly and properly taken. This Lease has been duly executed and delivered by Tenant and constitutes a valid and binding obligation of Tenant enforceable against Tenant in accordance with its terms. 15.02. The execution and delivery of this Lease does not, and the consummation of the transaction contemplated hereby and compliance with the terms hereof will not, conflict with or result in any violation of (i) any provision of the Articles of Incorporation or Bylaws of Tenant, (ii) any note, bond, mortgage, indenture, deed of trust, license, lease, contract, commitment, agreement or arrangement to which Tenant is a party, or (iii) any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Tenant or to the Premises. 15.03. (i) As a material inducement to Landlord to enter into this Lease, Tenant hereby covenants and agrees that it shall not enter into funeral home and/or funeral home/chapel and/or crematory and/or funeral home/crematory land leases with any cemetery within the limits of Coppell, Texas. (ii) The parties agree that if any court of competent jurisdiction determines that any part of Section 15.03(i) is invalid or unenforceable, the remainder of Section 15.03(i) shall not be affected thereby and shall be given full effect without regard to the invalid part. Furthermore, if the application of any part of Section 15.03(i) to any person or circumstance shall be held invalid or unenforceable by any court of competent jurisdiction, the application of such part of Section 15.03(i) to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby. In either of the foregoing cases, the parties agree that they shall amend Section 15.03(i) or the part thereof so determined to be invalid or unenforceable but only in the most minimal manner necessary to make Section 15.03(i) comply with the determination of the court. 15.04. Tenant shall not make any public release or announcement concerning the transaction contemplated hereby without the prior written consent of Landlord, except to the extent any such release or announcement may be required by applicable law. -18- 15.05 Security Deposit. Tenant agrees to deliver to Landlord the sum of $40,000 (the “Security Deposit”) as a security deposit to be held and applied in accordance with the following provisions. A. Landlord will hold the Security Deposit until this Lease is terminated, and will return the Security Deposit to Tenant, without interest, within 60 days following Tenant’s surrender of the Premises to Landlord, after deducting those charges permitted under the law and this Lease. B. If Tenant fails to timely pay in full any rental installment or other sum required under this Lease, Landlord will have the right, but not the obligation, to off-set and deduct from the Security Deposit amounts necessary to make such payments. In such event, Tenant will promptly deliver to Landlord additional funds to restore the Security Deposit to its original amount. C. Tenant will not withhold payment of any rental installment, or any portion thereof, on grounds that the Security Deposit serves as security for unpaid rentals. 15.06 Payment Bond. Before commencing any work on the Land, Tenant will furnish to Landlord a statutory payment bond pursuant to §§53.201 et seq. of the Texas Property Code. The bond will be in a form and amount, and underwritten by a surety, satisfactory to Landlord. 15.07 Attorney’s Fees and Enforcement Costs. Tenant and Landlord shall pay their own expenses incurred in connection with the negotiation and execution of this Lease. In any mediation or legal proceeding to enforce the terms of this Lease, the successful party shall be entitled to recover it’s reasonable attorney’s fees and other costs from the party that refused or failed to perform its obligations under this Lease. 15.08 Mediation: All disputes arising out of this lease shall be negotiated for (60) sixty days by both parties before any action is taken. If the parties do not resolve the issues within (60) sixty days, the parties shall attend mediation with a mediator agreed upon by both parties. ARTICLE 16 BROKERAGE Each party covenants, represents and warrants to the other that it has had no dealings or communications with any broker or agent relating to the Premises or this Lease. Each party covenants and agrees to pay and to hold harmless and indemnify the other party from and against any and all claims for commissions, fees or other compensation by any broker who shall claim to have dealt with the indemnifying party in connection with the Premises or this Lease, and to pay for any and all costs, expenses (including, without limitation, reasonable attorneys’ fees and -19- disbursements and court costs), liabilities and penalties incurred in connection with any such claims. The provisions of this Article 16 shall survive the expiration or earlier termination of this Lease. ARTICLE 17 PROHIBITIONS ON MORTGAGES; LIENS Tenant shall not mortgage, pledge or encumber this Lease or the Premises or any part thereof in any manner. Notwithstanding the foregoing, if any mechanic’s or other lien or any notice of intention to file a lien is filed against the Premises for any work, labor, service or material claimed to have been performed or furnished for or on behalf of Tenant or anyone holding through or under Tenant, Tenant shall cause the same to be cancelled and discharged of record by payment, bond, order of a court of competent jurisdiction or otherwise within thirty (30) days after Tenant’s receipt of notice of the filing of such lien or notice. ARTICLE 18 NOTICES All notices provided for hereunder shall be in writing and shall be deemed to be given (i) when delivered to the party, or to an officer of the party, to which the notice is directed, or (ii) three (3) days after the same has been deposited in the United States mail, sent certified or registered with return receipt requested, postage prepaid and addressed as provided in this Article 18, or (iii) when delivered by an overnight delivery service (including United States Express Mail) with receipt acknowledged and with all charges prepaid by the sender, addressed as provided in this Article 18, or to such other person or address as either party shall furnish the other party in writing. Any such notice shall be directed as follows: If to Tenant to: ______________________________ ______________________________ ______________________________ ______________________________ With a copy to: ______________________________ ______________________________ ______________________________ ______________________________ and to: ______________________________ ______________________________ ______________________________ ______________________________ -20- If to Landlord, to: ____________________ ____________________ ____________________ With a copy to: ____________________ ____________________ ____________________ ARTICLE 19 EMINENT DOMAIN 19.01. If the whole of the Premises shall be acquired or condemned for any public or quasi-public use or purpose, this Lease and the Term shall end as of the date of the vesting of title. If only a part of the Premises shall be so acquired or condemned Tenant shall have the sole and absolute option to elect, upon ninety (90) days prior written notice, (i) to maintain this Lease in full force and effect with a pro rata reduction in Fixed Rent, or (ii) to terminate this Lease. 19.02. In the event of any such acquisition or condemnation of all or part of the Premises, Tenant shall be entitled to seek an award based on the value of Tenant’s business on the Premises for the remainder of the Term, including Tenant’s relocation expenses. Tenant shall have no right to any portion of any award which is based on the value of the Land or of the leasehold estate created by this Lease, all of which shall belong to Landlord. That portion of any award which is based on the value of the Building, however, shall be prorated between Landlord and Tenant based on when the date of taking occurs during the Lease Term. Landlord shall receive that percentage of the Building award equal to the ratio which the expired portion of the Lease Term bears to the entire Lease Term, and Tenant shall receive that percentage of the Building award equal to the ratio which the unexpired portion of the Lease Term bears to the entire Lease Term. ARTICLE 20 INDEMNITY To the fullest extent permitted by law, Tenant shall indemnify, defend and hold harmless Landlord, its partners, shareholders, officers, directors, employees and agents from and against (i) any and all claims, actions, damages, liabilities, losses, liens, proceedings, and demands (a) arising from the conduct of Tenant’s business in or management of the Premises or any work or thing whatsoever done or any condition created in or about the Premises during the Term, (b) arising from any wrongful act or omission or negligence of Tenant or any of its permitted subtenants (other than Landlord) -21- or licensees or its or their guests, invitees, patrons, employees, visitors, agents or contractors, or (c) arising from any accident, injury or damage occurring outside the Premises where such accident, injury or damage resulted or is claimed to have resulted from an act, omission or negligence of Tenant or any of its permitted subtenants (other than Landlord) or licensees or its or their guests, invitees, patrons, employees, visitors, agents or contractors, and (ii) all costs, expenses (including reasonable legal fees and expenses incurred by Landlord in any action or proceeding between Landlord and Tenant or between Landlord and any third party or otherwise) and liabilities incurred in or in connection with each such Claim or action or proceeding brought thereon. In case any action or proceeding is brought against Landlord by reason of any such Claim, or demand, Tenant, upon notice from Landlord, shall resist and defend such action or proceeding by counsel chosen by Tenant who shall be reasonably satisfactory to Landlord. Tenant or its counsel shall keep Landlord fully apprised at all times of the status of such defense. To the fullest extent permitted by law, Landlord shall indemnify, defend and hold harmless Tenant, its partners, shareholders, officers, directors, employees and agents from and against (i) any and all claims, actions, damages, liabilities, losses, liens, proceedings, and demands (a) arising from the conduct of Landlord’s business in or management of the Premises or any work or thing whatsoever done or any condition created in or about the Premises during the Term, (b) arising from any wrongful act or omission or negligence of Landlord or any of its permitted subtenants (other than Landlord) or licensees or its or their guests, invitees, patrons, employees, visitors, agents or contractors, or (c) arising from any accident, injury or damage occurring outside the Premises where such accident, injury or damage resulted or is claimed to have resulted from an act, omission or negligence of Landlord or any of its permitted subtenants (other than Landlord) or licensees or its or their guests, invitees, patrons, employees, visitors, agents or contractors, and (ii) all costs, expenses (including reasonable legal fees and expenses incurred by Tenant in any action or proceeding between Landlord and Tenant or between Tenant and any third party or otherwise) and liabilities incurred in or in connection with each such Claim or action or proceeding brought thereon. In case any action or proceeding is brought against Tenant by reason of any such Claim, or demand, Landlord, upon notice from Tenant, shall resist and defend such action or proceeding by counsel chosen by Landlord who shall be reasonably satisfactory to Tenant. Landlord or its counsel shall keep Tenant fully apprised at all times of the status of such defense. ARTICLE 21 ASSIGNMENT, SUBLETTING, ETC. 21.01. Tenant shall not assign, mortgage, pledge, encumber or in any manner transfer this Lease or any part thereof, or sublease the Premises or any part thereof, or suffer or permit the Premises or any part thereof to be used by others, or sell, transfer, mortgage, pledge, lease, -22- license or encumber the Premises or any part thereof without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Any attempt to do any of such acts without such consent shall be null and void and of no effect. For purposes of this Section 21.01, any agreement whereby the management or operation of any portion of the Premises shall be entrusted or otherwise transferred to a third party shall be deemed to be a lease or license of such portion and shall require the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right to assign this Lease or sublease the Premises, or any part thereof to an entity that is a wholly owned subsidiary or affiliated entity of Tenant without Landlord’s prior written consent. 21.02. If this Lease is assigned, or if the Premises or any part thereof is subleased or occupied by any person other than Tenant, whether or not in violation of the provisions of this Lease, Landlord may and is hereby empowered to collect the Fixed Rent, Revenue Rent and Additional Rent from the assignee, subtenant or occupant, as the case may be, and to enforce the obligations of Tenant hereunder against such assignee, subtenant or occupant. Landlord may apply the net amount received by it from any such assignee, subtenant or occupant to the Fixed Rent, Revenue Rent or Additional Rent, and no such collection nor any action to enforce the provisions of this Lease against any such assignee, subtenant or occupant shall be deemed (i) a waiver of the covenant herein against assignment, mortgage, encumbrance, pledge or subletting, (ii) an acceptance of the assignee, subtenant or occupant as a tenant under this Lease, or (iii) a release of Tenant from the further performance of its obligations hereunder. 21.03. The making of any assignment, mortgage, pledge, encumbrance or subletting in whole or in part, whether or not with the consent of Landlord, shall not operate to relieve Tenant from its obligations under this Lease, and, notwithstanding any such assignment, mortgage, pledge, encumbrance or subletting, Tenant shall remain liable for the payment of all Fixed Rent, Revenue Rent and Additional Rent and for the due performance of all of Tenant’s obligations under this Lease until the Expiration Date whether or not there shall have been any prior termination of this Lease by summary proceedings or otherwise. 21.04. Each and every assignee shall be approved by Landlord and, whether as assignee or as successor in interest of any assignee of Tenant, shall immediately be and become and remain liable for the payment of the Fixed Rent, Revenue Rent and Additional Rent and for the due performance of all of Tenant’s obligations under this Lease until the Expiration Date, and each and every provision of this Lease applicable to Tenant shall also apply to and bind every such assignee with the same force and effect as if such assignee were the original Tenant hereunder, and no such assignment shall be binding on Landlord unless such assignee shall deliver to Landlord a recordable instrument which contains a covenant of assumption by said assignee to such effect, of the failure or refusal of such assignee to deliver such instrument shall not release or discharge such assignee from its obligations as above set forth. 21.05. Any consent by Landlord hereafter given to any act of assignment, subletting, mortgage, pledge or encumbrance shall be held to apply only to the specific transaction thereby -23- approved. Such consent shall not be construed as a waiver of the duty of Tenant or its successors or assignees to obtain from Landlord a consent to any other or subsequent assignment, subletting, mortgage, pledge or encumbrance, or as a modification or limitation of the right of Landlord with respect to the covenants by Tenant in this Article 21. 21.06. If the controlling interest in Tenant is transferred, sold or otherwise disposed of without the prior written approval of Landlord, Landlord shall have the right at anytime thereafter to terminate this Lease by giving written notice of such termination to Tenant specifying a day not less than twenty (20) days and not more than forty (40) days thereafter and, upon the giving of such notice, this Lease and the Term and the estate hereby granted shall expire and terminate upon the day so specified in the notice as fully and completely and with the same force and effect as if the day so specified were the Expiration Date. Notwithstanding the foregoing, the provisions of this section shall not apply if the controlling interest is transferred, sold or otherwise disposed of to an entity which is controlled by Stewart Enterprises, Inc. ARTICLE 22 EVENTS OF DEFAULT The term “Event of Default” shall mean the occurrence or happening, from time to time, of any one or more of the following: (i) If Tenant shall fail to pay any Fixed Rent, Revenue Rent or Additional Rent when due and such nonpayment continues for ten (10) days after notice; or (ii) If Tenant fails to observe or perform any non-monetary covenant or obligation of this Lease and such failure continues for thirty (30) days after notice specifying same; or, if the condition cannot be remedied within thirty (30) days, if Tenant has not commenced remedial action and/or is not diligently pursuing same; or (iii) Whenever an involuntary petition shall be filed against Tenant under any bankruptcy or insolvency law or under the reorganization provisions of any law of like import, or a receiver of Tenant or of or for any Tenant’s Property shall be appointed without the acquiescence of Tenant, or whenever this Lease or the estate hereby granted or the unexpired balance of the Term would, by operation of law otherwise, except for this provision, devolve upon or pass to any person, firm, corporation or entity other than Tenant, or upon or to any corporation or other entity in which Tenant may be duly merged, converted or consolidated under statutory procedure, and such situation under this subsection (iii) shall continue and shall remain undischarged or unstayed for an aggregate period of sixty (60) days (whether or not consecutive) or shall not be remedied by Tenant within sixty (60) days; or -24- (iv) Whenever Tenant shall make an assignment of any of Tenant’s Property for the benefit of creditors or shall file a voluntary petition under any bankruptcy or insolvency law, or whenever any court of competent jurisdiction shall approve a petition filed by Tenant under the reorganization provisions of the United States Bankruptcy Act or under the provisions of any law of like import, or whenever a petition shall be filed by Tenant under the arrangement provisions of the United States Bankruptcy Act or under the provisions of any law of like import, or whenever Tenant shall desert or abandon the Premises; or (v) If any representation or warranty made by Tenant herein shall be false, misleading or incorrect in any material respect when made. ARTICLE 23 LANDLORD’S RIGHTS UPON TENANT’S DEFAULT 23.01 Upon the occurrence of any event of default specified in paragraph 23.01, Landlord will have the option to pursue one of the following remedies: A. Landlord may enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises without being liable, according to landlord tenant law in the State of Texas for prosecution of any claim for damages for such entrance and expulsion or removal, relet the Premises at then- market rates, and receive the rent for reletting. Tenant agrees to pay Landlord on demand any deficiency that may arise by reason of such reletting. B. Landlord may enter the Premises and do, at Tenant’s expense, whatever Tenant is obligated to do under this agreement to correct the default. Tenant agrees that Landlord will not be liable for any damages resulting to Tenant from such entry. The remedies set out in this paragraph 23.01 shall be in addition to and cumulative of all remedies, legal or equitable, otherwise available to Landlord under Texas law. ARTICLE 24 MEMORANDUM OF LEASE If requested by Landlord or Tenant, Landlord and Tenant shall execute and deliver a mutually acceptable memorandum of this Lease for the purpose of recording, but said memorandum of Lease shall not in any circumstance be deemed to modify or to change any of the provisions of this Lease. Upon the Expiration Date or any sooner termination of this Lease, Tenant shall execute and deliver to Landlord, in recordable form, a quitclaim deed of the Premises. -25- ARTICLE 25 IMPAIRMENT OF LANDLORD’S TITLE Nothing in this Lease nor any action or inaction by Landlord shall be deemed or construed to mean that Landlord has granted to Tenant any right, power or permission to do any act or make any agreement which may create, give rise to or be the foundation for any right, title, interest, lien, charge or other encumbrance upon the estate of Landlord in the Premises. In amplification and not in limitation of the foregoing, Tenant shall not permit any portion of the Premises to be used by any person or by the public at any time during the Term in such manner as might reasonably make possible a claim of adverse use, adverse possession, prescription, dedication or other similar claim of, in, to or with respect to the Premises or any part thereof. Landlord may from time to time, but without affecting in any manner its rights or remedies in respect hereof should it elect or fail or refuse to do so, impose upon Tenant such rules or regulations as to the use or possession by any person or by the public as may reasonably be consistent with Landlord’s protection against any such possible claim, all of which rules or regulations shall be fully and promptly performed and enforced by Tenant at Tenant’s own cost and expense. ARTICLE 26 ESTOPPEL CERTIFICATE The parties mutually agree that at any time and from time to time, upon written request of the other party and at no cost or expense to the party complying with the request, Landlord or Tenant, as the case may be, shall execute, acknowledge and deliver to the requesting party a certificate evidencing: (i) That this Lease is in full force and effect; (ii) The amounts of the Fixed Rent and Revenue Rent most recently paid, and the dates to which such Rents have been paid; (iii) Whether there is any Additional Rent due, and if so the amount thereof; (iv) Whether this Lease has been modified or amended in any respect, and identifying such modification or amendment, if any; and (v) Whether there is any existing default hereunder to the knowledge of the party executing the certificate, and specifying the nature of such default, if any. -26- ARTICLE 27 SIGNS Tenant shall not provide, install or maintain any exterior sign in the windows of the Building, or on the roof, facade or walls of the Building or on any grounds adjacent thereto or surrounding the Land, unless: (i) Each such sign shall have been reasonably approved by Landlord in writing before installation; and (ii) Each such sign shall at all times conform to all applicable rules, regulations, codes and ordinances of any governmental agency having jurisdiction thereover. All such signs shall be provided, installed, maintained and removed at the termination of the Lease at Tenant’s sole cost and expense. Tenant further agrees that it shall not place any advertisements or other type of structure or obstruction on the roof, facade or wails of the Building without the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, and that it shall not operate any loudspeaker or other device which can be heard outside the Building. ARTICLE 28 ENVIRONMENTAL COMPLIANCE 28.01. Tenant shall not generate, make, store, use, treat, or dispose of any “hazardous substance” (as that term is defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42, U.S.C. Section 9601 et. seq. under all federal, state and local laws and ordinances, and all rules and regulations promulgated thereunder, as from time to time amended (“Hazardous Substance Laws”)), pollutant or other contaminant on or about the Premises except as are usual and customary in Tenant’s business and in compliance with all applicable laws. Tenant shall promptly notify Landlord of (i) any violation of the hazardous substance covenant contained in this Section 28.01 and/or (ii) any environmental concern raised by a private party or governmental agency. In the event that Tenant violates the hazardous substance covenant contained in this Section 28.01, Tenant, at its sole cost and expense, shall promptly take any cleanup action that is required by any governmental authority having jurisdiction. In the event that Tenant does not undertake and perform appropriate cleanup action, Landlord shall have the right, but not the obligation, to perform any such necessary cleanup action and Tenant shall be liable to Landlord for all costs and expenses therefor, of whatsoever nature or kind, including without limitation reasonable attorneys’ fees and disbursements, which costs and expenses shall be due and payable to Landlord on demand. Landlord shall have the unrestricted right at all times upon reasonable prior notice to Tenant to conduct any environmental tests necessary to discover a purported violation of the hazardous substance covenant contained in this Section 28.01. -27- Landlord and Tenant shall comply with all applicable local, state or federal governmental obligations to remove or remediate any hazardous substances that were brought to or created on or about the Premises on or after the Commencement Date. Tenant agrees to indemnify and hold Landlord, its officers, directors, members, affiliates, employees, agents and representatives harmless from, and to defend Landlord, with counsel reasonably acceptable to Landlord, against any and all environmental claims, environmental clean-up liability, environmental compliance costs, the effect of any environmental laws and any and all other actions, causes of action, suits, proceedings, administrative orders, costs, charges, damages, losses, liabilities and claims (including reasonable attorneys’ fees and costs) of any nature whatsoever, assessed, levied or asserted against the Premises, the Cemetery (so long as said claim in no way relates to the actions of Landlord) or Landlord resulting from a violation or an alleged violation of any environmental law and arising from or connected in any way with (i) the physical or environmental condition of the Premises which first occurred on or after the Commencement Date, or (ii) the existence of any hazardous substances, or the release or threatened release of hazardous substances of any kind whatsoever, in, on, under, above or about the Premises, occurring at any time if caused by conditions which first occurred on or after the Commencement Date. In addition, Landlord agrees to indemnify and hold Tenant, its officers, directors, members, affiliates, employees, agents and representatives harmless from, and to defend Tenant, with counsel reasonably acceptable to Tenant, against any and all environmental claims, environmental clean-up liability, environmental compliance costs, the effect of any environmental laws and any and all other actions, causes of action, suits, proceedings, administrative orders, costs, charges, damages, losses, liabilities and claims (including reasonable attorneys’ fees and costs) of any nature whatsoever, assessed, levied or asserted against the Premises, the Cemetery (so long as said claim in no way relates to the actions of Tenant) or Tenant resulting from a violation or an alleged violation by Landlord of any environmental law and arising from or connected in any way with (i) the physical or environmental condition of the Premises which first occurred on or after the Commencement Date, or (ii) the existence of any hazardous substances, or the release or threatened release of hazardous substances of any kind whatsoever, in, on, under, above or about the Premises, occurring at any time if caused by conditions which first occurred on or after the Commencement Date. ARTICLE 29 TERMINATION BY TENANT This Lease may be terminated at any time before Tenant shall have obtained the License, but in no event more than eighteen months after the Commencement Date, this date may be extended if requested in writing by Dec. 31, 2008 by Tenant giving written notice to Landlord that Tenant has elected to terminate this Lease; provided, however, that if Tenant terminates this Lease for any reason other than Tenant’s inability to obtain all needed approvals as set forth in -28- Section 2.09, Tenant shall pay liquidated damages to Landlord in the sum of forty thousand dollars ($40,000) as provided in Section 3.01 upon delivery of such notice, which sum Tenant agrees is a fair and reasonable termination fee and is not a penalty. ARTICLE 30 MUTUAL COOPERATION During the Term, Landlord and Tenant shall cooperate with each other to the greatest extent possible in order to provide more complete and convenient funeral home, crematory and cemetery services. This will include scheduling and coordinating open houses, memorial services (e.g., on Memorial Day and Easter) and similar events to honor the dead, to observe religious days and to acquaint the public with and to promote the Cemetery and the Building; including in advertisements, listings and promotional and informational materials the fact that the Cemetery and the Building are adjacent to each other and the benefits which such proximity provides to the users of either or both facilities; exchanging both pre-need and at-need existing and future customer and contract information in order that the receiving party may utilize such information to prevent multiple contact of customers. The retail installment agreements and other printed material as mutually agreed to by Landlord and Tenant, utilized by Tenant in the operation of the mortuary, shall indicate that ownership and operation of the Cemetery and mortuary is separate and distinct. Landlord agrees not to hire any employees from tenant without authorization from tenant. ARTICLE 31 MISCELLANEOUS 31.01. This Lease shall be governed by and shall be construed and interpreted in accordance with the laws of the State of Texas. 31.02. This Lease shall be construed and interpreted without regard to any presumption or other rule requiring interpretation against the party which drafted this Lease. 31.03. All terms and words used in this Lease, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. 31.04. This Lease shall not be binding upon either party unless and until it is signed by such party and a signed copy thereof is delivered to the other party. 31.05. If any term, covenant, condition or provision of this Lease or the application thereof to any circumstance or to any person, firm or corporation shall be invalid or unenforceable to any extent, the remaining terms, covenants, conditions and provisions of this -29- Lease, or the application thereof to any circumstance or to any person, firm or corporation other than those as to which such term, covenant, condition or provision or application thereof is held invalid or unenforceable, shall not be affected thereby and each remaining term, covenant, condition and provision of this Lease shah be valid and shall be enforceable to the fullest extent permitted by law. 31.06. The captions of the Articles hereof are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Lease, nor the intent of any provision thereof. 31.07. The parties acknowledge that this Lease, the Sublease attached hereto as Exhibit C, and the method of operation on the Premises do not constitute or create an agency, joint venture or partnership between the parties. The relationship remains that of Landlord, Tenant, Sublessor and Subtenant. No commissions or other fees shall be paid or payable by either party to the other or to their respective employees, agents or personnel for any information exchanged hereunder or as a result of sales made utilizing such information. 31.08. Notwithstanding any provision contained in this Agreement, Landlord preserves the right to protect its status as an entity exempt from certain requirements of Texas law in the operation of the Cemetery. Any actions that may jeopardize such status are hereby deemed unreasonable. 31.09. This Lease may be amended or modified only by written agreement executed by the parties. IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed and delivered by their proper officers respectively thereunto duly authorized as of the day and year first above written. Landlord: CITY OF COPPELL By:__________________________________________ Tenant: S. E. FUNERAL HOME OF COPPELL, TEXAS, INC. d/b/a/ Restland Funeral Home-Coppell Chapel By:__________________________________________ -30- EXHIBIT A Description of Land When the parties mutually agree upon the precise location and design of the Building and the Premises, an exact legal description of the Land shall be prepared, shall be approved by both parties and shall then be substituted as a new Exhibit A in place of this Exhibit A. -31- EXHIBIT B Survey of Land (To be provided) -32- EXHIBIT C Form of Office Sublease -33- OFFICE SUBLEASE This Office Sublease (“Sublease”), dated ________________________, is between [entity to be formed], a ___________corporation (“Sublessor”), and CITY OF COPPELL, a Texas city (“Sublessee”). R E C I T A L S Sublessee, as Landlord, and Sublessor, as Tenant, executed an Agreement of Lease on _____________________. The Agreement of Lease is hereinafter referred to as the “Master Lease.” By the terms of the Master Lease, certain land in the City of Coppell, State of Texas was leased to Sublessor for a term of approximately 30 years. The Master Lease, by this reference, is hereby incorporated as though set forth in full herein. Sublessor desires to sublease to Sublessee a portion of the Building (as such term is defined in the Master Lease) to be constructed by Sublessor under the terms of the Master Lease, and Sublessee desires to sublease those premises from Sublessor. NOW, THEREFORE, Sublessor and Sublessee agree as follows: 1. Leasing and Description of Property. Subject to the terms, conditions and covenants set forth in this Sublease, Sublessor hereby subleases to Sublessee, and Sublessee hereby subleases from Sublessor, approximately __________ square feet within the Building in an area reasonably agreed upon by the parties (the “Subleased Premises”). 2. Term. This Sublease shall commence on the date on which construction of the Building is substantially complete and occupancy of the Subleased Premises is available to Sublessee (“Commencement Date”) and ending at noon local time on December 31 of the year in which the thirtieth anniversary of the Commencement Date occurs (hereinafter referred to as the “Sublease Term”) or until the Sublease Term shall sooner terminate as hereinafter provided. A “Sublease Year” under this Lease shall be any 12 consecutive month period commencing January 1 and ending December 31, except that the term “Sublease Year” for the first year shall apply to the period from the Commencement Date through the following December 31. 3. Rent. Sublessee shall pay to Sublessor the sum of $1 per year as rent for the Subleased Premises. 4. Use of Premises. Sublessee shall use and occupy the Subleased Premises for cemetery administrative offices, sales and marketing activities, and related purposes, but for no unrelated purpose. -34- 5. Applicability of Master Lease. This Sublease is subject and subordinate to the terms and conditions of the Master Lease. Except as herein provided to the contrary, Sublessee shall not commit any act which violates any obligations required to be kept or performed by the Tenant under the provisions of the Master Lease. Sublessor may enforce all terms of the Master Lease against Sublessee to the extent applicable to Sublessee. 6. Quiet Enjoyment. Sublessor covenants that Sublessee shall be entitled to quiet enjoyment of the Subleased Premises provided that Sublessee complies with the terms of this Sublease. 7. Utilities. Sublessee shall pay, directly to the appropriate supplier, all charges relating to its telephone service. All charges with respect to other utilities (including gas, electricity, water, steam, garbage removal, sewer, general plumbing, heating, ventilating and air conditioning and other mechanical systems supplied to the Building shall be paid by Sublessor. 8. Improvements to Premises. Sublessor shall build out the Subleased Premises as reasonably agreed between Sublessor and Sublessee in accordance with the specifications attached hereto as Exhibit “A.” Landlord shall provide Tenant with interior finishes of a quality comparable to the interior finishes in the administrative areas of the Building. All improvements, of whatever nature, placed by Tenant on the Subleased Premises, except movable trade fixtures, shall at once become the property of Sublessor and shall so remain at the termination of this Sublease. 9. Insurance. At all times during the Sublease Term, Sublessee shall provide and maintain, at Sublessee’s expense, General Public Liability Insurance, in an amount applicable to bodily injury and property damage of $1 million combined single limit, with not more than $5,000 deductible, which insurance shall cover Sublessee’s occupancy of the Subleased Premises and Sublessee’s obligations under this Sublease. Sublessor shall have the right from time to time of requiring Sublessee to increase the amount of such coverage upon the reasonable advice of Sublessor’s Risk Manager. Sublessor shall be named as an additional insured on any such policy. Sublessee shall provide, upon request, an appropriate certificate of insurance and shall permit Sublessor to review Sublessee’s policy(ies) upon reasonable request during regular office hours. Sublessee shall maintain fire and extended coverage insurance on Sublessee’s property located in the Subleased Premises as Sublessee shall deem appropriate. No such coverage will be provided by Sublessor. 10. Sublease is a Gross Lease. Except for its own telephone charges as provided in paragraph 7 above, and its premiums for insurance as provided in paragraph 9 above, Sublessee’s only cost for the occupancy of the Subleased Premises during the Sublease Term shall be the Annual Rent. Sublessor shall be responsible for all other costs and expenses, including capital and replacement costs, relative to the Building, the Subleased Premises and Sublessee’s occupancy of the Subleased Premises, specifically including the costs and expenses of all -35- janitorial, painting, utilities, maintenance, repairs, replacements, property taxes, fire and other casualty insurance, and all other costs and expenses which except for this paragraph 10 would or could be attributable to the Subleased Premises or to Sublessee’s occupancy thereof either pursuant to the Master Lease or otherwise. 11. Termination of Master Lease. If the Master Lease is terminated, this Sublease shall terminate simultaneously and the Sublessor and Sublessee shall thereafter be released from all obligations under this Sublease, and Sublessor shall refund to Sublessee any unearned rent paid in advance. This Sublease grants Sublessee no rights beyond termination of the original term of the Master Lease. 12. Assignment. Sublessee may assign or encumber its interest in the Sublease or the Subleased Premise with the written consent of Sublessor, which consent will not be unreasonably withheld. EXECUTED at Coppell, Texas, on the date specified in the first paragraph of this Sublease. SUBLESSEE: CITY OF COPPELL a Texas city By: _____________________________________ SUBLESSOR: S. E. Funeral Home of Coppell, Texas, Inc. d/b/a Restland Funeral Home-Coppell Chapel a Texas corporation By: ______________________________________ -36- EXHIBIT A Construction Specifications For the Subleased Premises -37- AGENDA REQUEST FORM DATE: March 11, 2008 ITEM #: 19 MAYOR AND COUNCIL REPORTS A. Report by Mayor Stover regarding Metroplex Mayors Meeting. B. Report by Mayor Stover regarding Community Egg Hunt, Saturday, March 22, 11:00 a.m. at Wagon Wheel Park. C. Report by Mayor Stover regarding New Tech High registration. Agenda Request Form - Revised 09/02 Document Name: %mayorreport AGENDA REQUEST FORM DATE: March 11, 2008 ITEM #: 20 NECESSARY ACTION RESULTING FROM WORK SESSION Agenda Request Form - Revised 02/04 Document Name: %necessaryactionwork AGENDA REQUEST FORM DATE: March 11, 2008 ITEM #: 21 NECESSARY ACTION RESULTING FROM EXECUTIVE SESSION Agenda Request Form - Revised 09/02 Document Name: %necessaryactionexec CERTIFICATE OF AGENDA ITEM SUBMISSION Council Meeting Date: March 11, 2008 Department Submissions: Item Nos. 8/G and 17 were placed on the Agenda for the above- referenced City Council meeting by the Engineering Department. I have reviewed the Agenda Requests (and any backup if applicable) and hereby submit these items to the City Council for consideration. ____________________ Engineering Department Item Nos. 15 and 16 were placed on the Agenda for the above-referenced City Council meeting by the Parks Department. I have reviewed the Agenda Requests (and any backup if applicable) and hereby submit these items to the City Council for consideration. ____________________ Parks Department Item Nos. 8/E, 8/F, 8/H, 9, 10, 11, 12, 13 and 14 were placed on the Agenda for the above-referenced City Council meeting by the Planning Department. I have reviewed the Agenda Requests (and any backup if applicable) and hereby submit these items to the City Council for consideration. ____________________ Planning Department Financial Review: I certify that I have reviewed all the items submitted for consideration on the Agenda for the above-referenced City Council Meeting and have inserted any financial comments where appropriate. ____________________ Finance Department City Manager Review: I certify that I have reviewed the complete Agenda and Packet for the above-referenced City Council Meeting he same to the and hereby submit t City Council for consideration. ____________________ City Manager (or Deputy City Manager)