Loading...
HomeMy WebLinkAboutAgenda 09-05-06 Names Tabs (3.1) 5. Representations and Warranties. 5.1. Redflex Representations and Warranties. 5.1.1. Authority. Redflex hereby warrants and represents that it has all right, power and authority to execute and deliver this Agreement and perform its obligations hereunder. 5.1.2. Professional Services. Redflex hereby warrants and represents that any and all services provided by Redflex pursuant to this Agreement shall be performed in a professional and workmanlike manner and, with respect to the installation of the Redflex System, subject to applicable law, in compliance with all specifications provided to Redflex by the Customer. 5.2. Customer Representations and Warranties. 5.2.1. Authority. The Customer hereby warrants and represents that it has all right, power and authority to execute and deliver this Agreement and perform its obligations hereunder. 5.2.2. Professional Services. The Customer hereby warrants and represents that any and all services provided by the Customer pursuant to this Agreement shall be performed in a professional and workmanlike manner. 5.3. LIMITED WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, REDFLEX MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE REDFLEX SYSTEM OR ANY RELATED EQUIPMENT OR WITH RESPECT TO THE RESULTS OF THE CUSTOMER'S USE OF ANY OF THE FOREGOING. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, REDFLEX DOES NOT WARRANT THAT ANY OF THE DESIGNATED INTERSECTION APPROACHES OR THE REDFLEX SYSTEM WILL OPERATE IN THE WAY THE CUSTOMER SELECTS FOR USE, OR THAT THE OPERATION OR USE THEREOF WILL BE UNINTERRUPTED. THE CUSTOMER HEREBY ACKNOWLEDGES THAT THE REDFLEX SYSTEM MAY MALFUNCTION FROM TIME TO TIME, AND SUBJECT TO THE TERMS OF THIS AGREEMENT, RED FLEX SHALL DILIGENTLY ENDEAVOR TO CORRECT ANY SUCH MALFUNCTION IN A TIMELY MANNER. 6. Termination. 6.1. TERMINATION FOR CAUSE: Either party shall have the right to terminate this Agreement immediately by written notice to the other if (i) state statutes are amended to prohibit or substantially change the operation of photo red light enforcement systems; (ii) any court having jurisdiction over the City rules, or a state or federal statute or judicial decision declares, that results from the Redflex System of photo red light enforcement are inadmissible in evidence; or (iii) the other party commits any material breach of any of the provisions of this Agreement. In the event of a termination due to Section 6.l(i) or 6.l(ii) above, Customer shall be relieved of any further obligations for payment to Redflex other than as specified in Exhibit "D". Either party shall have the right to remedy the cause for termination (Sec 6.1) within forty-five (45) calendar days 10 (or within such other time period as the Customer and Redflex shall mutually agree, which agreement shall not be unreasonably withheld or delayed) after written notice from the non-causing party setting forth in reasonable detail the events of the cause for termination. 6.2. The rights to terminate this Agreement given in this Section 6.1 shall be without prejudice to any other right or remedy of either party in respect of the breach concerned ( if any) or any other breach of this Agreement. 6.3. PROCEDURES UPON TERMINATION. The termination of this Agreement shall not relive either party of any liability that accrued prior to such termination. Except as set forth in Section 6.3, upon the termination of this Agreement, all of the provisions of this Agreement shall terminate and: 6.3.1. Redflex shall (i) immediately cease to provide services, including but not limited to work in connection with the construction or installation activities and services in connection with the Photo Red Light Enforcement Program, (ii) promptly deliver to the Customer any and all Proprietary Property of the Customer provided to Redflex pursuant to this Agreement, (iii) promptly deliver to the Customer a final repOlt to the Customer regarding the collection of data and the issuance of Notice of Violations in such format and for such periods as the Customer may reasonably request, and which final report Redflex shall update or supplement from time to time when and if additional data or information becomes available, (iv) promptly deliver to Customer a final invoice stating all fees and charges properly owed by Customer to Redflex for work performed and Notice of Violations issued by Redflex prior to the termination, and (v) provide such assistance as the Customer may reasonably request from time to time in connection with prosecuting and enforcing Notice of Violations issued prior to the termination of this Agreement. 6.3.2. The Customer shall (i) immediately cease using the Photo Red Light Enforcement Program, accessing the Redflex System and using any other Intellectual Property of Redflex, (ii) promptly deliver to Redflex any and all Proprietary Property of Redflex provided to the Customer pursuant to this Agreement, and (iii) promptly pay any and all fees, charges and amounts properly owed by Customer to Redflex for work performed and Notice of Violations issued by Redflex prior to the termination. 6.3.3. Unless the Customer and Redflex have agreed to enter into a new agreement relating to the Photo Red Light Enforcement Program or have agreed to extend the Term of this Agreement, Redflex shall remove any and all Equipment or other materials of Redflex installed in connection with Redflex's performance of its obligations under this Agreement, including but not limited to housings, poles and camera systems, and Redflex shall restore the Designated City Vehicles and Designated Intersection Approaches to substantially the same condition such Designated Intersection Approaches were in immediately prior to this Agreement. 11 6.4. TERMINATION FOR CONVENIENCE. The Customer may terminate this Agreement without cause ("Termination for Convenience") at any time by giving thirty (30) days' written notice thereof to Redflex. In the event the Customer exercises its right to Termination for Convenience, the Customer shall reimburse Redflex an amount equal to the Unamortized Value, as hereinafter defined, of the direct labor costs and direct material costs (not including Equipment costs and salvageable material costs) solely associated with the installation of the Redflex Photo Red Light System at all Intersection Approaches where such system(s) have been installed prior to the effective date of Termination for Convenience (the "Reimbursable Costs"). Redflex shall provide an itemization of the Reimbursable Costs, with supporting invoices and labor expense documentation, to the Customer within thirty (30) days of the completion of installation of the Redflex Photo Red Light System at each designated Intersection Approach. Said Reimbursable Costs are currently estimated to equal approximately $25,000 to $40,000 per Intersection Approach but, in no event, shall said amount exceed $40,000 per Intersection Approach. For the purpose of this section, the Unamortized Value for each Intersection Approach shall be derived as follows: first, by multiplying the Reimbursable Costs by the number of complete months remaining between the effective Termination for Convenience date and the date that is 36 month after the Effective Date, and, then, by dividing said product by the number of complete months between the date of the completion of installation of the Redflex Photo Red Light System at said Intersection Approach and the date that is 36 months after the Effective Date. 6.5. SURVIVAL. Notwithstanding the foregoing, the definitions and each of the following shall survive the termination of this Agreement: (x) Sections 4.2 (Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2 (Customer Representations and Warranties), 5.3 (Limited Warranty), 7 (Confidentiality), 8 (Indemnification and Liability), 9 (Notices), 10 (Dispute Resolution), 11.1 (Assignment), 11.17 (Applicable Law), 11.16 (Injunctive Relief; Specific Performance) and 11.18 (Jurisdiction and Venue), and (y) those provisions, and the rights and obligations therein, set forth in this Agreement which either by their terms state, or evidence the intent of the parties, that the provisions survive the expiration or termination of the Agreement, or must survive to give effect to the provisions of this Agreement. 7. CONFIDENTIALITY. During the term of this Agreement and for a period of three (3) years thereafter, neither party shall disclose to any third person, or use for itself in any way for pecuniary gain, any Confidential Information learned from the other party during the course of the negotiations for this Agreement or during the Term of this Agreement. Upon termination of this Agreement, each party shall return to the other all tangible Confidential Information of such party. Each party shall retain in confidence and not disclose to any third party any Confidential Information without the other patty's express written consent, except (a) to its employees who are reasonably required to have the Confidential Information, (b) to its agents, representatives, attorneys and other professional advisors that have a need to know such Confidential Information, provided that such parties undertake in writing (or are otherwise bound by rules of professional conduct) to keep such information strictly 12 confidential, and (c) pursuant to, and to the extent of, a request or order by any Governmental Authority, including laws relating to public records. 8. Indemnification and Liabilitv. 8.1. Indemnification by Redflex. Subject to Section 8.3, Redflex hereby agrees to defend and indemnify the Customer and its affiliates, shareholders or other interest holders, managers, officers, directors, employees, agents, representatives and successors, permitted assignees and each of their affiliates, and all persons acting by, through, under or in concert with them, or any of them (individually a "Customer Party" and collectively, the "Customer Parties") against, and to protect, save and keep harmless the Customer Parties from, and to pay on behalf of or reimburse the Customer Parties as and when incurred for, any and all liabilities, obligations, losses, damages, penalties, demands, claims, actions, suits, judgments, settlements, costs, expenses and disbursements (including reasonable attorneys', accountants' and expert witnesses' fees) of whatever kind and nature (collectively, "Losses"), which may be imposed on or incurred by any Customer Party arising out of or related to (a) any material misrepresentation, inaccuracy or breach of any covenant, warranty or representation of Redflex contained in this Agreement, or (b) the willful misconduct of Redflex, its employees or agents which result in death or bodily injury to any natural person (including third parties) or any damage to any real or tangible personal property (including the personal property of third parties), except to the extent caused by the willful misconduct of any Customer Party. 8.2. Indemnification by Customer. Subject to Section 8.3, the Customer, to the extent allowed by law and without waiving any rights, defenses or immunities provided to it by the Texas TOlt Claims Act, hereby agrees to defend and indemnify Redflex and its affiliates, shareholders or other interest holders, managers, officers, directors, employees, agents, representatives and successors, permitted assignees and all persons acting by, through, under or in concert with them, or any of them (individually a "Redflex Party" and collectively, the "Redflex Parties") against, and to protect, save and keep harmless the Redflex Parties from, and to pay on behalf of or reimburse the Redflex Parties as and when incurred for, any and all Losses which may be imposed on or incurred by any Redflex Party arising out of or in any way related to (a) any material misrepresentation, inaccuracy or breach of any covenant, warranty or representation of the Customer contained in this Agreement, or (b) the negligence of the Customer, its employees, contractors or agents which result in death or bodily injury to any natural person (including third parties) or any damage to any real or tangible personal property (including the personal property of third parties), except to the extent caused by the willful misconduct of any Redflex Party. 8.3. Indemnification Procedures. In the event any claim, action or demand (a "Claim") in respect of which any party hereto seeks indemnification from the other, the party seeking indemnification (the "Indemnified Party") shall give the party from whom indemnification is sought (the "Indemnifying Party") written notice of such Claim promptly after the Indemnified Party first becomes aware thereof; provided, however, that failure so to give such notice shall not preclude 13 indemnification with respect to such Claim except to the extent of any additional or increased Losses or other actual prejudice directly caused by such failure. The Indemnifying Party shall have the right to choose counsel to defend such Claim (subject to the approval of such counsel by the Indemnified Party, which approval shall not be unreasonably withheld, conditioned or delayed), and to control, compromise and settle such Claim, and the Indemnified Party shall have the right to participate in the defense at its sole expense; provided, however, the Indemnified Party shall have the right to take over the control of the defense or settlement of such Claim at any time if the Indemnified Party irrevocably waives all rights to indemnification from and by the Indemnifying Party. The Indemnifying Party and the Indemnified Party shall cooperate in the defense or settlement of any Claim, and no party shall have the right enter into any settlement agreement that materially affects the other party's material rights or material interests without such party's prior written consent, which consent will not be unreasonably withheld or delayed. 8.4. LIMITED LIABILITY. Notwithstanding anything to the contrary in this Agreement, neither party shall be liable to the other, by reason of any representation or express or implied warranty, condition or other term or any duty at common or civil law, for any indirect, incidental, special, lost profits or consequential damages, however caused and on any theory of liability arising out of or relating to this Agreement. 9. NOTICES. Any notices to be given hereunder shall be in writing, and shall be deemed to have been given (a) upon delivery, if delivered by hand, (b) three (3) days after being mailed first class, certified mail, return receipt requested, postage and registry fees prepaid, or (c) one Business Day after being delivered to a reputable overnight courier service, excluding the U.S. Postal Service, prepaid, marked for next day delivery, if the courier service obtains a signature acknowledging receipt, in each case addressed or sent to such party as follows: 9.1. Notices to Redflex: Redflex Traffic Systems, Inc. 15020 North 74th Street Scottsdale, AZ 85260 Attention: Ms. Karen Finley Facsimile: (480) 607-5552 9.2. Notices to the Customer: City of University Park Attention: Chief of Police 3800 University Blvd. University Park, Texas 75205 (214) 363-1644 Facsimile: (214) 987-5399 10. DISPUTE RES'OLUTION. Upon the occurrence of any dispute or disagreement between the parties hereto arising out of or in connection with any term or provision of this Agreement, the subject matter hereof, or the interpretation or enforcement hereof (the "Dispute"), the patties shall engage in informal, good faith discussions 14 and attempt to resolve the Dispute. In connection therewith, upon written notice of either party, each of the parties will appoint a designated officer whose task it shall be to meet for the purpose of attempting to resolve such Dispute. The designated officers shall meet as often as the parties shall deem to be reasonably necessary. Such officers will discuss the Dispute. If the parties are unable to resolve the Dispute in accordance with this Section 10, and in the event that either of the parties concludes in good faith that amicable resolution through continued negotiation with respect to the Dispute is not reasonably likely, then the parties may mutually agree to submit to binding or nonbinding arbitration or mediation. 11. Miscellaneous. 11.1. ASSIGNMENT. Neither party may assign all or any portion of this Agreement without the prior written consent of the other. However, the Customer hereby acknowledges and agrees that the execution (as outlined in Exhibit "F"), delivery and performance of Redflex's rights pursuant to this Agreement shall require a significant investment by Redflex, and that in order to finance such investment, Redflex may be required to enter into certain agreements or arrangements ("Financing Transactions") with equipment lessors, banks, financial institutions or other similar persons or entities (each, a "Financial Institution" and collectively, "Financial Institutions"). The Customer hereby agrees that Redflex shall have the right to assign, pledge, hypothecate or otherwise transfer ("Transfer") its rights, or any of them, under this Agreement to any Financial Institution in connection with any Financing Transaction between Redflex and any such Financial Institution, subject to the Customer's prior written approval, which approval shall not be unreasonably withheld or delayed. The Customer further acknowledges and agrees that in the event that Redflex provides written notice to the Customer that it intends to Transfer all or any of Redflex's rights pursuant to this Agreement, and in the event that the Customer fails to provide such approval or fails to object to such Transfer within forty-five (45) business days after its receipt of such notice from Redflex, for the purposes of this Agreement, the Customer shall be deemed to have consented to and approved such Transfer by Redflex. Notwithstanding the above, this Agreement shall inure to the benefit of, and be binding upon, the parties hereto, and their respective successors or assigns. 11.2. "SPEED ENFORCEMENT" The Customer and Redflex agree that should legislation or local ordinance be enacted to enable the photo enforcement of speed within the city, and the city requires this capability for public safety then the city will have the option to extend this contract to include additional terms for photo enforcement of speed within the city. 11.3. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER. Nothing in this Agreement shall create, or be deemed to create, a partnership, joint venture or the relationship of principal and agent or employer and employee between the parties. The relationship between the parties shall be that of independent contractors, and nothing contained in this Agreement shall create the relationship of principal and agent or otherwise permit either party to incur any debts or liabilities or obligations on behalf of the other party (except as specifically provided herein). 15 11.4. AUDIT RIGHTS. Each of parties hereto shall have the right to audit to audit the books and records of the other party hereto (the "Audited Party") solely for the purpose of verifying the payments, if any, payable pursuant to this Agreement. Any such audit shall be conducted upon not less than forty-eight (48) hours' prior notice to the Audited Party, at mutually convenient times and during the Audited Party's normal business hours. Except as otherwise provided in this Agreement, the cost of any such audit shall be borne by the non-Audited Party. In the event any such audit establishes any underpayment of any payment payable by the Audited Party to the non-Audited Party pursuant to this Agreement, the Audited Party shall promptly pay the amount of the shortfall, and in the event that any such audit establishes that the Audited Party has underpaid any payment by more than twenty-five percent (25%) of the amount of actually owing, the cost of such audit shall be borne by the Audited Party. In the event any such audit establishes any overpayment by the Audited Party of any payment made pursuant to this Agreement, non-Audited Party shall promptly refund to the Audited Party the amount of the excess. 11.5. FORCE MAJEURE. Neither party will be liable to the other or be deemed to be in breach of this Agreement for any failure or delay in rendering performance arising out of causes beyond its reasonable control and without its fault or negligence. Such causes may include but are not limited to, acts of God or the public enemy, terrorism, significant fires, floods, earthquakes, epidemics, quarantine restrictions, strikes, freight embargoes, or Governmental Authorities approval delays which are not caused by any act or omission by Redflex, and unusually severe weather. The party whose performance is affected agrees to notify the other promptly of the existence and nature of any delay. 11.6. ENTIRE AGREEMENT. This Agreement represents the entire Agreement between the parties, and there are no other agreements (other than invoices and purchase orders), whether written or oral, which affect its terms. This Agreement may be amended only by a subsequent written agreement signed by both parties. 11.7. SEVERABILITY. If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or part, this Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision. 11.8. WAIVER. Any waiver by either party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof. 11.9. CONSTRUCTION Except as expressly otherwise provided in this Agreement, this Agreement shall be construed as having been fully and completely negotiated and neither the Agreement nor any provision thereof shall be construed more strictly against either party. 11.10. HEADINGS. The headings of the sections contained in this Agreement are included herein for reference purposes only, solely for the convenience of the parties hereto, and shall not in any way be deemed to affect the meaning, interpretation or applicability of this Agreement or any term, condition or provision hereof. 16 11.11. EXECUTION AND COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one instrument. Anyone of such counterparts shall be sufficient for the purpose of proving the existence and terms of this Agreement and no party shall be required to produce an original or all of such counterparts in making such proof. 11.12. COVENANT OF FURTHER ASSURANCES. All parties to this Agreement shall, upon request, perform any and all acts and execute and deliver any and all certificates, instruments and other documents that may be necessary or appropriate to carry out any of the terms, conditions and provisions hereof or to carry out the intent of this Agreement. 11.13. REMEDIES CUMULATIVE. Each and all of the several rights and remedies provided for in this Agreement shall be construed as being cumulative and no one of them shall be deemed to be exclusive of the others or of any right or remedy allowed by law or equity, and pursuit of anyone remedy shall not be deemed to be an election of such remedy, or a waiver of any other remedy. 11.14. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon all of the parties hereto and their respective executors, administrators, successors and permitted assigns. 11.15. COMPLIANCE WITH LAWS. Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law, and whenever there is a conflict between any term, condition or provision of this Agreement and any present or future statute, law, ordinance or regulation contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event the term, condition or provision of this Agreement affected shall be curtailed and limited only to the extent necessary to bring it within the requirement of the law, provided that such construction is consistent with the intent of the Parties as expressed in this Agreement. 11.16. NO THIRD PARTY BENEFIT. Nothing contained in this Agreement shall be deemed to confer any right or benefit on any Person who is not a party to this Agreement. 11.17. INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. The parties hereby agree and acknowledge that a breach of Sections 4.1 (License), 4.3 (Restricted Use) or 7 (Confidentiality) of this Agreement would result in severe and irreparable injury to the other party, which injury could not be adequately compensated by an award of money damages, and the parties therefore agree and acknowledge that they shall be entitled to injunctive relief in the event of any breach of any material term, condition or provision of this Agreement, or to enjoin or prevent such a breach, including without limitation an action for specific performance hereof. 11.18. APPLICABLE LAW. This Agreement shall be governed by and construed in all respects solely in accordance with the laws of the State of Texas and of the United States. 11.19. JURISDICTION AND VENUE. Any dispute arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction 17 and venue of the courts located in the County of Dallas, Texas, and both parties specifically agree to be bound by the jurisdiction and venue thereof. 11.20. MOST FAVORED NATION CLAUSE. If Contractor, at any time during this Contract, routinely enters into agreements with other governmental customers within the greater Dallas metropolitan area, and offers the same or substantially the same products/services offered to the City on a basis that provides terms and conditions (including but not limited to, prices, warranties, indemnification, terms relating to posting of a bond, etc.), that are, in the aggregate and when considered as a whole, more favorable than those collective terms and conditions provided to the City, Contractor shall notify the City in writing within ten (10) business days thereafter of that offering and this Contract shall be deemed to be automatically amended effective on the date of such written notice from Contractor, wherein Contractor shall provide the same terms and conditions to the City unless the City notifies Contractor in writing within 10 business days of Contractor's written notice that the City declines to accept such change(s), in which case such amendment shall be deemed null and void. The determination of whether this Article 11.20 should apply shall be subject to the reasonable discretion of Contractor. (The remainder of this page is left intentionally blank) 18 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first set forth above. "Customer" "Redflex" CITY OF University Park REDFLEX TRAFFIC SYSTEMS, INC., CITY MANAGER By: Name: Title: ATTEST: CITY SECRETARY APPROVED AS TO FORM: CITY ATTORNEY 19 EXHIBIT "A" Designated Intersection Approaches The contract is for the implementation of up to 20 intersections. Identification of enforced intersection will be based on mutual agreement between Redflex and the City as warranted by community safety and traffic needs. The following intersections are designated: 20 EXHIBIT "B" Construction and Installation Obligations Timeframe for Installation: Fixed Photo Red Light System Redflex will have each specified intersection installed and activated in phases in accordance with an implementation plan to be mutually agreed to by Redflex Traffic Systems and the Municipality. Redflex will use reasonable commercial efforts to install the system in accordance with the schedule set forth in the implementation plan that will be formalized upon project commencement. Redflex will use reasonable commercial efforts to install and activate the first four specified intersection within the first ninety (90) days subsequent to formal project kick- off. Any additional intersections will be added within thirty (30) days of receipt of a notice to proceed. The Municipality agrees that the estimated timeframe for installation and activation are subject to conditions beyond the control of Redflex and are not guaranteed. In order to provide the client with timely completion of the photo enforcement project Redflex Traffic Systems requires that the City assist with providing timely approval of City permit requests. The City acknowledges the impOltance of the safety program and undertakes that in order to keep the project on schedule the customer is to provide city engineers review of Redflex permit requests and all documentation within a two business days. Redflex will also review and correct if necessary any redlines with in two business days. Permits need to be received within five business days of first submittal in order to implement the program in a timely manner. 1. Redflex Obligations. Redflex shall do or cause to be done each of the following (in each case, unless otherwise stated below, at Redflex's sole expense): 1.1. Appoint the Redflex Project Manager and a project implementation team consisting of between one (1) and four (4) people to assist the Redflex Project Manager; 1.2. Request current "as-built" electronic engineering drawings for the Designated Intersection Approaches (the "Drawings") from the city traffic engineer, if available; 1.3. Develop and submit to the Customer for approval construction and installation specifications in reasonable detail for the Designated Intersection Approaches, including but not limited to specifications for all radar sensors, pavement loops, electrical connections and traffic controller connections, as required; and 1.4. Seek approval from the relevant Governmental Authorities having authority or jurisdiction over the construction and installation specifications for the Designated Intersection Approaches (collectively, the "Approvals"), which will include compliance with City permit applications. 1.5. Finalize the acquisition of the Approvals; 21 1.6. Submit to the Customer a public awareness strategy for the Customer's consideration and approval, which strategy shall include media and educational materials for the Customer's approval or amendment (the "Awareness Strategy"); 1. 7. Develop the Redlight Violation Criteria in consultation with the Customer; 1.8. Develop the Enforcement Documentation for approval by the Customer, which approval shall not be unreasonably withheld; 1.9. Complete the installation and testing of all necessary Equipment, including hardware and software, at the Designated Intersection Approaches (under the supervision of the Customer); 1.10. Cause an electrical sub-contractor to complete all reasonably necessary electrical work at the Designated Intersection Approaches, including but not limited to the installation of all related Equipment and other detection sensors, poles, cabling, telecommunications equipment and wiring, which work shall be performed in compliance with all applicable local, state and federal laws and regulations; 1.11. Install and test the functionality of the Designated Intersection Approaches with the Redflex System and establish fully operational Violation processing capability with the Redflex System; 1.12. Implement the use of the Redflex System at each of the Designated Intersection Approaches; 1.13. Deliver the Materials to the Customer; and 1.14. Issue Notice of Violation notices for Authorized Violations; 1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the Customer, including but not limited to the persons who Customer shall appoint as Authorized Officers and other persons involved in the administration of the Redlight Photo Enforcement Program, (ii) for at least sixteen (16) hours in the aggregate, (iii) regarding the operation of the Redflex System and the Redlight Photo Enforcement Program, which training shall include training with respect to the Redflex System and its operations, strategies for presenting Violations Data in administrative adjudication hearing proceedings and a review of the Enforcement Documentation; 1.16. Interact with administrative adjudication hearing personnel to address issues regarding the implementation of the Redflex System, the development of a subpoena processing timeline that will permit the offering of Violations Data in adjudication proceedings, and coordination between Redflex, the Customer and adjudication personnel; and 1.17. Redflex will work with the Customer to develop a comprehensive Public Awareness/Education Campaign that will be based on research and public polling to ensure tailored messaging for the community. Redflex will organize a press conference at the project's commencement and coordinate all logistics, including preparing a media packet which will include: a news release; an overview of the Customer's photo enforcement program; a project fact sheet; a project question and answer sheet; a photo enforcement "Facts & Myths" handout; a map showing photo enforcement intersections and thoroughfares; background on similar successful projects elsewhere; an explanation of photo enforcement technology; an explanation of how the program will be 22 administered; and a spokesperson contact list. The Police Department's Public Information Officer will be their primary point of contact, and will have final approval on all media materials 1.18. Notice of Violation processing and Notice of Violation re-issuance 1.19. Employ a collection agency to collect delinquent accounts. To offset the cost of collecting each delinquent account, Redflex will receive reimbursement for the cost of delinquent collection up to the amount of the late fee penalty of $25 associated with that account, for each account and associated late fee successfully collected. 2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of the following (in each case, unless otherwise stated below, at Customer's sole expense) : 2.1.1. Appoint the Police Project Manager; Provide an Administrative Hearing Officer to preside over Appeals Hearing for the City. 2.1.2. Assist Redflex in obtaining the Drawings from the relevant Governmental Authorities; 2.1.3. Notify Redflex of any specific requirements relating to the construction and installation of any Intersection Approaches or the implementation of the Redlight Photo Enforcement Program; 2.1.4. Provide assistance to Redflex in obtaining access to the records data of the Texas Department of Transportation in Redflex's capacity as an independent contractor to the Customer; and 2.1.5. Assist Redflex in seeking the Approvals 2.1.6. Provide reasonable access to the Customer's properties and facilities in order to permit Redflex to install and test the functionality of the Designated Intersection Approaches and the Redlight Photo Enforcement Program; 2.1.7. Provide reasonable access to the personnel of the Customer and reasonable information about the specific operational requirements of such personnel for the purposes of performing training; 2.1.8. Seek approval or amendment of Awareness Strategy, as described in Section 1.17 above, and provide written notice to Redflex with respect to the quantity of media and program materials (the "Materials") that the Customer will require in order to implement the Awareness Strategy during the period commencing on the date on which Redflex begins the installation of any of the Designated Intersection Approaches and ending one (1) month after the Installation Date; 2.1.9. Assist Redflex in developing the Redlight Violation Criteria; and 2.1.10. Seek approval of the Enforcement Documentation. 23 EXHIBIT "C" Maintenance 1. All repair and maintenance of Photo Red Light Enforcement systems and related equipment will be the sole responsibility of Redflex, including but not limited to maintaining the casings of the cameras included in the Redflex System and all other Equipment in reasonably clean and graffiti-free condition. 2. Redflex shall not open the Traffic Signal Controller Boxes without a representative of city Traffic Engineering present. 3. The provision of all necessary communication, broadband and telephone services to the Designated Intersection Approaches will be the sole responsibility of the Redflex 4. The provision of all necessary electrical services to the Designated Intersection Approaches will be the sole responsibility of Redflex. 5. In the event that images of a quality suitable for the Authorized Officer to identify Violations cannot be reasonably obtained without the use of flash units, Redflex shall provide and install such flash units. 6. The Redflex Project Manager (or a reasonable alternate) shall be available to the Police Project Manager each day, on a reasonable best efforts basis. 24 EXHIBIT "D" COMPENSA TION & PRICING Commencing on the expiration of the Warning Period for each Designated Intersection Approach, Customer shall be obligated to pay Redflex a fixed fee of $4,870 per month for each Designated Intersection Approach ("Fixed Fee") as full remuneration for performing all of the services contemplated in this Agreement. As a beta-testing and feasibility study, Redflex will provide a mobile photo red light system unit for a period of 90 days at no charge to the Customer; upon completion of feasibility study; Redflex and the Customer will have the option to extend this contract and negotiate terms for mobile photo enforcement. Cost Neutralitv Cost neutrality is assured to Customer. The maximum compensation that Customer shall be obligated to pay to Redflex each month is the Fixed Fee. Each month, Customer and Redflex shall compare the aggregate revenue received from all Notice of Violations ("Revenue") to the total amount invoiced by Redflex for the Fixed Fee ("Amount Invoiced") during the previous month ("Cost Neutrality Review"). If the Amount Invoiced exceeds the Revenue, then City shall only be obligated to pay the Revenue to Redflex and the difference between the Revenue and the Amount Invoiced for that month will carryover to the next month as a deficit ("Deficit Amount"). If, in the next following month, the Revenue exceeds the Amount Invoiced, Customer shall pay the Amount Invoiced plus all or any portion of the accumulated Deficit Amount to the extent that there is sufficient Revenue to pay all or any portion of the Deficit Amount. Upon contract expiration any such outstanding deficits will be forfeited by Redflex. BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS: 1. Redflex construction will be able to utilize existing conduit for installation where space is available. 2. The Customer agrees to pay Redflex within thirty (30) days after the invoice is received. A monthly late fee of 1.5% is payable for amounts remaining unpaid 60 days from date of invoice. 3. Each year, beginning with the second year of the Initial Term, the pricing will be adjusted by the Consumer Price Index (CPI) for the Dallas Metroplex as published by the U.S. Department of Labor. 25 Exhibit "E" Additional Rights and Obligations Redflex and the Customer shall respectively have the additional rights and obligations set forth below: 1. Redflex shall assist the Customer in public information and education efforts, including but not limited to the development of artwork for utility bill inserts, press releases and schedules for any public launch of the Redlight Photo Enforcement Program (actual print and production costs are the sole responsibility of the Customer). 2. Redflex shall be solely responsible for installing such Signage. The Customer shall be solely responsible for the fabrication of any signage, notices or other po stings required pursuant to any law, rule or regulation of any Governmental Authority ("Signage"), including but not limited to the Vehicle Code, and shall assist in determining the placement of such Signage. 3. The Redflex Project Manager and the Police Project Manager shall meet on a weekly basis during the period commencing as of the date of execution hereof and ending on the Installation Date, and on a monthly basis for the remainder of the Term, at such times and places as the Redflex Manager and the Customer Manager shall mutually agree. 4. The Customer shall not access the Redflex System or use the Redlight Photo Enforcement Program in any manner other than prescribe by law and which restricts or inhibits any other Person from using the Redflex System or the Redflex Photo Enforcement Program with respect to any Intersection Approaches constructed or maintained by Redflex for such Person, or which could damage, disable, impair or overburden the Redflex System or the Redflex Photo Enforcement Program, and the Customer shall not attempt to gain unauthorized access to (i) any account of any other Person, (ii) any computer systems or networks connected to the Redflex System, or (iii) any materials or information not intentionally made available by Redflex to the Customer by means of hacking, password mining or any other method whatsoever, nor shall the Customer cause any other Person to do any of the foregoing. 5. The Customer shall maintain the confidentiality of any username, password or other process or device for accessing the Redflex System or using the Redlight Photo Enforcement Program. 6. Each of Redflex and the Customer shall advise each other in writing with respect to any applicable rules or regulations governing the conduct of the other on or with respect to the property of such other party, including but not limited to rules and regulations relating to the safeguarding of confidential or proprietary information, and when so advised, each of Redflex and the Customer shall obey any and all such rules and regulations. 7. The Customer shall promptly reimburse Redflex for the cost of repairing or replacing any portion of the Redflex System, or any property or equipment related thereto, damaged directly or indirectly by the Customer, or any of its employees, contractors or agents. 26 Insurance 1. During the Term, Redflex shall procure and maintain and Redflex's sole cost and expense the following insurance coverage with respect to claims for injuries to persons or damages to property which may arise from or in connection with the performance of work or services pursuant to this Agreement by Redflex, and each of Red flex's subcontractors, agents, representatives and employees: 2. Commercial General Liability Insurance. Commercial General Liability Insurance with coverage of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury and property damage; 3. Commercial Automobile Liability Insurance. Commercial Automobile Liability Insurance with coverage of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury or property damage, including but not limited to coverage for all automobiles owned by Redflex, hired by Redflex, and owned by third parties; 4. Professional Liability (Errors and Omissions) Insurance. Redflex will use its commercial best efforts to procure and maintain Professional Liability (Errors and Omissions) Insurance with coverage of not less than One Million Dollars ($1,000,000) per occurrence and in the aggregate. 5. Workers' Compensation and Employer's Liability Insurance. Workers' Compensation Insurance with coverage of not less than the limits required by the Labor Code of the State of Texas, Employer's Liability Insurance with coverage of not less than One Million Dollars ($1,000,000) per occurrence. 6. With respect to the insurance described in the foregoing Section of this Exhibit "E", any deductibles or self-insured retentions must be declared to and approved by the Customer and any changes to such deductibles or self-insured retentions during the Term must be approved in advance in writing by the Customer. 7. With respect to the Commercial General Liability Insurance the following additional provisions shall apply: 8. The Customer Parties shall be covered as additional insureds with respect to any liability arising from any act or omission of any Redflex Parties on the premises upon which any such Redflex Parties may perform services pursuant to this Agreement, and such coverage shall contain no special limitations on the scope of protection afforded to such additional insureds. 9. The insurance coverage procured by Redflex and described above shall be the primary insurance with respect to the Customer in connection with this Agreement, and any insurance or self-insurance maintained by the Customer shall be in excess of, and not in contribution to, such insurance. 10. Any failure to comply with the reporting provisions of the various insurance policies described above shall not affect the coverage provided to the Customer, and such insurance policies shall state that such insurance coverage shall apply separately with respect to each additional insured against whom any claim is made or suit is brought, except with respect to the limits set forth in such insurance policies. 11. With respect to the insurance described in the foregoing Section of this Exhibit "E", each such insurance policy shall be endorsed to state that the coverage provided thereby shall not be cancelled except after thirty (30) calendar days' 27 prior written notice to the Customer. If any of the Redflex Parties are notified by any insurer that any insurance coverage will be cancelled, Redflex shall immediately provide written notice thereof to the Customer and shall take all necessary actions to correct such cancellation in coverage limits, and shall provide written notice to the Customer of the date and nature of such correction. If Redflex, for any reason, fails to maintain the insurance coverage required pursuant to this Agreement, such failure shall be deemed a material breach of this Agreement, and the Customer shall have the right, but not the obligation and exercisable in its sole discretion, to either (i) terminate this Agreement and seek damages from Redflex for such breach, or (ii) purchase such required insurance, and without further notice to Redflex, deduct from any amounts due to Redflex pursuant to this Agreement, any premium costs advance by the Customer for such insurance. If the premium costs advanced by the Customer for such insurance exceed any amounts due to Redflex pursuant to this Agreement, Redflex shall promptly remit such excess amount to the Customer upon receipt of written notice thereof. 12. Redflex shall provide certificates of insurance evidencing the insurance required pursuant to the terms of this Agreement, which certificates shall be executed by an authorized representative of the applicable insurer, and which certificates shall be delivered to the Customer prior to Redflex commencing any work pursuant to the terms of this Agreement. 28 Exhibit F FORM OF ACKNOWLEDGMENT AND CONSENT This Acknowledgement and Consent, dated as of , 2006, is entered into by and between the City of University Park, Texas (the "City") and Redflex Traffic Systems, Inc., ("Redflex"), with reference to the Agreement for Photo Red Light Enforcement Program, dated as of , by and between the City and Redflex (the "Agreement"). 1. Redflex has entered into a Credit Agreement, dated as of August 3, 2004 (the "Harris- Redflex Credit Agreement"), with Harris Trust and Savings Bank (the "Bank"), pursuant to which the Bank has provided certain working capital credit facilities to Redflex. Such credit facilities will provide Redflex the working capital that it needs to perform its obligations to the City under the Agreement. 2. Pursuant to the Harris-Redflex Credit Agreement, Redflex has granted Harris a security interest in all of Redflex's personal property as collateral for the payment and performance of Redflex's obligations to the Bank under the Harris-Redflex Credit Agreement. Such security interest applies to and covers all of Redflex's contract rights, including, without limitation, all of Redflex's rights and interests under the Agreement. 3. Redflex will not, by virtue of the Harris- Redflex Credit Agreement, be relieved of any liability or obligation under the Agreement, and the Bank has not assumed any liability or obligation of Redflex under the Agreement. 4. The City hereby acknowledges notice of, and consents to, Redflex's grant of such security interest in favor of the Bank in all of Redflex's rights and interests under the Agreement pursuant to the Harris-Redflex Credit Agreement. 5. The City further acknowledges and agrees that this Acknowledgement and Consent shall be binding upon the City and shall inure to the benefit of the successors and assigns of the Bank and to any replacement lender which refinances Redflex's obligations to the Bank under the Harris-Redflex Credit Agreement. IN WITNESS WHEREOF, the City and Redflex have caused this Acknowledgement and Consent to be executed by their respective duly authorized and elected officers as of the date first above written. The City of University Park, Texas: Redflex: By: Name: Title: RED FLEX TRAFFIC SYSTEMS, INC. By: Name: Title: 29 Exhibit "G" Redflex Traffic Systems USA Bid Proposal for Automated Traffic Signal Enforcement System 30 Exhibit "H" City of University Park's Proposal Number For Automated Traffic Signal Enforcement System 31 19 AGENDA MEMO (09/05/06 AGENDA) DATE: August 31,2006 TO: Mayor and City Council FROM: Nina Wilson City Secretary SUBJECT: DISCUSSION OF DA TE CHANGE FOR CITY COUNCIL MEETING As we will have two councilmembers absent on October 17th, I propose we move the city council meeting for that date to Tuesday, October 24 at 4:00 p.m. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 BOARD OF ADJUSTMENT MINUTES July 24, 2006 The Board of Adjustment of the City of University Park met on Monday, July 24, 2006 at 5:00 P.M. in the Council Chambers of City Hall, 3800 University Blvd. University Park, Texas. The following are minutes of that meeting. Commission Members Attending Staff Members Attending Lon Houseman, Chairman Steve Metzger William Hitze1berger, III Bob Clark Norma Coldwell Harry Persaud - Community Development Mgr. Mark Hardin - Plan Reviewer Rob Dillard City ASttomey Jennifer Deaver - Administrative Assistant Absent & Excused Roy Kull Present & Seated Mike Maberry Mr. Houseman opened the public hearing and introduced the board members and then read the charge of the Board of Adjustment. Mr. Houseman asked for a motion to approve the minutes from the April 17, 2006 Board of Adjustment meeting. Mr. Metzger made a motion to approve the minutes. With a second from Mr. Lake the motion was approved unanimously. Mr. Metzger then read the specifics of the first case. 1. B.O.A. 06-005 - James Shaw, representing the owners of the property situated at 3601 Marquette, requesting a variance to Section 21-100 (4) (c) ii, City of University Park Zoning Ordinance, as amended, to allow for a total of 20 feet for both side yards where 24% oflot width or 25.82 feet is required. The subject tract is zoned SF-2 zoning district classification in accordance with the Comprehensive Zoning Ordinance. Mr. Jim Shaw, representing the owner of the property situated at 3601 Marquette, came forward. He stated that he had been contracted by the property owner last fall, therefore prepared plans for the design of the structure according to the city's zoning ordinance. At that time the maximum setback was 20' and is now 10' from Marquette and Thackery. He stated that the ordinance changed and he wasn't aware of the changes having been out of town, therefore, his plans no longer complied due to these changes. He then urged the board to approve his variance. Mr. Dillard inquired of Mr. Shaw as to when he applied for the permit. Mr. Shaw stated that he did not formally apply for:the permit in November because, due to the property being occupied he could not drill to have a soil report completed. He did, however, speak to Mark about his plans. Mr. Dillard inquired when the ordinance went into effect. Mr. Houseman stated April 20, 2006. Mr. Metzger inquired of Mr. Shaw if had yet drilled for the soil test. Mr. Shaw stated that he would be drilling in the next week when the residents move out of the house. Mr. Hitzelberger stated that there was a builders meeting held in February and the change was then announced. He inquired if Mr. Shaw had attended that meeting. Mr. stated that he had not attended that meeting. Mr. Houseman inquired if there were any opposing parties that wished to speak. Ms. Cyndi Abbate, owner / resident of the property situated at 3616 Marquette came forward. She introduced herself and stated that since the ordinance had changed, she feels that the city does not want the large houses going up. She then stated that Mr. Shaw did not get his plan turned in to the city in time and that should not be acceptable considered a hardship. She likes living in a neighborhood that has yard space and she does not want to see this variance granted. She expressed concerns of drainage issues and then urged the board to deny the request as written. Ms. Peggy Mims, resident / owner of the property located at 3701 Marquette, came forward. She expressed concerns of the amount of traffic through the alleyways, drainage concerns, the daylight does not reach her garden until 11 :30 in the morning, noise from the air conditioner units, the amount of heat generated from the concrete of such large homes, and that she felt a 7000 sq. ft. house on a 70 ft. lot was entirely too much. She then urged the board to deny the vanance. Ms. Jenny James, resident / owner at 3625 Marquette came forward and spoke in opposition. She stated that some time ago a builder was putting up a spec house and there was tree in the way of the second level of that structure. The case was taken to the city council and it was approved. She then stated that the only reason a builder builds the house so large is that they are paid by the square foot. She then urged the board to deny the request. Ms. Lindy Stone, resident / owner of the property situated at 3600 Marquette, came forward. She stated that she was in opposition of the variance due to the diminutive yard size not being in character with the neighborhood and that the neighborhood should not have to pay for the mistake the builder made of not getting his plans turned in before the ordinance was changed. Mr. Mack Mims, resident / owner of the property situated at 3701 Marquette, came forward. He stated that he could not think of any way that Mr. Shaw's plans would benefit the neighborhood. He stated that if the variance was granted it would only set precedence for other builders. He ,. expressed concerns of very little rain causing water to rise to curb level in that neighborhood. He then urged the board to deny the variance. Ms. Ann Harrison, resident / owner of the property situated at 3620 Marquette, came forward to speak in opposition. She states that her understanding of the change in the ordinance was researched and addressed because of problems with flooding in the city. She stated that the neighborhood does not want to have zero lot lines and that the city's first concern should be to the existing homeowners. She then urged the board to deny the request. Mr. Houseman inquired ifthere was anyone else that wished to speak; none came forward, Mr. Houseman then closed the public hearing. Mr. Metzger inquired of Mr. Persaud to get with Bud Smallwood on the flooding issues. Mr. Persaud stated yes. Mr. Houseman explained that the City Council passes ordinances and the variances are passed by the Board of Adjustment only as a result of a property hardship. He then stated that he has yet to hear any mention of a property hardship and that the reason that this was a hardship was due to timing issues and that the board would not be authorized to grant the variance based on timing Issues. Mr. Clark agreed that there was no mention of a property hardship. Mr. Shaw refuted that there was in fact a hardship based pie shaped lot. Mr. Houseman addressed Mr. Shaw and reviewed that he bought the lot, delayed his submittal, the ordinance was then passed and the application came in too late, therefore, the board has no authority to grant a variance based on these facts. Mr. Metzger made a motion to deny the request as written. With a second from Mr. Hitzelberger; the motion was denied unanimously 5-0. There being no further business before the Board, Mr. Houseman adjourned the meeting. Approved by: Date: ~LMA l\l-- ~Zooh Lon Houseman, Chairman Board of Adjustment PLANNING AND ZONING COMMISSION UNIVERSITY PARK, TEXAS MINUTES July 17, 2006 The Planning and Zoning Commission of the City of University Park met on Monday, July l7, 2006 at 5:00 P.M. in the City Hall Council Chambers, 3800 University Blvd. University Park, Texas. The following are minutes ofthat meeting. Commission Members Attending Staff Members Attending Robert H. West - Chairman Randy Biddle Bill Foose Reed Shawver, III Doug Roach Harry Persaud - Community Dev. Mgr Rob Dillard - City Attorney Jennifer Deaver- Administrative Assistant Bud Smallwood- Director of Public Works Present & Seated Ed Freeman Absent and Excused Bea Humann Jerry Jordan Mr. West opened the public hearing and then read the specifics of the first case. PZ 06-004 - Hold a public hearing and consider a request by Winstead, Sechrest & Minick, representing Legacy Hillcrest Investments, LP, fora change of zoning from Multi family "MF-2", Parking "P" and Office "0-2" zoning district classification to Planned Development District and approval of a PD concept plan. The subject tract is approx. 2.0696 acres more or less, situated between Daniel and Haynie Avenues and West of Hillcrest Ave., and described as lots 5 thru l2, Block 3, University Park Addition, City of University Park. The said tract is zoned MF-2, P and 0-2 and owned by Legacy Hillcrest Investments, LP. Mr. Persaud gave a brief over view of the specifics via a power point presentation. Mr. West inquired if there was any favoring I opposing parties that wished to speak. Mr.Art Anderson representing Legacy Hillcrest Investments, LP came forward He briefed the audience and commission members on the history of the case, stating that there was a neighborhood meeting reviewing the site plan the proposed changes. He stated that the neighbors were in favor of the changes at the time and were not focused on the square footage but primarily on the adverse effects of the traffic. He stated that the traffic studies decided that there was not degradation in the level of service. He stated that after the April meeting of the Planning and Zoning Commission he sent Jeremy Windam of Jacobs Engineering, back for additional studies of the access at Haynie. He then stated 1 the leasable space would be 147,500 square feet, excluding hallways and elevators, etc., l75,000 square feet oflibrary, retail, and restaurant space. He reminded the commission that Danny Cummings had suggested a 25% reduction of square footage of restaurant space and that there was already a reduction of 63,000 square feet in the 2001 conceptual plan. Town houses were added at the request of the neighborhood and another change in the reduction of height and putting in a penthouse suite that would be setback. He stated that they wanted to make this a community based project. He stated that an advisory committee was made up of residents in the neighborhood to fashion the design standards. He expressed concerns of an increase in density and that the intersection was still at a LOS of a C. He then urged the commission to approve his request. Mr. West inquired if there were any opposing parties that wished to speak. Mr. Wayne Johnson, resident / owner of the property situated at 360l Haynie introduced himself and stated that the traffic study performed seems vague and that most cars would cut through at Haynie. He then stated that with the five to eight (MF) Multi Family units being included in the proposed plan, there would be an increase in the trips per day that were estimated in the traffic study. He stated that this plan is too large and then urged the commission to deny the planas requested. Mr. Jim Tubb, resident / owner of the property situated at 3407 Haynie, came forward. He stated that his property is located across the street from the parking lot of the bank building. He then stated that the dumpsters and the loading docks were moved due to the obvious traffic issues, and that the trips per day calculated in the traffic study allow very little time for crossing the street. He then expressed concerns of the size of this building and read parts of the letter from Mr. Huddleston and stated that the design was just a giant and uncharacteristic of the residential area. He then urged the commission to deny the request. Ms. Mary Neil, resident / owner of the property situated at 3421 Haynie, came forward. She introduced herself and stated that there was no need to again list the reasons as to why this plan should be denied but wanted to be able to turn to the city for health and protection. She expressed concerns of property values plummeting and that she can not depend on the city for this protection and she then urged the commission to deny the request. Mr. Anderson introduced Jeremy Windham of Jacobs Engineering. Mr. Windham reviewed the changed results of the traffic study preformed with the development being at2l7,000 square feet. Mr. Roach inquired if, with these changes, were the trips per day were increased by 6200 total trips per day. Mr. Windham stated yes. 2 Mr. Craig Melde, architect representing Legacy Hillcrest, LP, and resident / owner of 3415 University, came forward. He stated that the main building stands at applicable height with the penthouse level being a leasable space. Mr. Biddle inquired as to why the decorative columns were so tall. Mr. Melde stated that it was an architectural element. Mr. Melde stated that it could be looked into, adding that there would be two floors of office space, one floor of retail space and some multi-family use space in order to provide a buffer to the neighborhood. Mr. Foose inquired how many floors there were total. Mr. Melde stated three. Mr. West stated that the city does not recommend parallel parking because of the problems that would result from cars waiting in the street to pull in. Mr. Melde assured him that it could be worked out. Mr. Biddle inquired if the education uses listed were pertaining to the library. Mr. Melde stated yes. Mr. Roach expressed concerns of the traffic study predicting 6200 trips per day. Mr. Wilson explained that improvements would have to be inclusive oflooking at the previous square footage. He stated that the cuing was looked at on a peak hour and that the biggest bottle neck was at Daniel and Haynie and the conditions should improve with timing and with the change in square footage. Mr. Anderson stated that most people employed in this building would not be driving out to eat and that with the 8-5 people the traffic will work even better than what the study shows. A discussion ensued regarding the possibility of widening the road and creating a left turn lane on the east bound side of Haynie and a right yield for the east bound side of Daniel. Mr. West inquired ifthere was anyone else who wished to speak. When no one came forward he closed the public hearing. Mr. West suggested that someone make a motion to table the item for a future meeting until the square footage could be revised. 3 Mr. Roach stated that he would not like to see that happen as it has already come before the Planning and Zoning Commission four times, he then suggested approval with a limit on the amount of square footage and a limit to the number of spaces dedicated for each use. Mr. Shawver made a motion to deny the request. The motion was not seconded. Mr. Biddle made a motion to table the item until the August 2l st meeting of the Planning and Zoning Commission proposing a work shop to meet with the developer. The motion was not seconded. At this point Mr. Roach stated that he would not support any building larger than 135,000 sq. ft. Mr. Foose made a motion to approve the PD Concept Plan with a total of 135,000 sq. ft. gross floor area, excluding the 8 units of town homes, subject to the following conditions: (l) Height of the proposed building on the 0-2 site shall be limited to the height of the existing building (2) A maximum of22,000 square feet for restaurant /retail space and (3) Building height west of the common area shall not exceed 35 feet. Mr. Roach move to amend the motion as follows: (1) Parking to be provided at the rate of 1 :200 square feet for retail and restaurant, and 1 :300 square feet for office space and (2) with 19 staff conditions. Mr. Foose agreed to the changes made by Mr. Roach and further amended the original motion to allow for Restaurant/retail space not to exceed 25,000 square feet. Mr. Roach then seconded the motion as amended. The motion was approved 3-2. Mr. West then read the specifics of the second case. PZ 06-0 II - Hold a public hearing and consider a request by Frank Blanchard representing the property owner, for approval of a replat for Lot lA, Block B, University Annex, 2nd Installment, being an Addition ofthe City of University Park, Dallas County, Texas, and more commonly known as 3501 Asbury. The replat will subdivide the lot into two single family attached.lots located in Planned Development District PD-6 zoned for Single Family Attached housing development. A variance is not required for the approval of this replat. Mr. Persaud gave a brief over view of the specifics and confirmed that this replat met all of the city requirements. 4 Mr. West inquired if there was any favoring / opposing parties that wished to speak, none came forward. Mr. Foose made a motion to approve the replat, with a second from Mr. Shawver the motion was approved unanimously 5~0. Mr. West then read the specifics ofthe third case. PZ 06-0l2: Hold a public hearing and consider a request by Agnich Ventures LP, for approval of a site plan for a tract of land being part of Lot 2, Block C of IDLEWILD NO. 2 Addition and located at 4520 West Lovers lane. The subject tract is zoned Planned Development PD-2-R for uses permitted in the General Retail District. The site plan proposes to add approx. l110 sq. ft. to the existing building. Mr. Persaud gave a brief overview of the case. Mr. West inquired if there was any favoring / opposing parties that wished to speak. Mr. Taylor Armstrong, resident / owner of the property situated at 3801 Centenary, also representing Agnich Venture, LP. came forward. He stated that this building was originally an animal clinic with chain link kennels in the rear and the plan was to extend the building at Lovers Lane, closer to Chips. He stated that it is currently 1530 square feet with 485 square feet of second floor space and he proposes to add 1110 square feet to bring it to the line of the adjacent properties, in addition adding two parking spaces to the rear (alley) of the property. Currently no tenants are leasing this facility but the money involved in the project should definitely bring an upper end, high quality tenant. Construction would begin at the time of approval. He then urged the commission to approve the request as written. A discussion ensued regarding the parking spaces in the right of way Mr. West inquired ofMr. Persaud, the ratio for parking spaces required. Mr. Persaud stated that there must be one space for every 3,000 square foot of added space. Mr. Armstrong stated that with the addition of the square footage there will not be adequate room for additional parking and that it is common of most all of the other merchants to use the alleyway for employee parking. Mr. West inquired if there was any favoring / opposing parties that wished to speak. None came forward. Mr. West then closed the public hearing. 5 Mr. Dillard stated that even though other merchants are using the alley ways to park, the city has been making efforts to clean up those alley ways. Mr. Foose inquired if the plan could be cut back 10 feet by shaving off 300 square feet of the plan. Mr. Armstrong stated that he was not asking for anymore than the neighboring spaces. Mr. Robert Agnich, owner / applicant of the property in question, came forward and introduced himself. He referred to the power point presentation and stated that if the city did not want to allow the employee parking in the rear that was okay but that his thoughts were that the city would benefit from this more so than the tenants .Mr. stated that the deal was tight, and that if the dumpster is shared and could be moved in order to provide more parking spaces. Mr. West inquired if the city could provide staff direction. Mr. Persaud stated that there must be one parking space for every 300 square foot and the stepping the building back and using the rear for parking would be middle ground. Mr. Biddle made a motion to table the item to come back for the August 21 st meeting of the Planning and Zoning Commission with the site plan showing three spaces in the rear of the structure and a revision of shaving 110 square feet of the addition. Mr. Roach arnended the motion requiring that the approval be subject to a revised site plan showing three on-site parking spaces in the rear within the property line and a net increase of 900 square feet or less. He then seconded the motion. The motion was approved 5-0. Mr. West then read the specifics of the fourth case. PZ 06-013: Hold a public hearing and consider a request by Intercity Investments, Inc. for a zoning change on a tract of approx. 2.98 acres more or less including certain alleyway right of ways, from Multi family MF-2 to Planned Development District and approval of a PD concept ar1d detailed site plan to allow for multi family development. The subject tract include Lots 4113 Lovers Lane, 4112 and 4113 Hyer Street and 4102 Grassmere and being lots 9-1l and 18 -20, Block 1, Troth and Boswell Subdivision and lots 7-11 and 18-22, Block 2, Troth and Boswell Subdivision located in the City of University Park. Mr. Persaud gave a brief overview of the proposed project, via a power point presentation. He showed the site plan from all angles and a map of the notification area. Mr. Bill Blackburn, representing Intercity Investments, Inc. came forward and introduced 6 himself. He gave a run down of the history behind the existing building, specifically that it was constructed in 1940, owned and operated by family, and that there are 9l antiquated units each approximately 500 square feet in size. The proposed plan includes lOft ceilings, larger living space and below grade parking. He then elucidated that the relocation of utility meters has been approved by the utility companies. Mr. Matt Mooney of Corgan & Associates, architectural firm contracted for the proposed plan, came forward and introduced himself. He stated that currently there are 109 parking spaces to accommodate 91 units on the existing property; he proposes to have 212 parking spaces, 85% at below grade level, for 88 units, where 176 are required. He stated that the setback requirements would be met or exceeded and that the access for parking would be away from Grassmere and Lovers. He then stressed that the development is tasteful for the neighborhood and urged the commission to approve the request as written. Mr. West inquired ifthere were any opposing parties that wished to speak. Mr. Bryan Sargent, resident / owner of 4145 Hyer came forward. He stated that the traffic is significantly concentrated at Hyer and that he is pleases with all aspects of the proposed plan but would like to see the traffic issues better addressed. Mary Lehner, owner / resident of 4137-39 Grassmere came forward. She stated that she is very pleased with the plan but the turn around area at the end of the alley at Grassmere and expressed concerns of parking on Grassmere would be lost due to this development. Mr. Smallwood stated that emergency vehicles do not access the alleyways. Mr. John Gillett, Fire Marshall for the City of University Park came forward. He stated that in the event that there was a fire, it would be approached from the street. He then stated that the plans can still be worked on but there are minimum requirements that must be met. Mr. West then closed the public hearing. Mr. West stated that the existing building is old and therefore non-conforming. He then raised questions regarding the density. Mr. Mooney stated that MF-2 requires 1800 square feet of living space and should be a PD in order to make sense. He then explained that the property would have a grand entrance and be a beautiful addition to the area and the city. Mr. Foose inquired ifthese were condo units and how many were allowed. Mr. Persaud stated yes and added that the MF-2 and MF-3 allows 69 units total. Mr. Smallwood introduced Mr. Danny Cummings and invited him to share some of the findings of the traffic study preformed. 7 Mr. Cummings came forward. He stated that his findings do not reveal a great impact on traffic, West on Hyer with 39 trips per day at a.m. peak hours. Mr. Sargent suggested that the traffic study should have been preformed during football games and it show a substantial amount of traffic issues at Hyer. Mr. Mooney stated that those issues are being addressed and the underground parking should be effective in resolving the problem at Hyer. Mr. Shawver added that this development is attractive but it will add approximately 100 kids to the area and the traffic issued indeed needed to be addressed, specifically at Grassmere. Mr. Foose stated that with retail to the east and the school to the west the improvement would set precedence for other MF property owners to bring their units to code, He stated that the traffic issues definitely need attention. He then made. a motion to approve the request for a zoning change with the understanding that the ingress and egress at Grassmere would be addressed. With a second from Mr. Biddle the motion was approved 5-0. Mr. Biddle made a motion to approve the minutes of the May l5th meeting, with a second from Mr. Roach, the minutes were approved unanimously 5-0. There being no further business before the Commission, Mr. West adjourned the meeting. Approved by: :::f~# ~ Robert H. West, Chairman Planning & Zoning Commission ?h'f-hl Date / I 8 19 PARK ADVISORY BOARD MEETING MINUTES July 25, 2006 The Park Advisory Board of the City of University Park met on Tuesday, July 25, 2006 at 4:00pm at City Hall, 3800 University Blvd., University Park, Texas. The following are the minutes of that meeting. Committee Members Attending: William Pardoe - Chairman Jerry Grable - Council Liaison Julia Baltser Bruce Collins Liz Farley Mac Fuller Darrell Lane Carol Seay Jacky Spears Stan Tucker Alan Wasserman Absent & Excused: Jeff Turpin Staff Members Attending: Bob Livingston - City Manager Bud Smallwood - Public Works Director Bob Whaling - City Engineer Gerry Bradley - Parks Director Brent Jones - Urban Forester Amber Lively - Administrative Secretary Mr. Coy Talley of Talley Associates was also on hand to discuss development plans for Barbara Hitzelberger Park. Call to Order The meeting was called to order by Mr. Pardoe. Mr. Pardoe began by welcoming the new Park Board Members. With this, he asked that all Board Members introduce themselves and give a brief description of why they are on the Board. Approval of Minutes Mr. Pardoe asked for any comments on or changes to the May meeting minutes. There being no changes, Mrs. Spears moved to approve the minutes. The motion was seconded by Mrs. Baltser and approved unanimously by the board. Reports 3800 UNIVERSITY BOULEVARD TELEPHONE (214) 363-1644 UNIVERSITY PARK, TEXAS 75205 1. Germanv Park - Water Pump Station Director of Public Works Bud Smallwood attended the meeting to discuss with the Board about the relocation and renovation of the water pumping station at Germany Park and hopefully gain the Board's approval on the proposed location. He began by giving the Board some background information on the pump station and how it is necessary to the City's water supply. It was decided by the Council that the station should be renovated due to its age and the condition of the structure. It was suggested to the Council that the renovation project would also allow for the station to be moved therefore creating more open space for the park. Mr. Smallwood displayed an aerial picture of the park which detailed the proposed location for the new station along with two alternate locations within the park. There are advantages and disadvantages to all three locations. The proposed location is situated at the Southwest corner of the park. Board members were also shown a concept of what the new station could potentially look like. After giving his presentation to the Board about the plans for the station, Mr. Smallwood opened the floor to questions and concerns. The biggest concern that Board Members had was regarding the amount of noise that the station would produce. There was brief discussion among the Board regarding other issues such as security and emergency plans, and other potential locations within the park for the station. After the Board's discussion, all members were in agreement that the proposed location is the best area for the new pumping station. With this, Mr. Lane moved that the Board approve the proposed location for the movement of the Germany Park Pumping Station. The motion was seconded by Mr. Wasserman and approved unanimously by the Board. 2. Barbara Hitzelberqer Park Mr. Bradley began by giving the new Board members a brief background on the two park locations located at Lovers Lane and Hillcrest. Staff had been working with the firm Dunkin, Sims and Stoffels on a design concept for both locations. The City has since moved away from this firm and is currently working with Mr. Coy Talley of Talley Associates on a new design. The two park locations have also been named in honor of former Mayor Barbara Hitzelberger for her services to the City both past and present. Mr. Bradley explained that the park locations could allow for many features such as a wall, water features, park signage, seasonal planting, decorative lighting and hardscape. With this, Mr. Bradley introduced Mr. Talley who was in attendance at the meeting to try and gain a better understanding of what the Board is looking for in terms of design for the 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 two park locations. He sees the park as a gateway for the City and feels that it is a very visual location. Board members voiced many opinions of what they would like to see at the location. For the wall around the park, most members felt that the design should stick with "red brick" for the materials since this a reoccurring material used throughout the city in places such as City Hall and SMU. Almost all Board Members would like to see a water feature of some sort be used in the design. Other items that the Board felt might be nice were tree lighting, a seating area and some form of sculpture. Mrs. Baltser also brought up the idea of completing the project in a phase plan which would run over several years. Mrs. Farley felt that it may also be a good idea to include a low wall on the Hillcrest side so that the parks would be more desirable for parents with young children. After hearing the Board's comments, Mr. Talley will begin developing a concept plan for the Board's approval. 3. Open Discussion After all report items had been covered, Mr. Bradley opened the floor for any discussion or questions that the Board, especially new members, may have. Mrs. Baltser inquired about the status of the Caruth Park project. Mr. Bradley estimates that this could be completed as soon as late Fall. Mrs. Baltser also had questions about why recycling is not done within the pool facility, especially at the concession stand. Mr. Bradley will look into this to see if the concession vendor uses enough products for a recycling program to be beneficial. The only other question came from Mr. Wasserman who was curious about water restrictions and how they will affect irrigation in the parks. Mr. Bradley explained that Staff has already dropped the department's watering schedule back by twenty (20) percent. If a stricter water restriction is approved, the department would then do an evaluation on all plant materials to determine what is priority. Mr. Livingston also offered Board Members some information on any potential water restrictions. The only plan he foresees would be a voluntary schedule which would apply to homeowners between certain hours of the day only. Work in Progress Mr. Bradley included a brief outline of current projects being completed by the Parks Department. This information was included in the agenda packet mailed to Board members. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 Adjournment There being no further business of the Park Board, the meeting was adjourned by Mr. Pardoe. Due to the changing of several Council meeting dates, some Park Board meetings have been rescheduled. Board Members were given a revised schedule of the meetings between August and December 2006. With this, the next scheduled meeting of the Park Board will be held on Tuesday, August 15, 2006. lJo~~ William Pardoe, Chairman Park Advisory Board ~.lb.~ Date 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 19 PARK ADVISORY BOARD MEETING MINUTES August 15, 2006 The Park Advisory Board of the City of University Park met on Tuesday, August 15, 2006 at 4:00pm at City Hall, 3800 University Blvd., University Park, Texas. The following are the minutes of that meeting. Committee Members Attending: William Pardoe - Chairman Jerry Grable - Council Liaison Julia Baltser Mac Fuller Darrell Lane Stan Tucker Jeff Turpin Alan Wasserman Staff Members Attending: Gerry Bradley - Parks Director Amber Lively - Administrative Secretary Absent & Excused: Bruce Collins Liz Farley Carol Seay Jacky Spears Mr. Gary Olp of GGO Architects was also on hand to discuss the master plan for Coffee Park. Call to Order The meeting was called to order by Mr. Pardoe. Approval of Minutes Mr. Pardoe asked for any comments on or changes to the July meeting minutes. There being no changes, Mrs. Baltser moved to approve the minutes. The motion was seconded by Mr. Wasserman and approved unanimously by the Board. Reports 1. Caruth Park Landscape Plan The Caruth Park landscape plan and several concept drawings have been brought to the Board during previous meetings. Mr. Bradley began by giving all new members background information on the project and the existing conditions. The main focus of the project was to create a botanical bed and surrounding landscape system to be located at the south east corner of the park that will serve as an entrance. The name of the park itself will be installed in the same fashion as those at Curtis and Williams Parks with raised metal lettering attached to the stone wall of the large botanical bed. The surrounding landscape will provide more plant material and color for the park and will also serve as a screen between neighboring residents and the park. In addition to the botanical bed, the concept drawing also outlines the bus stop which is located near the potential sight. The plan is to incorporate the same stonework and provide a bench for this area. In addition to the south east corner entryway, Mr. Bradley also displayed a potential plan to introduce some new botanical beds to be constructed towards the center of the park area. These beds would create a sort of corridor for patrons that are accessing the soccer fields. After seeing the concept plans for the park, there was brief discussion among the Board members. Some of the items discussed were the types of plant materials to be used, lighting for the park sign, and concerns about the location serving as a hangout for kids. Mr. Bradley responded by saying that the plant material has notbeen decided on at this point and there will be lighting for the sign as well as tree lighting. As far as the area being a hang out for kids or others, it has not been a problem in any other location, so it is not anticipated to be a problem at Caruth. With this, Mr. Pardoe asked if the Board was comfortable giving Staff the go ahead to begin the project. All Board members present were in agreement that the project should be started as soon as possible. Staff anticipates the project will begin as early as October. 2. Coffee Park Master Plan Mr. Gary Olp of GGO Architects was on hand to go over the concept drawing for the Coffee Park Master Plan. Before Mr. Olp began his presentation, Mr. Bradley gave members a brief overview of the existing conditions at the park. Currently there is overgrowth that needs to be removed, there is a lack of color beds, and there is very little parking. The concept drawing outlined by Mr. Olp offers the chance for a new play area for smaller children, new botanical plantings, park signage, fencing along Hillcrest and parking along Villanova. Due to the construction of the Northwest Highway wall, there may also be additional land that will be added to the park. With the addition of new land, a walking trail could also be added to the location. In addition to the re-development of Coffee Park, there is also potential for some landscaping of Artha Garza Park which is directly across Hillcrest and currently serves as the City's "Tree Farm". Members were shown an example of a potential entry way sign that could be positioned at Artha Garza and would serve as a gateway into the City. Staff was directed to proceed with developing a brick entrance bed at both intersections of Hillcrest and Northwest Highway. The brick portal structure with botanical plantings will act as an entryway into the community. " Staff would like to gain some feedback from the Board on what they feel should be done with Coffee Park as well as Artha Garza. Mr. Pardoe emphasized that Coffee is an under-utilized park location that has the potential to be developed into something better. Mrs. Baltser recommended that fitness stations in addition to the walking trail might be something to look into. Several Board members also raised the idea of removing the baseball diamond from the park all together. Mr. Bradley informed members that the removal of the ball field from the YMCA's schedule would meet with a strong opposition from the YMCA as well as other park patrons. (Staff has attached the current schedule of the YMCA's usage of the Park for the Boards review). The Board's approval is needed for Mr. Dip to continue on with further concept drawings. Staff was directed to continue with the concept plans and determine how much additional property was to be gained with the installation of the Northwest Highway Wall. Work in Progress Mr. Bradley included a brief outline of current projects being completed by the Parks Department. This information was included in the agenda packet mailed to Board members. Adjournment There being no further business of the Park Board, the meeting was adjourned by Mr. Pardoe. The next meeting of the Park Board is scheduled for Tuesday, September 12th. l"-~,,;,, ~.J).e, 8.74.c6 William Pardoe, Chairman Date Park Advisory Board YMCA Field Usage 2006-07 Fields FALL FOOTBALL I SOCCER 2006 Dates Times Caruth Park August 25th-November 18th MON-FRI 4:30 -DARK SATURDAYS 9AM-2:00 PM SUNDAY 2:00 PM -7:00 PM Caruth August 25th-November 18th MON-FRI 4:30 -DARK (Area next to the Tennis Courts) SATURDAYS 9AM-2:00 PM SUNDAY 2:00 PM -7:00 PM Williams Park August 25th-November 18th MON-FRI 4:30 -DARK SATURDAYS 9AM-2:00 PM SUNDAY 2:00 PM -7:00 PM Goar Park (North & South Fields) August 25th-November 18th MON-FRI 4:30 -DARK SATURDAYS 9AM-2:00 PM SUNDAY 2:00 PM -7:00 PM Germany Park August 25th-November 18th MON-FRI 4:30 -DARK SA TURDA YS 9AM-2:00 PM SUNDAY 2:00 PM -7:00 PM Coffee August 25th-November 18th MON-FRI 4:30 -DARK SA TURDA YS 9AM-2:00 PM SUNDAY 2:00 PM -7:00 PM PAGE 1 OF 3 Spring Soccer -2007 Fields Dates Times Caruth Park February 5th -April 28th MON-FRI 4:30 -DARK SATURDAYS 9AM-2:00 PM . . SUNDAY 2:00 PM -7:00 PM Caruth MON-FRI 4:30 -DARK (Area next to the Tennis Courts) February 5th -April 28th SATURDAYS 9AM-2:00 PM SUNDAY 2:00 PM -7:00 PM Williams Park February 5th -April 28th MON-FRI 4:30 -DARK SATURDAYS 9AM-2:00 PM SUNDAY 2:00 PM -7:00 PM Goar Park (North & South Fields) February 5th -April 28th MON-FRI 4:30 -DARK SATURDAYS 9AM-2:00 PM SUNDAY 2:00 PM -7:00 PM PAGE 2 OF 3 Baseball / SoftbalU T-Ball- 2007 Fields Dates Times Caruth Park April 9th - June 30th MON-FRI 4:30 -DARK SATURDAYS 8:30AM-4:00 PM SUNDAY 2:00 PM -7:00 PM Coffee Park MON-FRI 4:30 -DARK SATURDAYS 8:30AM-4:00 April 9th - June 30th PM - -- - ..-- - - - - - - -- - - - _S.1J~Q..AY 2:00 PM -7:0Q..EM-. Curtis Park April 9th - June 30th MON-FRI 4:30 -DARK SATURDAYS 8:30AM-4:00 PM SUNDAY 2:00 PM -7:00 PM PAGE 3 OF 3