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HomeMy WebLinkAboutMarch 28, 2000 Agenda AGENDA CITY OF DENTON CITY COUNCIL March 28, 2000 Agendaltem After determining that a quorum is present and convening in an Open Meeting, the City Council will convene in a Closed Meeting of the City of Denton City Council on Tuesday, March 28, 2000 at 5:15 p.m. in the City of Denton Council Work Session Room, Denton City Hall, at 215 East McKinney, Denton, Texas to consider specific items when these items are listed below under the Closed Meeting section of this agenda. When items for consideration are not listed under the Closed Meeting section of the agenda, the City Council will not conduct a Closed Meeting at 5:15 p.m. and will convene at the time listed below for its regular or special called meeting. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Government Code, as amended, as set forth below. 1. Closed Meeting A. Consultation with Attorney - Under TEX. GOV'T. Code Section 551.071. Discuss and receive briefing from attorneys on status and possible settlement of litigation styled Municipal Administrative Services, Inc. v. City of Denton, Cause No. 99-50263-367 currently pending in the 367th District Court of Denton County, Texas. ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEX. GOV'T. CODE CH. 551. THE CITY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOV'T. CODE SEC. 551.001, ET SEQ. (TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION SECTIONS 551.071-551.086 OF THE OPEN MEETINGS ACT. Work Session of the City of Denton City Council on Tuesday, March 28, 2000 at 6:00 p.m. in the Council Work Session Room in City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: NOTE: A Work Session is used to explore matters of interest to one or more City Council Members or the City Manager for the purpose of giving staff direction into whether or not such matters should be placed on a future regular or special meeting of the Council for citizen input, City Council deliberation and formal City action. At a Work Session, the City Council generally receives informal and preliminary reports and information from City staff, officials, members of City committees, and the individual or organization proposing council action, if invited by City Council or City Manager to participate in the session. Participation by individuals and members of organizations invited to speak ceases when the Mayor announces the session is being closed to public input. Although Work Sessions are public meetings, and citizens have a legal right to attend, they are not public hearings, so citizens are not allowed to participate in the session unless invited to do so by the Mayor. Any citizen may supply to the City Council, prior to the beginning of the session, a written report regarding the citizen's opinion on the matter being explored. Should the Council direct the matter be placed on a regular meeting agenda, the staff City of Denton City Council Agenda March 28, 2000 Page 2 will generally prepare a final report defining the proposed action, which will be made available to all citizens prior to the regular meeting at which citizen input is sought. The purpose of this procedure is to allow citizens attending the regular meeting the opportunity to hear the views of their fellow citizens without having to attend two meetings. 1. Receive a report and give staff direction regarding the 2000-01 budget calendar. 2. Receive a report and hold a discussion regarding the results of the budget priority questionnaire with City Council. 3. Receive a report, hold a discussion, and give staff direction regarding guidelines for linking to other websites and allowing other websites to link to City sites. 4. Receive a preliminary assessment, hold a discussion, and give direction to staff with regard to the possible annexation of a *247 acre tract of land located west of Sherman Drive north of Loop 288. 5. Receive a report, and hold a discussion regarding the Workforce Diversity Plan Update. 6. Receive a report, hold a discussion, and give staff direction regarding the lease between the U.S. Army Corps of Engineers and the City of Denton for management of the 2,645- acre Lewisville Lake Wildlife Restoration Project. 7. Hold a discussion and provide staff direction concerning a sales tax exemption sought by the Robson Development that would exempt state tax on all the equipment purchased for the wastewater treatment plant construction. 8. Receive a report, hold a discussion, and give staff direction regarding wireless telecommunications facilities regulations. Following the completion of the Work Session, the Council will convene into a Special Called Session to consider the following: Consider adoption of an ordinance authorizing the City Manager to execute a First Amendment to the Contract for Professional Legal Services between Wolfe, Clark, Henderson & Tidwell and the City of Denton; authorizing the expenditure of funds therefore; and providing an effective date. Consider approval of a resolution authorizing the City Manager to sign and transmit the update form to the Public Utility Commission of Texas calculating the access line fees that the City of Denton is authorized to charge certificated telecommunication providers for use of its rights-of-way to be paid the City under House Bill 1777 and allocated to each category of access line within the City of Denton; and providing an effective date. City of Denton City Council Agenda March 28, 2000 Page 3 CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Denton, Texas, on the day of ,2000 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL WORK SESSION ROOM IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800- RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 28, 2000 Finance Kathy DuBose, Assistant City Manager of Finance SUBJECT Receive a report and give staff direction regarding the 2000-01 budget calendar. BACKGROUND Please find attached the 2000-01 budget calendar. Please note several key dates. Friday, August 4, 2000, has been targeted for the City Council budget workshop. This will be an all-day meeting beginning at 9:00 a.m. Also, please note that Friday, August 11, 2000, has been reserved as an extra day for City Council budget deliberations if needed. Hopefully, the extra meeting will not be necessary. However, staff wanted to give City Council advance notice just in case. Final adoption of the 2000-02 budget is scheduled for September 5, 2000. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Not applicable. FISCAL INFORMATION Not applicable. EXHIBITS .(If applicable) 2000-01 Budget Calendar Resp~ullyj~~ortune~SUlhrnitted: Director of Management and Budget Feb. 11 Feb. 18 March 21 March 28 May 23 May 30 June 13 June 14 June 28 July 28 Aug. 4 Aug. ll Aug. 15 Aug. 22 Aug. 29 Friday Thursday Tuesday Tuesday Tuesday Tuesday Tuesday Wednesday Wednesday Friday Friday Friday Tuesday Tuesday 5th Tuesday 2000 - 2001 Budget Calendar Priority questionnaire distributed to City Council. City Council returns priority questionnaire. Budget Kick-off (Operating and CIP) Review and discussion of Budget Priority Questionnaire results with City Council. Council briefing on the budget process and discussion of the budget calendar. Discussion and distribution of supplemental budget priority questionnaire to City Council. City Council retums supplemental budget priority questionnaire. Review and discussion of supplemental budget priority questionnaire. Capital Improvement Program presented to the Planning and Zoning Commission. Public Hearing for the Capital Improvement Program. Planning and Zoning Commission formulate recommendation to deliver to City Council. Proposed budget and CIP submitted to City Council and placed on file with the City Secretary. Submission of appraisal roll. Submission of ad valorem effective and rollback tax rates to City Council. Submission of certified ad valorem collection rate to City Council. City Council budget workshop. City Council budget workshop. (tentative) City Council Budget Study. Vote to consider a proposal for a tax increase prior to publishing notice of hearing. (Final date) City Council budget study. Public heating on tax increase. Public hearing on budget. Final City Council budget study. 2000-2001 Budget Calendar Sept. 5 Tuesday City Council adopts Annual Program of Services. City Council adopts 1 st year of Capital Improvement Program budget. City Council approves tax rates. Approval of 2000 tax roll. AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 28, 2000 Finance Kathy DuBose, Assistant City Manager of Finance Aoenda NO-: t D- O/f .... Agendaltem Date . t / SUBJECT Receive a report and hold a discussion regarding the results of the budget priority questionnaire with City Council. BACKGROUND Please find attached the results of the 2000-01 budget priority questionnaire. Responses from each questionnaire have been tabulated and ranked in two formats. The first format ranks responses from highest to lowest by response priority, while the second format ranks responses from highest to lowest by effort rating. You will also find attached a summary of your responses regarding specific policy issues. By referencing the scale at the top of each page, the effort rating indicates the average level of effort the City Council would like in regards to a specific service area. The priority of response indicates a priority rank of 1 through 7 (l=low, 7=high) for each service area. For example, suppose the effort rating for litter programs was a 4 (continue current effort), and priority of response was a 7 (high); this combination would indicate that Council was satisfied with the City's current effort in litter programs although it was establishing a high priority for this service area. PR/OR ACTION/REVIEW (Council, Boards, Commissions) Not applicable. FISCAL INFORMATION Not applicable. EXHIBITS .(If applicable) Budget priority questionnaire results. Respectfully subn~tted:~._ Director of Management and Budget RESULTS OF THE CITY COUNCIL 2000-01 BUDGET PRIORITY QUESTIONNAIRE No Opinion Eliminate Current Effort 1.00 Substantially Reduce Current Effort 2.00 Reduce Current Effort 3.00 Continue Current Effort 4.00 !Increase Current Effort 5.00 Substantially Increase Current Effort 6.00 Initiate New Effort 7.00 RANKED BY PRIORITY OF RESPONSE Street Maintenance/Repair 5.29 6.29 Street Construction/Rebuilding 5.29 6.29 Crime Investigation 4.14 6.29 Police Patrol 4.00 6.29 Drug Abuse/Enforcement Programs 4.00 6.29 ILibrary Expansion 4.71 5.86 Traffic Signalization/Engineering 4.86 5.57 City Beautification (Parks, Facilities ,Medians) 4.71 5.57 Infill Policy Development 4.71 5.57 Code Enforcement - Demolition of Substandard Bldg. 4.57 5.57 Park Maintenance (Athletic Fields, Medians, Mowing) 4.57 5.57 Workforce Diversity 4.57 5.57 Water Storage/Reserves 4.29 5.57 Municipal Court 4.14 5.57 4.86 5.29 New Parks/Park Expansion (in Neighborhood, Community) 4.43 5.29 RESULTS OF THE CITY COUNCIL 2000-O1 BUDGET PRIORITY QUESTIONNAIRE No Opinion Eliminate Current Effort 1.00 Substantially Reduce Current Effort 2.00 Reduce Current Effort 3.00 Continue Current Effort 4.00 Increase Current Effort 5.00 Substantially Increase Current Effort 6.00 Initiate New Effort 7.00 RANKED BY PRIORITY OF RESPONSE Library Programs (in General) 4.43 5.29 Library Youth/Children's Programs 4.43 5.29 TrTrEfforts 4.43 5.00 Recruitment 4.14 5.00 eatment Plant 4.00 5.00 ces 3.86 5.00 Info/Data Processing Services 4.29 4.71 Senior Citizen Programs 4.14 4.71 Library Audio/Visual Services 4.14 4.71 Economic Development - Development Facilitation 4.14 4.71 Develop Univ. Relations In Regards to Cohesive Community Policies 4.00 4.71 Development Review Process 3.86 4.71 Building Inspection 3.86 4.71 Historic District Preservation 3.86 4.71 Telecommunications System 3.86 4.71 Economic Development - Utility Incentive Lines 3.71 4.71 RESULTS OF THE CITY COUNCIL 2000-01 BUDGET PRIORITY QUESTIONNAIRE No Opinion Eliminate Current Effort 1,00 Substantially Reduce Current Effort 2.00 Reduce Current Effort 3.00 Continue Current Effort 4.00 Increase Current Effort 5.00 Substantially Increase Current Effort 6.00 Initiate New Effort 7.00 RANKED BY PRIORITY OF RESPONSE Civic Center Maintenance 4.29 4.43 Employee Training/Development 4.14 4.43 Animal Control 4.00 4.43 Long Range Comprehensive Planning 4.00 4.43 Risk Management 4,29 4.14 New Athletic Programs 4.00 4.14 Auto Theft Prevention Programs 3.86 4.14 Code Enforcement - Sign Violations 3.71 3.86 RESULTS OF THE CITY COUNCIL 2000-01 BUDGET PRIORITY QUESTIONNAIRE No Opinion Eliminate Current Effort 1.00 Substantially Reduce Current Effort 2.00 Reduce Current Effort 3.00 Continue Current Effort 4.00 Increase Current Effort 5.00 Substantially Increase Current Effort 6.00 Initiate New Effort 7.00 RANKED BY EFFORT RATING Street Maintenance/Repair 5.29 6.29 Street Construction/Rebuilding 5.29 6.29 Contributions to Human Service Agencies 4.86 5.71 Traffic Signalization/Engineering 4.86 5.57 Public Transportation (SPAN, etc.) 4.86 5.43 Airport Marketing 4.86 5.29 Col_~_~. Enforcement - Demolition of Substandard Bldg. 4.57 5.57 ~ Diversity ~ 4.57 5.57 IGreenbelt System Plann'mg/Development 4.57 5.43 Economic Development - Business Retention 4.57 5.14 Fire Prevention 4.29 6.00 Emergency Medical (Ambulance) 4.29 6.00 Storm Drainage Improvements 4.29 6.00 RESULTS OF THE CITY COUNCIL 2000-01 BUDGET PRIORITY QUESTIONNAIRE No Opinion Eliminate Current Effort 1.00 Substantially Reduce Current Effort 2.00 Reduce Current Effort 3.00 Continue Current Effort 4.00 Increase Current Effort 5.00 Substantially Increase Current Effort 6.00 Initiate New Effort 7.00 RANKED BY EFFORT RATING Water Storage/Reserves 4.29 5.57 Children Oriented Safety Programs 4.29 5.43 Eco. Dev. - Dev. DISD Relations in Regards to Cohesive Comm. Policies 4.29 5.14 Library Reference Services 4.29 4.86 Economic Dev. - Incentives for Dev. (Tax Abatement, etc.) 4.29 4.86 Info/Data Processing Services 4.29 4.71 Eco. Dev. - Dev. Workforce and Training Partnership w/Univ, NCTC, & DISD 4.29 4.57 Eco. Dev. - City Marketing Efforts (Brand Image, Commercial, International) 4.29 4.57 Civic Center Maintenance 4.29 4.43 Risk Management 4.29 4.14 Police Patrol 4.00 6.29 Drug Abuse/Enforcement Programs 4.00 6.29 Emergency Preparedness (Management) 4.00 5.43 Environmental Health (Inspections, etc.) 4.00 5.43 Electric Service 4.00 5.43 Wastewater Treatment Plant 4.00 5.00 Develop Univ. Relations In Regards to Cohesive Community Policies 4.00 4.71 New Athletic Fields 4.00 4,57 RESULTS OF THE CITY COUNCIL 2000-01 BUDGET PRIORITY QUESTIONNAIRE No Opinion Eliminate Current Effort 1.00 Substantially Reduce Current Effort 2.00 Reduce Current Effort 3.00 Continue Current Effort 4.00 Increase Current Effort 5.00 Substantially Increase Current Effort 6,00 Initiate New Effort 7.00 RANKED BY EFFORT RATING Animal Control 4.00 4.43 Long Range Comprehensive Planning 4.00 4.43 New Athletic Programs 4.00 4.14 Below are specific actions or direction given to staff by individual Council Members for development of the 2000-01 annual budget. Economic Development efforts should be directed to the Airport. Extension of Scott to Newton. Budget money to proactively purchase environmentally sensitive or right of way purchases deemed important for public preservation. Need to put additional monies into maintaining our roads. Also need to look at budgeting money for construction of new roads. We need to substantially increase assistance, fast tracking programs, infill incentives, targeting industries (and developers) to encourage particular development in particular areas of the city - once the regulatory schemes have stabilized, to aggressively reverse negative P.R. or grand image of being unfriendly to business, etc.. We do not need to have speed trap mills operating on 1-35 in the middle of Denton: especially on or near race days where the largest number of tourists we ever see come to Denton. Would like to see the city go out and form neighborhood groups where there are none and strengthen and support existing neighborhood groups. Land conservation strategies. Swimming pool at Fred Moore Park. We should prioritize CIP funding projects. Construction of infrastructure prior to development. Tennis court at MLK. Print the "Golden Rule" at each councilmembers' seat and keep muzzles handy in case of personal, derogatory attacks. Bridge on Rails to Trails. Continue with the Raise the Bar campaign and put more money into areas suggested by citizens. Also get rid of substandard buildings and look at screening (fences, etc.) city's service center. The service center is an eye sore along Willis street. Preparation for Utilities divestiture is critical. City needs to continue to make sure our workforce is diverse. Try to recruit minorities for all positions, especially fire and police. Add another sweeper. More minorities working for the city and more contracts. Resurface streets - Mill, Morse, Bradshaw, Bridget, Mayhill, Carpenter, Woods, Sycamore, Crawford, Below are specific actions or direction given to staff by individual Council Members for development of the 2000-01 annual budget. Kerley, Duncan, Smith, Cook, Allen Wye, W. Prairie and E. Oak. We need to look at where we can locate more athletic fields, especially on the south side of the city. (Soccer esp.) Need to move forward with improvements to the Civic Center. Daycare center for children from Iow income families. Continue to pursue city wide recycling. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 28, 2000 Fiscal & Municipal Services Technology Services Kathy DuBose, 349-8228~-~ Questions concerning this item may be directed to Alex Pettit at 349-8595. SUBJECT: Receive a report, hold a discussion, and give staff direction regarding guidelines for linking to other websites and allowing other websites to link to City sites. BACKGROUND: It is the practice of the City not to include links to externally maintained websites on any of its internally maintained websites and web pages. EXHIBITS: 1. Memorandum Respectfully submitted: Director of Technology Services CITY OF DENTON, TEXAS MEMORANDUM TO: FROM: DATE: SUBJECT: City Council Distribution List 1 Alex Pettit Director of Technology Services March 28, 2000 Guidelines for linking'to other websites and allowing other websites to link to City sites. It is the practice of the City not to include links to externally maintained websites on any of its internally maintained websites and web pages. Because it is impossible to maintain editorial control over sites not administered/created/maintained by the City of Denton, our practice is to not allow links either to or from these sites. While at any given time a site may contain relevant information and be professional in appearance and content, web pages are inherently volatile and can change at any time. Exceptions to this policy include: 1. Websites maintained by the Unites States Government 2. Websites maintained by the State of Texas 3. Websites containing software needed to view content (RealAudio, Adobe Acrobat) Departments with their own websites have and will continue to receive solicitations asking to exchange web page links. Such links may not be added without the approval of the City Manager. Finally, websites nor web pages owned/maintained/created by the City of Denton shall not contain credits or tag-lines identifying who authored the page. If there are any questions or concerns with this practice, please contact me at x8595. Thank you. cc: IS Core Managers "Dedicated to Quality Service" AGENDA INFORMATION SHEET Agenda No. Agenda Item AGENDA DATE: DEPARTMENT: ACM: March 28, 2000 Planning & Development ~Department David Hill, 349-8350 t0'~ ~'~. SUBJECT - Annexation Request Receive a preliminary assessment, hold a discussion, and give direction to staff with regard to the possible annexation of a +_247 acre tract of land located west of Sherman Drive north of Loop 288. BACKGROUND Jeff Crannell of Crannell Engineering and David Vanderlaan of Vanderlann and Associates have brought a proposal to develop an approximately 281 acre parcel that is currently undeveloped. The application, in the form of a pre-design at DRC, is to develop the property as follows: · 52.98 acre arena development consisting off · 10,000 seat indoor arena · two outdoor arenas · 1,000 stalls · 4-5 story hotel · 13.13 acres of commercial · 156.93 acres of single-family residential proposed for 104 lots · 57.97 acres of open space/greenbelt Currently only approximately 34 acres (500 foot strip along Sherman Drive) of the entire 281 acre site is located within the City of Denton. The subject property is within an area identified in the Denton Comprehensive Plan as a Neighborhood Centers Area. The development as proposed would not be consistent with the Comprehensive Plan and would greatly impact the development of the Sherman Drive corridor north of Loop 288. A portion of the property is also within an Environmentally Sensitive Area. The joint City / DISD project site proposed for a park, school, natatorium, stadium, and water park uses is located within close proximity to the subject property. In accordance with Section 34-35 of the City's Code of Ordinances, the City will "assess on a case by case basis the annexation of areas in the extraterritorial jurisdiction (ETJ) when significant developments are proposed, occurring, or likely to occur in the near future." In addition, Section 43.021 of the Local Government Code authorizes a home rule city to annex area adjacent to the City. This property is adjacent to the City, as a strip along Sherman Drive is within the current city limits. As this strip is a minimum of 1, 000 feet wide, the subject property can be annexed without including intervening parcels as it meets the minimum requirements set forth in the Local Government Code. FISCAL INFORMATION The developer will be required to make public improvements on this site at the time of final plat approval, including water and wastewater line extensions, drainage system improvements, the dedication of road right-of-way, access and public street improvements, including sidewalks, and public utility easements. Development will result in increased public revenues and public costs. Most public service entities are directly or indirectly affected by development. ATTACHMENTS 1. Location Map. 2. Site Plan. Respectfully submitted: Director of Planning and Development Arena Development ATTACHMENT 1 NORTH LOCATION MAP Scale: None ATTACHMENT 2 AGENDA INFORMATION SHEET AgendaDate. Ite~... AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 28, 2000 Human Resources Kathy DuBose ~ SUBJECT Receive a report and hold a discussion regarding the Workforce Diversity Plan Update. BACKGROUND Workforee Diversity has been a long-standing commitment of the City of Denton. In fact, our diverse employee population stands as a testament to the years of focused recruitment, training and retention efforts of the organization. Our mission is to create a diversified workforce that is reflective of the community at all levels of the organization, in every department, and, to promote diversity as an opportunity to celebrate and value differences. The City of Denton currently has a five-year Workforce Diversity Plan that was published in May of 1998. This plan was established after a two-year intensive study conducted by the City Council, city management, Human Resources staff and Dr. Richard Lewis. In the plan, established goals have been outlined for each department. This five-year plan was awarded runner up for the National Black Caucus of Local Elected Officials, City Cultural Diversity Award for populations of 25,000 to 100,000 by the National League of Cities in March of 1999. The overall diversity effort is spearheaded by the City Manager who works inter-mutually with the Director of Human Resources. The Director of Human Resources oversees and monitors the organization's strategic plans and accomplishments. Various employee, community and management task forces are developed to assist and support the overall diversity effort. The effort to diversify the organization remains strong and is a continuous process. Staff has prepared a summary of accomplishments for FY 98/99 and an update of diversity statistics for the organization as of January, 2000. PRIOR ACTION/REVIEW (Council, Boards, Commissions) The Workforce Diversity Plan Update published in May, 1998 was reviewed with the City Council on June 9, 1998. ReStfully su/bm~: AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: March 28, 2000 Fire Department Michael W. Jez, City Manager SUBJECT: Receive a report and hold discussion regarding the Work Force Diversity Plan update. BACKGROUND: As part of the report and discussion from Human Resources on the Work Force Diversity Plan update, Fire Department Staff would like to review their portion of the update and answer questions from Council. The update will show that the Fire Department still has not achieved its diversity goals; although we did hire a white female firefighter. In spite of strong efforts to hire minorities, including an off site Civil Service test in East Texas, the Fire Department has not been successful. Therefore, Staff will report their plan to form a Citizens' Task Force to specifically look at the Fire Department's selection process. At the City Manager's direction, the make up of this Citizens' Task Force will consist of three (3) African Americans and three (3) Hispanics. The Chair of the Task Force will be Davina Jones from the City's Human Resources Department. The Task Force will have two primary goals: Comprehensively review the Fire Department's new employee selection process - from recruiting to hiring. 2. Make specific recommendations to improve this selection process. R~/~ubmitted: l~oss Chadwick Fire Chief Attachments: Slides on Citizen Fire Department Selection Process Task Force Citizens' Fire Department Selection Process Task Force ~,Comprehensively review the Fire Depa~ment's new employee sel~ion process- from recruitment to hiring. TASK F~E ~ ~AL _: ~l~lake Recommendations Citizens' Fire Department Selection Process Task Force Agenda Item AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 28, 2000 Utility Administration Howard Martin, 349-8232 "~'~ SUBJECT : Receive a report, hold a discussion and give staff direction regarding approval of the lease between the U.S. Army Corps of Engineers ("Corps") and the City of Denton ("Denton") for management of the 2,645-acre Lewisville Lake Wildlife Restoration Project ("Lease"). BACKGROUND: As you recall, Section 1135 of the Water Resources Development Act of 1986 set aside fimds to restore habitat damaged or lost as a result of water reservoir construction. Before impoundment of Lewisville Lake in 1954, substantially more wetlands, bottomland hardwoods, and upland forests existed. Once the lake was modified in 1988 to raise the conservation pool, over 23,000 acres of land were inundated. Because of the many wetlands and associated bottomlands that were damaged or lost, the Corps, in conjunction with the City of Denton, sought and received Congressional funding to restore a portion of the lost habitat. The Corps and Denton developed a proposal that includes 2,645 acres of old fields, remnant riparian and bottomland hardwoods, lacustrine wetlands (wetlands related to the lake) and open water habitat located at the northern end of Lewisville Lake, north of US 380 on either side of the Greenbelt Corridor. The purpose of the project is to restore wetland and bottomland communities to benefit wildlife including migratory waterfowl, shorebirds, perching and migratory songbirds and predators such as Cooper's hawk, all of which would benefit from the increased size and quality of the woodlands. Specifically, the project entails reforestation of approximately 578 acres within selected openings to provide linkage among existing riparian and bottomland hardwood habitat. Also planned is the construction of two wetland cells, including the establishment of wetland vegetation totaling 129 acres and construction and establishment of 102 wood duck boxes. The Corps and Denton formalized their understanding by entering into a Project Cooperation Agreement (PCA) on July 19, 1999. (The PCA is the contract between the federal government and the non-federal sponsor describing the rights and responsibilities of each party during project implementation). It immediately follows the attached Lease. The PCA had to be executed prior to advertisement of the construction contract. The Corps recently submitted a request for bids and received a qualifying low-bid for the restoration work. Before the work can begin, however, Denton must pay its cash share (or $49,200) of the total project cost of $642,400. (The remainder of Denton's share ($111,400) will be work-in-kind ("WlK").) Before Denton can pay its cash share, both parties must sign the attached Lease. By executing the lease, the Corps officially turns the project lands over to Denton for operation and maintenance. ESTIMATED SCHEDULE OF PROJECT: The Corps conducted a "transition meeting" last week to officially move the project from the real estate division to the construction division. The contract will officially be awarded to the contractor the first week of April. Actual construction work will begin immediately thereafter. The City of Denton launched its reforestation effort March 11, 2000. The tree planting portion of the WlK requirement will occur over a two year period, primarily in the fall and spring. Once the contractor completes construction of the wetland cells, Denton will plant appropriate vegetation, build the wood duck houses, and locate them throughout the wetland habitat. FISCAL INFORMATION: The total project cost is $642,400. The federal share is 75% of the cost, or $481,800. The remaining amount, or $160,600 is Denton's share of the cost. Of this, $111,400 will be WlK. (WlK includes reforestation of 192 acres by coordinating with UNT and using volunteers for labor. Volunteers will also be used for wetlands revegetation and construction and placement of the 102 wood duck boxes among the wetlands.) The remaining $49,200 will be paid by utilities. (The proposed budget for utilities for FY 00 includes funds for this project.) RECOMMENDATION: Staff recommends PUB approve the attached Lease. Res Ju ~ectfully submitted: ~ronm~tffal Compliance Manager Exhibit: 1. Lease (Incorporates the PCA and other relevant material attached thereto.) 2. Map NO. DACW63-1-00-0799 DEPARTMENT OF THE ARMY LEASE LEWISVILLE LAKE DENTON COUNTY, TEXAS THIS LEASE, made on behalf of the United States, between the SECRETARY OF THE ARMY, hereinafter referred to as the Secretary, and the CITY OF DENTON, TEXAS, hereinafter referred to as the Lessee. WITNESSETH: That the Secretary, by authority of Title 16, United States Code, Section 460d, as amended, and Section 1135(b) of the Water Resources Development Act of 1986, Public Law 99-662, as amended, and pursuan5 to Project Cooperation Agreement between the Department of the Army and the Local Sponsor/Lessee entered into on 19 July 1999, (hereinafter referred to as "PCA"), attached hereto and referred to as Exhibit "A", and for the consideration hereinafter set forth, hereby leases approximately 2,645 acres of land within Tracts M~l101-2, 2531 and 2532, to the Lessee as identified in Exhibit "B", attached hereto and made a part hereof, hereinafter referred to as the premises, for the implementation, operation, repair, replacement and rehabilitation of the Project Modification. THIS LEASE is granted subject to the following conditions: 1. TERM Said premises are hereby granted for so long as the PCA remains in full force and effect. 2. CONSIDEI~ATION The consideration for this lease is the implementation, operation, repair, replacement and rehabilitation of the Project Modification and the maintenance of the premises by the Lessee for the benefit of the United States and the general public in accordance with the conditions herein set forth. 3. NOTICES a. All correspondence and notices to be given pursuant to this lease shall be addressed, if to the Lessee, to the City of Denton, 215 E. McKinney, Denton, TX 76201, and if to the United States, to the District Engineer, Fort Worth District, Real Estate Division, ATTN: CESWF-RE-M, P.O. Box 17300, Fort Worth, TX 76102-0300, or as may from time to time otherwise be directed in writing by the parties. Any notice, request, demand, or other communication required or permitted to be given under this lease shall be deemed to have been duly given if in writing and either delivered personally, or by telegram, or mailed by first-class, registered, or certified mail. b. Any notice, request, demand, or other communication made pursuant to this Condition shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendar days after it is mailed. AUTHORIZED REPRESENTATIVES Except as otherwise specifically provided, any reference herein to "Secretary", "District Engineer", or "said officer" shall include their duly authorized representatives. Any reference to "Lessee" shall include its successors, employees and duly authorized representatives. 5. PROJECT MODIFICATION ACTIVITIES a. The Lessee shall comply with the approved Ecosystem Restoration Report or other document ("Reporn") described in Article I of the PCA and the management and development activities described in the Report and in the OMRR&R Manual described in Article VIII of the PCA, both by this reference made a part hereof. b. The Lessee's operation, management and other project modification activities are subordinate to the operation and management of the Existing Project, as defined in Article I of the PCA. The Existing Project will have operational priority in any situation where a conflict arises. c. The use and occupation of the premises shall be subject to the general supervision and approval of the District Engineer. 2 6. APPLICABLE LAWS AND REGULATIONS a. The Lessee shall comply with all applicable Federal laws and regulations and with all applicable laws, ordinances and regulations of the state, county, and municipality wherein the premises are located, including, but not limited to, those regarding construction, health, safety, water supply, sanitation, and use of pesticides. In addition, the Lessee should comply with the specific directions and requirements contained in the OMRR&R Manual referenced in Article VIII of the PCA. The Lessee shall make and enforce such regulations as are necessary and within its legal authority in exercising the privileges granted in this lease, provided that such regulations are not inconsistent with the provisions of law cited in the granting clause. b. The Lessee will provide an annual certification that all water systems on the premises, if any, have been inspected and comply with Federal, state and local standards. Lessee will also provide a statement of compliance with the Rehabilitation Act and the Americans with Disabilities Act, as required in the condition on NON-DISCRIMINATION, noting any deficiencies and providing a schedule for correction. 7. CONDITION OF PREMISES a. The Lessee acknowledges that it has inspected the premises, knows its condition, and understands that the same is leased without any representations or warranties whatsoever and without obligation on the part of the United States to make any alterations, repairs or additions thereto. b. As of the date of this lease, an inventory and condition report of all personal property and improvements of the United States included in this lease shall be made by the District Engineer and the Lessee to reflect the condition of said property and said improvements. A copy of said report is attached hereto as Exhibit "C" and made a part hereof. Upon the expiration revocation, or termination of this lease, another inventory and condition report shall be similarly prepared. This report shall constitute the basis for settlement for property damaged or destroyed. Any such property must be either replaced or restored to the condition required by the condition on PROTECTION OF PROPERTY. 3 8. AGRICULTURAL AND WILDLIFE CONTROL ACTIVITIES a. The Lessee may plant or harvest crops, either directly, by service contract, by sharecrop agreements with local farmers, or by agricultural agreements to provide food and/or habitat for wildlife and for the development and conservation of land, fish and wildlife, forests, and other natural resources. Where feasible, contracts and agreements with third parties shall be by competitive bid procedures. b. The Lessee may take, trap, remove, stock or otherwise control all forms of fish and wildlife on the premises, and may place therein such additional forms of fish and wildlife as it may desire from time to time, and shall have the right to close the area, or any parts thereof from time to time, to fishing, hunting or trapping, provided that the closing of any area to such use shall be consistent with the state laws for the protection of fish and wildlife. 9. TRANSFERS, ASSIGNMENTS Without prior written approval of the District Engineer, the Lessee shall neither transfer nor assign this lease, nor sublet the demised premises cr any Fart thereof, nor grant any interest, privilege, or license whatsoever in connection with this lease. Agreements covered by the condition on AGRICULTURAL AND WILDLIFE CONTROL ACTIVITIES are not subject to this condition. 10. ACCOUNTS, RECORDS AND RECEIPTS a. Ail monies received by the Lessee from the sale of timber or crops conducted on the premises may be utilized by the Lessee for the administration, maintenance, operation and development of the premises. Beginning 5 years from the date of this lease and continuing at 5-year intervals, any such monies not so utilized or programmed for utilization within a reasonable time shall be paid to the District Engineer. The Lessee shall provide an annual statement of receipts and expenditures to the District Engineer. The District Engineer shall have the right to perform audits of the Lessee's records and accounts. b. Payment of direct expenses is authorized for planning and development of optimum wildlife habitat including planting of wildlife food plots, necessary timber clearing, erosion control or habitat improvements such as shelter, restocking of fish and wildlife, and protection of endangered species. Payment of Lessee's employees who are directly engaged in such activities at the project is also authorized. However, proceeds will not be used for the payment of general administrative expenses. c. Proceeds derived from the sale of fishing and hunting leases are not subject to this condition. 11. PROTECTION OF PROPERTY The Lessee shall be responsible for any damage that may be caused to the property of the United States by the activities of the Lessee under this lease, and shall exercise due diligence in the protection of all property located on the premises against fire or damage from any and all other causes. Any property of the United States damaged or destroyed by the Lessee incident to the exercise of the privileges herein granted shall be promptly repaired or replaced by the Lessee to a condition satisfactory to said officer, or at the election of said officer, reimbursement made therefor by the Lessee in an amount necessary to restcre or replace the property to a condition satisfactory to said officer. 12. RIGHT TO ENTER AND FLOOD The right is reserved to the United States, its officers, agents, and employees to enter upon the premises at any time and for any purpose necessary or convenient in connection with Government work; to make inspections; to remove timber or other material, except property of the Lessee; to flood the premises; to manipulate the level of the lake or pool in any manner whatsoever; and/or to make any other use of the land as may be necessary in connection with project purposes, and the Lessee shall have no claim for damages on account thereof against the United States or any officer, agent, or employee. 13. RESTORATION On or before the expiration of this lease or its termination by the Lessee, the Lessee shall vacate the premises, remove the property of the Lessee therefrom, and re~tore the premi~e~ to a 5 condition satisfactory to the District Engineer. If, however, this lease is revoked, the Lessee shall vacate the premises, remove said property therefrom and restore the premises to the aforesaid condition with such time as the District Engineer may designate. In either event, if the Lessee shall fail or neglect to remove said property and restore the premises, then, at the option of the District Engineer, said property shall either become the property of the United States without compensation therefor, or the District Engineer may cause the property to be removed and no claim for damages against the United States or its officers or agents shall be created by or made on account of such removal and restoration work. The Lessee shall also pay the United States on demand any sum which may be expended by the United States after the expiration, revocation, or termination of this lease in restoring the premises. 14. NON-DISCRIMINATION a. The Lessee shall not discriminate against any person or persons or exclude them from participation in the Lessee's operations, programs or activities conducted on the leased premises because of race, color, religion, sex, age, handicap or national origin. The Lessee will comply with the Americans with Disabiii~ies Act (42 U.S.C. Sections 12101 e~ seq,..) and attendant Americans with Disabilities Act Accessibility Guidelines (ADAG) published by the Architectural and Transportation Barriers Compliance Board. b. The Lessee, by acceptance of this lease, is receiving a type of Federal assistance and, therefore, hereby gives assurance that it will comply with the provisions of Title VI of the Civil Rights Act of 1964, as amended, (42 U.S.C. Section 2000d); the Age Discrimination Act of 1975 (42 U.S.C. Section 6102); the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794); and all requirements imposed by or pursuant to the Directive of the Department of Defense (32 CFR Part 300) issued as Department of Defense Directives 5500.11 and 1020.1, and Army Regulation 600-7. 15. SUBJECT TO EASEMENTS This lease is subject to all existing easements, easements subsequently granted, and established access routes for roadways and utilities located, or to be located, on the premises provided 6 that the proposed grantee of any new easement or route will be coordinated with the Lessee, and easements will not be granted which will, in the opinion of the District Engineer, interfere with developments, present or proposed, by the Lessee. The Lessee will not close any established access routes without written permission of the District Engineer. 16. SUBJECT TO MINERAL INTERESTS This lease is subject to all outstanding mineral interests. As to federally-owned mineral interests, it is understood that they may be included in present or future mineral leases issued by the Bureau of Land Management (BLM), which has responsibility for mineral development on federal lands. The Secretary will provide lease stipulations to BLM for inclusion in said mineral leases that are designed to protect the premises from activities that would interfere with the lessee's operations or would be contrary to local law. 17. COMPLIANCE, CLOSURE, AND REVOCATION a. The Lessee is charged at all times with full knowledge cf all the limitations and requirements of this lease and the PCA, and the necessity for correction of deficiencies, and with compliance with reasonable requests by the District Engineer. This lease may be revoked in the event the Lessee violates any of the terms and conditions of either the lease or the PCA and continues and persists in such violation. The Lessee will be notified of any non-compliance, which notice shall be in writing or shall be confirmed in writing, giving a period of time in which to correct the non-compliance. Failure to satisfactorily correct any substantial or persistent non-compliance within the specified time is grounds for closure of all or part of the premises, temporary suspension of operation, entry upon the premises for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project Modification, or revocation of the lease, after notice in writing of such intent. b. This lease may be revoked by the Secretary, by giving thirty (30) days notice in writing in the manner described in the condition on NOTICES of this lease, in the event the PCA is terminated pursuant to Article XIV of the PCA or the Secretary 10 determines that the premises identified in Exhibit "B" are no longer required for the implementation, operation and maintenance of the Project Modification. 18. HEALTH AND SAFETY a. The Lessee shall keep the premises in good order and in a clean and safe condition. b. In addition to the rights of revocation for noncompliance, the District Engineer, upon discovery of any hazardous conditions on the premises that present an immediate threat to health and/or danger to life or property, will so notify the Lessee and will require that the affected part or all of the premises be closed to the public until such condition is corrected and the danger to the public eliminated. If the condition is not corrected, the District Engineer will have the option to: (1) correct the hazardous conditions and collect the cost of repairs from the Lessee; or, (2) revoke the lease. The Lessee shall have no claim for damages against the United States, or any officer, agent, or employee thereof on account of action taken pursuant to this condition. 19. PUBLIC USE No attempt shall be made by the Lessee to forbid the full use by the public of the premises and of the water areas of the project, subject, however, to the authority and responsibility of the Lessee under this lease to manage the premises and provide safety and security to the visiting public. 20. NATURA3~ RESOURCES The Lessee shall cut no timber, conduct no mining operations, remove no sand, gravel, or kindred substances from the ground, commit no waste of any kind, nor in any manner substantially change the contour or condition of the premise, except as may be authorized under and pursuant to the Report described in the condition on PROJECT MODIFICATION ACTIVITIES. The Lessee may salvage fallen or dead timber; however, no commercial use shall be made of such timber. Except for timber salvaged by the Lessee when in the way of construction of improvements or other facilities, all sales of forest products will be conducted by the United States and the proceeds therefrom shall not be available to the Lessee under the provisions of this lease. 21. DISPUTES CLAUSE a. Except as provided in the Contract Disputes Act of 1978 (41 U.S.C. 601-613) (the Act), all disputes arising under or relating to this lease shall be resolved under this clause and the provision of the Act. b. "Claim", as used in this clause, means a written demand or written assertion by the Lessee seeking, as a matter of right, the payment of money in a sum certain, the adjustment of interpretation of lease terms, or other relief arising under or relating to this lease. A claim arising under this lease, unlike a claim relating to that lease, is a claim that can be resolved under a lease clause that provides for the relief sought by the Lessee. However, a written demand or written assertion by the Lessee seeking the payment of money exceeding $100,000 is not a claim under the Act until certified as required by subparagraph b.(2) below. (I) A claim by the Lessee shall be made in wriling and submitted to the District Engineer for a written decision. A claim by the Government against the Lessee shall be subject to a written decision by the District Engineer. (2) For Lessee claims exceeding $100,000, the Lessee shall submit with the claim a certification that-- (i) The claim is made in good faith; (ii) Supporting data are accurate and complete to the best of the Lessee's knowledge and belief; and (iii) The amount requested accurately reflects the lease adjustment for which the Lessee believes the Government is liable. (3) if the Lessee is an individual, the certificate shall be executed by that individual. If the Lessee is not an individual, the certification shall be executed by: (i) A senior company official in charge at the Lessee's location involved; or (ii) An officer or general partner of the Lessee having overall responsibility of the conduct of the Lessee's affairs. c. For Lessee claims of $100,000 or less, the District Engineer must, if requested in writing by the Lessee, render a decision within 60 days of the request. For Lessee-certified claims over $100,000, the District Engineer must within 60 days, decide the claim or notify the Lessee of the date by which the decision will be made. d. The District Engineer's decision shall be final unless the Lessee appeals or files a suit as provided in the Act. e. At the time a claim by the Lessee is submitted to the District Engineer or a claim by the Government is presented to the Lessee, the parties, by mutual consent, may agree to use alternative means of disputes resolution. When using alternate dispute resolution procedures, any claim, regardless of amount, shall be accompanied by the certificate described in paragraph b. (2) of this clause, and executed in acccrdance with paragraph b. (3) of this clause. f. The Government shall pay interest on the amount found due and unpaid by the Government from (1) the date the District Engineer received the claim (properly certified if required), or (2) the date payment otherwise would be due, if that date is later, until the date of payment. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury, as provided in the Act, which is applicable to the period during which the .District Engineer received the claim, and then at the rate applicable for each 6-month period as fixed by the Treasury Secretary during the pendency of the claim. g. The Lessee shall proceed diligently with the performance of the lease, pending final resolution of any request for relief, claim, appeal, or action arising under the lease, and comply with any decision of the District Engineer. 10 22. ENVIRONMENTAL PROTECTION a. Within the limits of their respective legal powers, the parties to this lease shall protect the premises against pollution of its air, ground, and water. The Lessee shall comply with any laws, regulations, conditions or instructions affecting the activity hereby authorized if and when issued by the Environmental Protection Agency or any Federal, state, interstate or local governmental agency having jurisdiction to abate or prevent pollution. The disposal of any toxic or hazardous materials within the premises is specifically prohibited. Such regulations, conditions, or instructions in effect or prescribed by said Environmental Protection Agency, or any Federal, State, interstate or local governmental agency are hereby made a condition of this lease. b. The Lessee will use all reasonable means available to protect the environment and natural resources, and where damage nonetheless occurs from activities of the lessee, the Lessee shall be liable to restore the damaged property. Lessee shall be considered the operator of the Project Mcdifica5ion for purposes of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Sec5ions 9601 -9675). c. The Lessee must obtain approval in wrising from said officer before any pesticides or herbicides are applied to the premises. 23. ENVIRONMENTAL BASELINE SURVEY An Environmental Baseline Survey (EBS) documenting the known history of the property with regard to the storage, release or disposal of hazardous substances thereon, is attached hereto and made a part hereof as Exhibit "D". Upon expiration, revocation or relinquishment of this lease another EBS shall be prepared by the District Engineer which will document the environmental condition of the property at that time. A comparison of the two assessments will assist the said officer in determining any environmental restoration requirements. Any such requirements will be completed by the Lessee in accordance with the condition on RESTORATION. 11 24. HISTORIC PRESERVATION The Lessee shall not remove or disturb, or cause or permit to be removed or disturbed, any historical, archeological, architectural or other cultural artifacts, relics, remains or objects of antiquity. In the event such items are discovered on the premises, the Lessee shall immediately notify said officer and protect the site and the material from further disturbance until said officer gives clearance to proceed. 25. SOIL AND WATER CONSERVATION The Lessee shall maintain, in a manner satisfactory to said officer, all soil and water conservation structures that may be in existence upon said premises at the beginning of or that may be constructed by the Lessee during the term of this lease, and the Lessee shall take appropriate measures to prevent or control soil erosion within the premises. Any soil erosion occurring outside the premises resulting from the activities of the Lessee shall be corrected by the Lessee as directed by the said officer. 26. HOLD HARMLESS The Lessee shall hold and save the United States free from damages arising from the implementation, operation, maintenance, repair, replacement and rehabilitation of the Project Modification, and any Project Modification-related betterments, and management of the premises and the facilities and improvements, except for damages due to the fault or negligence of the United States or its contractors. 27. COVENANT AGAINST CONTINGENT FEES The Lessee warrants that no person or selling agency has been employed or retained to solicit or secure this lease upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Lessee for the purpose of securing business. For breach or violation of this warranty, the United States shall have the right to annul this lease without liability or, in its discretion, to require the Lessee to pay, in addition to the lease rental or consideration, the full amount of such commission, percentage, brokerage or contingent fee. 12 28. OFFICIALS NOT TO BENEFIT No Member of or Delegate to Congress or Resident Commissioner shall be admitted to any share or part of this lease or to any benefits to arise therefrom. However, nothing herein contained shall be construed to extend to any incorporated company if the lease be for the general benefit of such corporation or company. 29. MODIFICATIONS This lease contains the entire agreement between the parties hereto, and no modification of this agreement, or waiver, or consent hereunder shall be valid unless the same be in writing, signed by the parties to be bound or by a duly authorized representative; and this provision shall apply to this clause as well as all other conditions of this lease. 30. DISCLAIMER This lease is effective only insofar as the rights of the United States in the premises are concerned; and the lessee shall obtain such permission as may be required on account of any other existing rights. It is undersuood that the granting of this lease does not eliminate the necessity of obtaining any Department of the Army permit which may be required pursuant to the provisions of Section 10 of the Rivers and Harbors Act of 3 March 1899 (30 Stat. 1151; 33 U.S.C. Section 403), or Section 404 of the Clean Water Act (33 U.S.C. Section 1344). 13 IN WITNESS W~EREOF I have hereunto set my hand by authority of the Secretary of the Army this __. day of , 2000 Hyla J. Head Chief, Real Estate Division THIS LEASE is also executed by the Lessee this of , 2000. day ATTEST: CITY OF DENTON BY: City Secretary BY: City Manager Approved as to Legal Form: Herbert L. Prouty, City Attorney BY: Assistant City Attorney 14 CERTIFICATE , certify that I am an of the City of Denton, Texas, named as Lessee herein. That , who signed this Lease on behalf of the Lessee was then of the City of Denton, Texas, and that said Lease was duly signed for and on behalf of the City by authority of its governing body and is within the scope of its legal powers. (Signature) 15 MODEL PROJECT COOPERATION AGREEMENT FOR SECTION 1135, PROJECT MODIFICATIONS FOR THE IMPROVEMENT OF THE ENVIRONMENT PROJECT COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY CITY OF DENTON, TEXAS FOR MODIFICATION OF THE LEWISVILLE LAKE WILDLIFE MANAGEMENT AREA LEWISVILLE LAKE, TEXAS T'-~IS AGREEMENT is entered into this I q~-~-~ day of .~.(~ , 19 ~, by and between the DEPARTMENT OF T~E ARMY (he~e~',.laTter the "Government"), represented by the U.S. Army Engine. ir for the Fort Worth District (hereinafter the "District Engine,:r") and the City of Denton, Texas, (hereinafter the '"Non- Federa'. Sponsor"i, represented by the Mayor, city of Denton/ Texas. WITNESSETH, THAT: W$IEREAS, the Secretary of the Army completed construction of the Lewisville Lake in 1954, and will complete' construction of the RaL~ Roberts Lake Greenbelt Corridor Project in 1998, which include approximately 3,046 acres of project lands at the upper end of Lewisville Lake, Texas (hereinafter the "Existin~ Projecc", as defined in Article I.A. of this A~reement); 9;!~EREAS, modification of the Existin~ Project is authorized by Section 1135 of the Water Resources Development Act of 1986, Public Law 99-662, as amended; ~EREAS, the Government and the Non-Federal Sponsor desire to enter into a Project Cooperation A~reement for implementation of the Lewisville Lake Project Modification (hereinafter the "Project Modification", as defined in Article I.B. of this Agreement); WHEREAS, Section 1135 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, specifies the cost-sharing requirements applicable to this Project Modification; Exhibit A i ~ WHEREAS, the Non-Federal Sponsor desires to perform certain work (hereinafter the "work-in-kind", as defined in Article I.M. of this Agreement) which is a part of the Project Modification; WHEREAS, the Government and Non-Federal Sponsor have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost-sharing and financing of the implementation of the Project Modification in accordance with the tezms of this Agreement. NOW, THEREFORE, the Government and the .Non-Federal Sponsor agree as follows: ARTICLE I - DEFINITIONS A/gD GENERAL PROVISIONS For purposes of this Agreement: A. The tezm "Existing Project" shall mean Lewisville Lake, Texas, located on the Elm Fork of the Trinity River between Dallas and Denton near the city of Lewisville, Denton County, Texas. The lake has a total storage capacity of 981,763 acre- feet including 640,986 acre-feet of conservation storage at elevation 522.0 feet mean sea level (msl) with a surface area of 29,592 acres; and 340,777 acre-feet of flood control storage at elevation 532.0 feet msl with a surface area of 39,168 acres. Lewisville Lake has an average depth of 21 feet and~250 miles of shoreline. The existin,~ project also includes appr6ximately 5,500 acres of wildlife management area within four'iseparate ' tracts of la_nd. B. The term "Pro3ect Rodification" shall mean the reforestation of approximately 578 acres within selected openings to provide linkage among the existing riparian and bottomland hardwood habitat, the construction of two wetland c~lls, including the establishment of-wetland vegetation totaling 129 acres, and the construction and placement of 102 wodd duck boxes within approximately 2,644 acres of Lewisville Lake project lands north of U.S. Highway 380, as generally described in the ~ Ecosystem Restoration Report and Integrated Environmental Assessment for Lewisville Lake Wildlife Habitat Restoration, Denton County, Texas, dated March 1998, and approved by the Co,~nder, Southwestern Division, on May 28, 1998. 'The Project Modification includes the work-in-kind described in Article I.M. of this Agreement. C. The term "total project modification costs" shall mean all costs incurred by the Non-Federal Sponsor and the Government in accordance with the te~ms of this Agreement directly related to implementation of the Project Modification. Subject to the provisions of this Agreement, the term shall include, but is not necessarily li~ted to, feasibility phase planning costs; all engineering and design costs, including those incurred in the feasibility phase; the costs of investigations to identify the existence and extent of hazardous substances in accordance with Article XV.A. of this Agreement; the costs incurred by the Government for clean-up and response in accordance with Article XV.C. of this Agreement; costs of historic preservation activities in accordance with Article XVIII.A. of this Agreement; actual implementation costs; the credit amount for the work-in- kind performed by the Non-Federal Sponsor in accordance with Article II.D.4. of this Agreement; supervision and administration costs; costs of participation in the Project Coordination Team in accordance with Article V of this Agreement; costs of contract dispute settlements or awards; the value of lands, easements, rights-of-way, relocations, and suitable borrow and dredged or excavated material disposal areas for which the Government affords credit in accordance with Article IV of this Agreement; and costs of audit in accordance with Article X of this Agreement. The te~m does not include any costs for operation, maintenance, repair, replacement, or rehabilitation; any costs due to bette~.~nts; or any costs of dispute resolution under Article VII of this Agreement. D. The term "financial obligation for implementation" shall mean a financial obligation of the Government or a financial obligation of the Non-Federal Sponsor for work-in-kind, other than an obligation pertaining to the provision of lands, easements, rights-of-way, relocations, and borrow and dredged or excavated material disposal areas, that results or would result in a cost that is or would be included in total project modification costs. E. The term ~'implementa~ion" shall mean all actions required to carry out' the Project Modification including all actions required for modification in operations of the Existing Project. F. The term "non-Federal proportionate share" shall'mean the ratio of the Non-Federal Sponsor's total cash contribution required in accordance-with Article II.D.2. of this Agreement to total financial obligations'for il~lementation as projected by the Government. G. The te~,, "period of implementation" shall mean the time from the effective date of this Agreement to the date that the District Engineer notifies the Non-Federal Sponsor in writing of the Government's dete~,.ination that implementation of the Project Modification is complete. H. The te=m "highway" shall mean any public highway, roadway, street, or way, including any bridge thereof. I. The term "relocation', shall mean providing a functionally equivalent facility to the owner of an existing utility, cemetery, highway or other public facility, or railroad when such action is authorized in accordance with applicable legal principles of just compensation. Providing a functionally equivalent facility may take the fo~,,, of alteration, lowering, raising, or replacement and attendant removal of the affected facility or part thereof. J. The term "fiscal year" shall mean one fiscal year of the Government. The Government fiscal year begins on October 1 and ends on September 30. K. The term "functional portion of the Project Modification" shall mean a portion of the Project Modification that is suitable for tender to the Non-Federal Sponsor to operate and maintain in advance of completion of the entire Project Modification. For a portion of the Project Modification to be suitable for tender, the District Engineer must notify the Non- Federal Sponsor in writing of the Government's dete~,,~ination that the portion of the Project Modification is complete and can function independently and for a useful purpose, although the balance of the Project Modification is not complete. L. The renu, "betterment" shall mean a'change in the design and construction of an element of the Project Modification resulting from the application of standards that the'Government determines exceed those that the Government would otherwise apply fo'c accomplishing the design and construction of that element. M. The term "work-in-kind" shall mean the provision of materials and labor for the reforestation of 192 acres, the provision of materials and labor for the construction and placement of 102 wood duck boxes, and the provision of materials and labor for the establishment of wetland vegetation, as approved by Commander, Southwestern Division in a Memorandum dated May 28, 1998. The work-in-kind includes implementation of the authorized improvements as well as planning, engineering, design, supervision and administration, and other activities associated with implementation, but does not include the implementation of bettezments or the provision of lands, easements, rights-of-way, relocations, or suitable borrow and dredged or excavated material disposal areas associated with the work-in-kind. ARTICLE II OBLIGATIONS OF THE GOVERNMENT AND THE NON-FEDERAL SPONSOR A. The Government, subject to the availability of funds and using those funds and funds provided by the Non-Federal Sponsor, shall expeditiously implement the Project Modification, applying those procedures usually applied to Federal projects, pursuant to Federal laws, regulations, and policies. 1. The Government shall afford the Non-Federal Sponsor the opportunity to review and comment on the solicitations for all contracts, including relevant plans and specifications, prior to the Government's issuance of such solicitations. The Government shall not issue the solicitation for the first contract for implementation until the Non-Federal Sponsor has confirmed in writing its willingness to proceed with the Project Modification. To the extent possible, the Government shall afford the Non-Federal Sponsor the opportunity to review and comment on all contract modifications, including change orders, prior to the issuance to the contractor of a Notice to Proceed. In any instance where providin9 the Non-Federal Sponsor with notification of a contract modification or change order is not possible prior to issuance of the Notice to Proceed, the Government shall provide such notification in writing at the earliest date possible. To the extent possible, the Government also shall afford the Non-Federal Sponsor the opportunity to review ~{nd comment on all contract claims prior to, resolution thereof. The Government shall consider in good faith the comments of the Non-Federal Sponsor, but the contents of solicitations, award of contracts, execution of contract modifications, issuance of change orders, resolution of contract claims, and performance of all work on the Project ,Modification (whether the work is performed under contract .or by Government personn61), shall be exclusively within the control of the Government. : 2. Throughout the period of implementation, the District Engineer shall furnish the Non-Federal Sponsor with a copy of the Government's Written Notice of Acceptance of Completed Work for each contract for the Project Modification. B. The Non-Federal Sponsor may request ~he Government to accomplish betterments. Such requests shall be in writing and shall describe the betterments requested to be accomplished. If the Government in its sole discretion elects to accomplish the requested bette~,~Lents or any portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non- Federal Sponsor shall be solely responsible for all costs due to the requested betterments and shall pay all such costs in accordance with Article VI.C. of this Agreement. C. When the District Engineer determines that the entire Project Modification is complete or that a portion of the Project Modification has become a functional portion of the Project Modification, the District Engineer shall so notify the Non- Federal Sponsor in writing and furnish the Non-Federal Sponsor with an Operation, Maintenance, Repair, Replacement, and Rehabilitation Manual (hereinafter the "OMRR&R Manual") and with copies of all of the Government's Written Notices of Acceptance of Completed Work for all contracts for the Project Modification or the functional portion of the Project Modification that have not been provided previously. Upon such notification, the Non- Federal Sponsor shall operate, maintain, repair, replace, and rehabilitate the entire Project Modification or the functional portion of the Project Modification in accordance with Article VIII of this Agreement. D. The Non-Federal Sponsor shall contribute 25 percent of total project modification costs in accordance with the provisions of this paragraph. 1. In accordance with Article III of this Agreement, the Non-Federal Sponsor shall provide all lands, easements, righ~s-of-way, and suitable borrow and dredged or excavated matecial disposal areas that the Government determines the Non- Fede£al'Sponsor must provide for the in~lementation,~ operation, and ~aintenance of the Project Modification, and shall perfo~,,~ or ensure performance of all relocations that the Government dete.~nines to be necessary for the im~.lementation, operation, and mainsenance of the Project Modification. 2. If the Government projects that the value of the Non-'~ederal Sponsor's contributions ur~der paragraph D.1. of this A~ticle'and A_r~icles V, X, and XV.k. of this Agreement will be less than 25 percent of total project modification costs, tke Non-.?ederal Sponsor shall provide an additional cash contTribution, in accordance with Article VI.B. of this Agreement, in the amount necessary to make the Non-Federal Sponsor's total contribution equal to 25 percent of total project modification cost;~. ~ 3. If the Government determines that the value of the Non-Federal Sponsor's contributions provided under paragraphs D.1. and D.2. of this A/ticle and Articles V, X, and XV.A. of this Agreement has exceeded 25 percent of total project modification costs, the Government, subject to the availability of funds, shall reimburse the Non-Federal Sponsor for any such value in excess of 25 percent of total project modification costs. After such a determination, the Government, in its sole discretion, may provide any remaining Project Modification lands, easements, ri~hts-of-way, and suitable borrow and dredged or excavated material disposal areas and perform any remaining Project Modification relocations on behalf of the Non-Federal Sponsor. Notwithstanding the provision of lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas or performance of relocations by the Government under this paragraph, the Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs of cleanup and response in accordance with Article XV.C. of this Agreement. 4. The Government has determined that the work-in-kind is compatible with the Project Modification and has approved a credit in the estimated amount of $70,500 for implementation of such work by the Non-Federal Sponsor. The affording of such credit shall be subject to an on-site inspection by the Government to verify that the work was accomplished in a satisfactory manner and is suitable for inclusion in the Project Modification. The actual amount of credit shall be subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. To afford such credit, the Government shall apply the credit amount toward any additional cash contribution required under paragraph D.2. of this Article. The Non-Federal Sponsor shall not ~eceive credit for any amount in excess of such additional cash contribution, nor shall the Non-Federal Sponsor be entitled to any reimbursement for any excess Credit amount. In no even~ shal~ the Non-Federal Sponsor perfoxm work-in-kind that would result in either the credit afforded under this~ paragraph exceeding 80 percent of the Non-FederaI Sponsor's share of total project modification costs or the credit afforded-~under this paragraph, plus the value of lands, easements, rights-of- way, relocations, and suitable borrow and dredged or excavated material disposal areas-~for which the Government affords credit in accor~a-nce'with Art±cle IV of this Agr~ement,~'exceeding 25 percent of total pro~ect m~{.ficat? .... costs. E 7'he ,~on-Federal Sponsor may re_c/u~gt th~ Government to provide i~,nds,-easements, rights-of-way, and sub. table borrow and dredged or excavated, material disposal areas or p~rform relocations on behalf of th~ Non-Federal Sponsor. Such requests · ~i1 be in writing and shall.-.describe the services requested to be perfor,,~d, if in its sole-discretion the Government eleccs to perform the requested services or any portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. In the event of conflict between such a writing and this Agreement, this Agreement shall~control. The Non-Federal Sponsor shall be solely responsible for all costs of the requested services and shall pay all such costs in accordance with Article VI.C. of this Agreement. Notwithstanding the provision of lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas or performance of relocations by the Government under this paragraph, the Non- Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs of cleanup and response in accordance with Article XV.C. of this Agreement. 7 F. The Government shall perform a final accounting in accordance with Article VI.D. of this Agreement to determine the contributions provided by the Non-Federal Sponsor in accordance with paragraphs B., D., and E. of this Article and Articles V, X, and XV.A. of this Agreement and to detezmine whether the Non- Federal Sponsor has met its obligations under paragraphs B., D., and E. of this Article. G. The Non-Federal Sponsor shall not use Federal funds to meet its share of total project modification costs under this Agreement unless the Federal granting agency verifies in writing that the expenditure of such funds is expressly authorized by statute. ARTICLE III LANDS, RELOCATIONS, DISPOSAL AREAS, AND PUBLIC LAW 91-646 COMPLIANCE A. The Government, after consultation with the ~on-Federal Sponsor, shall determine the lands, easements, and rights-of-way required for the implementation, operation, and maintenance of the Project Modification, including those required fop relocations, borrow materials, and dredged or excavated material disposal. The Government in a timely manner shall proyide the Non-Federal Sponsor with general written descriptions,, including maps as appropriate, of the lands, easements, and rights-of-way that the Government determines the Non-Federal Sponsor must provide, in detail sufficient to enable the Non-Federal. Sponsor to fulfill its obligations under this paragraph, and shall provide the Non-Federal Sponsor with a written notice to procee~ with acquisition of such lands, easements, and rights-of-way. Prior to the end of the period of implementation, the. NonmFederal Sponsor shall acquire-all lands, easements, and rights-of-way set forth in such descriptions. Furthez,,~re, prior to issuance of the solicitation for each construction contract, the Non~ederal. Sponsor shall-.provide ~he Government with au~ho~izatio~ fo~ entry to all lands, easements, and rights-of-way the Government '. determines the Non-Federal Sponsor must provide for that contract. The Non-Federal Sponsor shall ensure that lands, easements,, and rights-of-way that the Government determines to be required for the operation and maintenance of the Project Modification and that were provided by the Non-Federal~Sponsor are retained in public ownership for uses compatible with the authorized purposes of the Project Modification. B. The Government, after consultation with the Non-Federal Sponsor, shall determine the improvements required on lands, easements, and rights-of-way to enable the proper disposal of dredged or excavated material associated with the implementation, operation, and maintenance of the Project Modification. Such improvements may include, but are not necessarily limited to, retaining dikes, wasteweirs, bulkheads, embankments, monitoring features, stilling basins, and de-watering pumps and pipes. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions of such improvements in detail sufficient to enable the Non-Federal Sponsor to fulfill its obligations under this paragraph, and shall provide the Non- Federal Sponsor with a written notice to proceed with construction of such improvements. Prior to the end of the period of implementation, the Non-Federal Sponsor shall provide all improvements set forth in such descriptions. Furthermore, prior to issuance of the solicitation for each Government construction contract, the Non-Federal Sponsor shall prepare plans and specifications for all improvements the Government determines to be required for the proper disposal of dredged or excavated material under that contract, submit such plans and specifications to the Government for approval, and provide such improvements in accordance with the approved plans and specifications. C. The Government, after consultation with the Non-Federal Sponsor, shall determine the relocations necessary for the implementation, operation, and maintenance of the Project Modification, including those necessary to enable the removal of borrow materials and the proper disposal of dredged or excavated material. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions, including maps as appropriate, of such relocations in detail sufficient to enable the Non-Federal Sponsor to fulfill its obligations under this paragraph, and sh.~ll provide the Non-Federal Sponsor with a written notice to proceed with such relocations. Prior to the end of the period of implementation, the Non-Federal Sponsor shall perform or ensur~ the performance of all relocations as set forth in such descriptions. Furthermore, prior to issuance of the.solicitation for each Government construction contract, the Non-Federal Sponsor shall prepare or ensure the preparation of plans and specifications for, and perform or ensure the performance of, all relocations the Government determines to be necessary for that contract. ~ D. The Non-Federal Sponsor in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to dete~,,,ine the value of any contribution provided pursuant to paragraphs A., B., or C. of this Article. Upon receipt of such documents the Government, in accordance with Article IV of this Agreement and in a timely manner, shall determine the value of such contribution, include such value in total project modification costs, and afford credit for such value toward the Non-Federal Sponsor's share of total project modification costs. E. The Non-Federal Sponsor shall comply with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended by Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contained in 49 C.F.R. Part 24, in acquiring lands, easements, and rights-of-way reql/ired for the implementation, operation, and maintenance of the Project Modification, including those necessary for relocations, borrow materials, and dredged or excavated material disposal, and shall inform all affected persons of applicable benefits, policies, and procedures in connection with said Act. F. The Government shall make available to the Non-Federal Sponsor by lease, substantially in accordance with Exhibit A, those lands administered by the Government which the Government determines to be required for the implementation, operation and maintenance of the Project Modification. If there is an existing lease or license covering the property required for the Project Modification, such lease will be modified to delete this area prior to the issuance of the lease or license to the Non-Federal Sponsor of the Project Modification. No provision of this Agreement shall merge into any lease executed pursuant to this paragraph. ARTICLE IV - CREDIT FOR LANDS, RELOCATIONS, AND DISPOSAL AREAS A. The Non-Federal Sponsor shall receive credit toward its share of total project modification costs for the value of the lands, easements, rights-of-way, and suitable borrow and dredged or excavated material disposal areas that the Non-Federal Sponsor mu_st provide pursuant to Article III of this Agreement, and for the v~lue of the relocations that the Non-Federal Sponsor must perform or for which it must ensure pelformance pursuant to Article III of this Agreement. However, the Non-Federal Sponsor shall not receive credit for the value of any lands, easements, rightg-of-way, relocations, or borrow and dredged or excavated material disposaI areas that have been provided previously as an item of cooperation for another Federal project, including the Existing Project. The Non-Federal Sponsor also shall not receive credit for the value of lands, easements, rights-of-way, relocations, or borrow and dredged or excavated material disposal areas to the extent that such items are provided using Federal funds unless the Federal granting agency verifies in writing that such credit is expressly authorized by statute. B. For the sole purpose of affording credit in accordance with this Agreement, the value of lands, easements, and rights- of-way, including those necessary for relocations, borrow materials, and dredged or excavated material disposal, shall be the fair market value of the real property interests, plus certain incidental costs of acquiring those interests, as determined in accordance with the provisions of this paragraph. 10 1. Date of Valuation. The fair market value of lands, easements, or rights-of-way owned by the Non-Federal Sponsor on the effective date of this Agreement shall be the fair market value of such real property interests as of the date the Non-Federal Sponsor provides the Government with authorization for entry thereto. However, for lands, easements, or rights-of- way owned by the Non-Federal Sponsor on the effective date of this Agreement that are required for the construction of the work-in-kind, fair market value shall be the value of such real property interests as of the date the Non-Federal Sponsor awards the first construction contract for the work-in-kind, or, if the Non-Federal Sponsor performs the implementation with its own labor, the date that the Non-Federal Sponsor begins implementation of the work-in-kind. The fair market value of lands, easements, or rights-of-way acquired by the Non-Federal Sponsor after the effective date of this Agreement shall be the fair market value of such real property interests at the time the interests are acquired. 2. General Valuation Procedure. Except as provided in Paragraph B.3. of this Article, the fair market value of lands, easements, or rights-of-way shall be determined in accordance with paragraph B.2.a. of this Article, unless thereafter a different amount is determined to represent fair market value in accordance with paragraph B.2.b. of this Article. a. The Non-Federal Sponsor shall: obtain, for each real property interest, an appraisal that is prepared by a qualified appraiser who is acceptable to the Non,Federal Sponsor and the Government. The appraisal must be prepared in accordance with the applicable rules of just compensation, as specified by the Government. The fair market value shall be the amount set forth in the Non-Federal Sponsor's appraisal,~ if such appraisal is approved by the Government. In the event the ~Government does not approve the Non-Federal Sponsor's appraisal, the Non-Federal Sponsor may obtain a second appraisal, and the fair market value shall be the amount set forth in the Non-Federal Sponsor's second appraisal, if such appraisal is approved by the Government. In the event the Government does not approve the Non-Federal Sponsor's second appraisal, or the Non-Federal Sponsor chooses not to obtain a second appraisal, the Government shall obtain an appraisal, and the fair market value shall be the amount set forth in the Government's appraisal, if such appraisal is approved by the Non-Federal Sponsor. In the event the Non- Federal Sponsor does not approve the Government's appraisal, the Government, after consultation with the Non-Federal Sponsor, shall consider the Government's and the Non-Federal Sponsor's appraisals and determine an amount based thereon, which shall be deemed to be the fair market value. 11 b. Where the amount paid or proposed to be paid by the Non-Federal Sponsor for the real property interest exceeds the amount determined pursuant to paragraph B.2.a. of this Article, the Government, at the request of the Non-Federal Sponsor, shall consider all factors relevant to determining fair market value and, in its sole discretion, after consultation with the Non-Federal Sponsor, may approve in writing an amount greater than the amount determined pursuant to paragraph B.2.a. of this Article, but not to exceed the amount actually paid or proposed to be paid. If the Government approves such an amount, the fair market value shall be the lesser of the approved amount or the amount paid by the Non-Federal Sponsor, but no less than the amount determined pursuant to paragraph B.2.a. of this Article. 3. Eminent Domain Valuation Procedure. For lands, easements, or rights-of-way acquired by eminent domain proceedings instituted after the effective date of this Agreement, the Non-Federal Sponsor shall, prior to instituting such proceedings, submit to the Government notification in writing of its intent to institute such proceedings and an appraisal of the specific real property interests to be acquired in such proceedings. The Government shall have 60 days after receipt of such a notice and appraisal within which to review the appraisal, if not previously approved by the Government in writing. a. If the Government previously has approved the appraisal .in writing, or if the Government provides written approval of, or takes no action on, the appraisal within such 60- day period, the Non-Federal Sponsor shall use the amount set forth in such appraisal as the estimate cf just compensation for the pul~ose of instituting the eminent domain proceeding. b. If the Government provides written .disapproval of the appraisal, including the reasons for disapproval, within such 60-day period, the Government and the Non-Federal Sponsor shall consult in good faith to promptly resolve the issues or areas of disagreement that are identified in the Government's written disapproval. If, after such good faith consultation, the Government and the Non-Federal Sponsor agree as to an appropriate amount, then the Non-Federal Sponsor shall use that amount as the estimate of just compensation for the pu-~-pose of instituting the eminent domain proceeding. If, after such good faith consultation, the Government and the Non- Federal Sponsor cannot agree as to an appropriate amount, then the Non-Federal Sponsor may use the amount set forth in its appraisal as the estimate of just compensation for the purpose of instituting the eminent domain proceedingf c. For lands, easements, or rights-of-way acquired by eminent domain proceedings instituted in accordance with sub-paragraph B.3. of this Article, fair market value shall 12 3O be either the amount of the court award for the real property interests taken, to the extent the Government determined such interests are required for the implementation, operation, and maintenance of the Project Modification, or the amount of any stipulated settlement or portion thereof that the Government approves in writing. 4. Incidental Costs. For lands, easements, or rights-of-way acquired by the Non-Federal Sponsor within a five-year period preceding the effective date of this Agreement, or at any time after the effective date of this Agreement, the value of the interest shall include the documented incidental costs of acquiring the interest, as determined by the Government, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. Such incidental costs shall include, but not necessarily be limited to, closing and title costs, appraisal costs, survey costs, attorney's fees, plat maps, and mapping costs, as well as the actual amounts expended for payment of any Public Law 91-646 relocation assistance benefits provided in accordance with Article III.E. of this Agreement. C. After consultation with the Non-Federal Sponsor, the Government sfall determine the value of relocations in accordance with the provisions of this paragraph. 1. For a relocation other than a highway, the value shall be only that portion of relocation costs that the Government~etermines is necessary--t~.-pr~vide-~-~un~-t-i~natty equivalent facility, reduced by depreciation, as applicable, and by the salvase value of any removed items. 2. For a relocation of a highway, the value shall be only that portion of relocation costs that would be necessary to accomplish the relocation in accordance with the design standard that the State of Texas would apply under similar conditions of geography and traffic load, reduced by the salvage 'value of any removed items. 3. Relocation costs shall include, but not necessarily be limited to, actual costs of performing the relocation;planning, engineering and design costs; supervision and administration costs; and documented incidental costs associated with performance of the relocation, but shall not include any costs due to betterments, as determined by the Government, nor any additional cost of using new material when suitable used material is available. Relocation costs shall be subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. 13 D. The value of the improvements made to lands, easements, and rights-of-way for the proper disposal of dredged or excavated material shall be the costs of the improvements, as determined by the Government, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. Such costs shall include, but not necessarily be limited to, actual costs of providing the improvements; planning, engineering and design costs; supervision and administration costs; and documented incidental costs associated with providing the improvements, but shall not include any costs due to betterments, as determined by the Government. ARTICLE V - PROJECT MODIFICATION COORDINATION TEAM A. To provide for consistent and effective communication, the Non-Federal Sponsor and the Government, not later than 30 days after the effective date of this Agreement, shall appoint named senior representatives to a Project Modification Coordination Team. Thereafter, the Project Modification Coordination Team shall ~et regularly until the end of the period of~implementation. The Government's Project Manager and a counterpart named by the Non-Federal Sponsor shall co-chair the Project Modification Coordination Team. B. The Government's Project Manager and the Non-Federal Sponsor's counterpart shall keep the Project Modification Coordination Team informed of the progress of implementation and of significant pending i~ues and actions, and shall seek the views of the Project Modf. fication Coordination Team on matters that the Project Modific~,tion Coordination Team generally oversees. C. Until the end of the period of implementation, the Project Modification Coordination Team shall generally oversee the Project Modification, including issues related to design; plans and.specifications; scheduling; real property and relocation requirements; real property acquisition; contract awards and modifications; contract costs; the Government's cost projections; final inspection of the entire Project Modification or functiDnal portions of the Project Modification; preparation of the proposed OMRR&R Manual; anticipated requirements and needed capabilities for perfozmance of operation, maintenance, repair, replacement, and rehabilitation of the Project Modification; and. other related matters. D. The Project Modification Coordination Team may make reco~,~,~ndations that it deems warranted to the District Engineer on matters that the Project Modification Coordination Team generally oversees, including suggestions to avoid potential sources of dispute. The Government in good faith shall consider the recommendations of the Project Modification Coordination Team. The Government, having the legal authority and 14 responsibility for implementation of the Project Modification, has the discretion to accept, reject, or modify the Project Modification Coordination Team's recommendations. E. The costs of participation in the Project Modification Coordination Team shall be included in total project modification costs and cost shared in accordance with the provisions of this Agreement. ARTICLE VI - METHOD OF PAYMENT A. The Government shall maintain current records of contributions provided by the parties and current projections of total project modification costs and costs due to betterments. At least quarterly, the Government shall provide the Non-Federal Sponsor with a report setting forth all contributions provided to date and the current projections of total project modification costs, of total costs due to betterments, of the components of total project modification costs, of each party's share of total project modification costs, of the Non-Federal Sponsor's total cash contributions required in accordance with Articles II.B., II.D., and II.E. of this Agreement, and of the non-Federal proportionate share. On the effective date of this Agreement, total ~roject modification costs are projected to be $~13,200, and tk~ Non-Federal Sponsor's cash contribution required under Article II.D. of this Agreement is projected to be $49,300. Such smounts are estimates subject to adjustment by the Goverrment and are not to be construed as the total financial responsibilities of the Government and the Non--Federal Sponsor. ~. The Non-Federal Sponsor shall provide the cash contribution required under Article II.D.2. of this Agreement in accordance with the following provisions: Not less than 60 calendar days prior to the scheduled date for issuance of the solicitation for the first construction contract, the Government shall notify the Non-Federal Sponsor in writing of such scheduled date and the funds the Government, after consideration of any credit afforded pursuant to Article II.D.4. of this Agreement, dete~,,~ines to be required from the Non-Federal Sponsor to meet its projected cash contribution under Article II.D.2. of this · Agreement. Not later than such scheduled date', the Non-Federal Sponsor shall provide the Gove~x~ment with the full amount of the required funds by delivering a check payable to "FAO, USAED, Fort Worth District" to the U.S. Army Corps of Engineers Finance Center, CEFC-AD-C EROC M2, 5720 Integrity Drive, Millington, TN 38054-5005. The Gove~-unent shall draw from the funds provided by the Non-Federal Sponsor such sums as the Government, after consideration of any credit afforded pursuant to Article II.D.4. of this Agreement, deems necessary to cover: (a) the non-Federal proportionate share of financial obligations for implementation incurred prior to commencement of the period of in~plementation; and (b) the non-Federal proportionate share of financial obligations for implementation as they are incurred 15 during the period of implementation. In the event the Government determines that the Non-Federal Sponsor must provide additional funds to meet the Non-Federal Sponsor's cash contribution, the Government shall notify the Non-Federal Sponsor in writing of the additional funds required. Within 60 calendar days thereafter, the Non-Federal Sponsor shall province the Government with a check for the full amount of the additional required funds. C. In advance of the Government incurring any financial obligation associated with additional work under Article II.B. or II.E. of this Agreement, the Non-Federal Sponsor shall provide the Government with the full amount of the funds required to pay for such additional work by delivering a check payable to "FAO, USAED, Fort Worth District" to the U.S. A~my Corps of Engineers Finance Center, CEFC-AD-C EROC M2, 5720 Integrity Drive, Millington, TN 38054-5005. The Government shall draw from the funds provided by the Non-Federal Sponsor such sums as the Government deems necessary to cover the Government's financial obligations for such a~ditional work as they are incurred. ~In the event the Governme..]t determines that the Non-Federal SpOnsor must provide additional funds to meet its cash contribution, the Government shall notif; the Non-Federal Sponsor in writing of the additional funds required. Within 30 calendar days thereafter, the Non-Federal Sponso~ shall provide the Government with a ~check for the full amount of the additional required funds. D. Upon completion of the Project Modification or = tezmination of this Ag~eement, and upon resolution of all .~ relevant claims and ap'deals, the Government shall conduct a final accounting and furnish the Non-Federal Sponsor with the results of the final accountin,]. The final accounting shall determine total project modificauion costs, each party's contribution; provided thereto, and each party's required share thereof. 'The final accounting also shall determine costs due to bette~,,,ents and the Non-Federal Sl~.)nsor's cash contribution provided pursuant to Article II.B. of this Agreement. 1. In the event the final accounting shows that the total contribution provided by the Non-Federal Sponsor is less than its required share of total project modification costs plus costs due to any'bettel~ents provided in accordance with Article II.B. of this Agreement, the Non-Federal Sponsor shall, no later than 90 calendar days after receipt of written notice, ~ke a cash payment to the Government of whatever sum is required to meet the Non-Federal Sponsor's required share of total project modification costs plus costs due to any betterments provided in accordance with Article II.B. of this Agreement. 2. In the event the final accounting shows that the total contribution provided by the Non-Federal Sponsor exceeds its required share of total project modification costs plus costs due to any betterments provided in accordance with Article II.B. of this Agreement, the Government shall, subject to the availability of funds, refund the excess to the Non-Federal Sponsor no later than 90 calendar days after the final accounting is complete. In the event existing funds are not available to refund the excess to the Non-Federal Sponsor, the Government shall seek such appropriations as are necessary to make the refund. ARTICLE VII DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must first notify the other party in writing of the nature of the purported breach and seek in good faith to resolve the dispute through negotiation. If the parties cannot resolve the dispute through negotiation, they may agree to a mutually acceptable method of non=binding alternative dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay 50 percent of any costs for the services provided by such a third party as such costs are incurred. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARIICLE VIII - OPERATION, MAINTENANCE, REPAIR, REPLACEMENT, AND REHABILITATION (OMRR&~) A. Upon notification in accordance with Article II.C. of this Agreement and for so long as the Project Modification remainsauthorized, the Non-Federal Sponsor shall operate,~' maintain, repair, replace, and rehabilitate the entire Project Modification or the functional portion of the Project Modification, at no cost to the Government, in a manner co,,patible with the Project Modification's authorized purposes and in accordance with applicable Federal and State laws aS provided in Article XI of this Agreement and specific directions prescribed by'the Government in the O~RR&R Manual and any subsequent amendments thereto. ~. B. The Non-Federal Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon property, that the Non-Federal Sponsor owns or controls for access to the.Project Modification for the purpose of inspection and, if necessary, for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project Modification.. If an inspection shows that the Non-Federal Sponsor for any reason is failing to perform its obligations under this Agreement, the Government shall send a written notice describing the non-perfommance to the Non-Federal Sponsor. If, after 30 calendar days from receipt of the notice, the Non- Federal Sponsor continues to fail to perfo~,,,,' then the Government shall have the right to enter, at reasonable times and in a reasonable manner, upon property the Non-Federal Sponsor owns or controls for access to the Project Modification for the purpose ~7 of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project Modification. No completion, operation, maintenance, repair, replacement, or rehabilitation by the Government shall operate to relieve the Non-Federal Sponsor's obligations as set forth in this Agreement, or to preclude the Government from pursuing any other remedy at law or equity to ensure faithful performance pursuant to this Agreement. ARTICLE IX - INDEMNIFICATION The Non-Federal Sponsor shall hold and save the Government free from all damages arising from the implementation, operation, maintenance, repair, replacement and rehabilitation of the Project Modification, and any Project Modification-related betterments, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE X - MAINTENANCE OF RECORDS AND AUDIT A. Not later than 60 calendar days after the effective date of this Agreement, the Government and the Non-Federal .Sponsor shall develop procedures for keeping books, records, documents, and other evidence pertaining to costs and expenses · incurred pursuant to chis Agreement. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requilements for Grants and Cooperative Agreements to State and Local Gc'zernments at 32 C.F.R. Section 33.20.. The Government and the Nca-Federal Sponsor shall maintain such books, records, documents, ~ud other evidence in accordance with these procedures and for a minimum of three years after the period of implementation and resolution of all relevant claims arising therefrom. To the extent permitted under applicable Federal laws and regulations, the Government and the Non-Federal Sp¢.nso~ shall each allow the other to inspect such books, documents, records, and other evidence. B. Pursuant tc 32 C.F.R. Section 33.26, the Non-Federal Sponsor is responsible for complying with the Single Audit Act of 1984~~ 31 U.S.C. Sections 7501-7507, ~s implemented by Office of Management and Budget (OMB) Circular No. A-133 and Department of Defense Directive 7600.10. Upon request of the Non-Federal Sponsor and to the extent permitted under applicable Federal laws and regulations, the Government shall provide to the Non-Federal Sponsor and independent auditors any information necessary to enable an audit of the Non-Federal Sponsor's activities under this Agreement. The costs of any non-Federal audits performed in accordance with this paragraph shall be allocated in accordance with the provisions of OMB Circulars A-87 and A-133, and such costs as are allocated to the Project Modification shall be included in total project modification costs and cost shared in accordance with the provisions of this Agreement. C. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition to any audit that the Non-Federal Sponsor is required to conduct under the Single Audit Act. Any such Government audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other applicable cost principles and regulations. The costs of Government audits performed in accordance with this paragraph shall be included in total project modification costs and cost shared in accordance with the provisions of this Agreement. ARTICLE XI - FEDERAL AND STATE LAWS In the exercise of their respective rights and obligations under this Agreement, the Non Federal Sponsor and the Government agree to comply with all applicable Federal and State laws and regulations, including, but not limited to, Section 601 of the Civil Rights Act of 1964, Public Law 88-352 (42 U.S.C. 2000d), and Department of Defense Directive 5500.11 issued pursuant thereto, as well as ;%rmy Regulations 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the and Section 402 of the Water Resources Development Act of 1986, as amended (33 U.S.C. 701b-12), requiring non-Federal preparation and implementation of flood plain management plans. ARTICLE XII - RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and ol'~ligations under this Agreement the Government and the Non- Federal Sponsor each act in an independent capacity, and'neither is to be considered the officer~ agent, or employee of the other. B. In the exercise of its rights and obligations under this Agreement, neither party shall provide, without the consent of the other party, any contractor with a release that waives or purports to waive any rights such other party may have to seek relief or redress against such contractor either pursuant to any cause of action that such other party may have or for violation of any law. ARTICLE XIII - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. 19 ARTICLE XIV - TERMINATION OR SUSPENSION A. If at any time the Non-Federal Sponsor fails to fulfill its obligations under Article II.B., II.D., II.E., VI, or XVIII.C. of this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend future performance under this Agreement unless he determines that continuation of work on the Project Modification is in the interest of the United States or is necessary in order to satisfy agreements with any other non-Federal interests in connection with the Project Modification. B. If appropriations are not available in amounts sufficient to meet the Government's share of Project Modification expenditures for the then-current or upcoming fiscal year, the Government shall so notify the Non-Federal Sponsor in writing, and 60 calendar days thereafter either party may elect without penalty to terminate this Agreement or to suspend future perfo~,mnce under this Agreement. In the event that either party elects to suspend future performance under this Agreement pursuant to this paragraph, such suspension shall remai~ in effect until such time as the Government receives sufficient appropriations or until either the Government or the Non-Federal Sponsor elects to terminate this Agreement. ~ C. In the event that either party elects to terminate this Agreement pursuant to this Article or Article XV of this Agreement, both parties shall conclude their activities relating to the Project Modification and proceed to a final accounting in accordance with ;~rticle VI.D. of this Agreement. D. Any te~,~,ination of this Agreement or suspension of future performance under this Agreement in accordance with this ;%rticle or Article XV of this Agreement shall not relieve the parties of any obligation previously incurred. Any delinquent payment shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13-week Treasury bills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3-month period if the period of delinquency exceeds 3 months. ARTICLE XV - HAZARDOUS SUBSTANCES A. After execution of this Agreement and upon direction by the District Engineer, the Non-Federal Sponsor shall perform, or cause to be performed, any investigations for hazardous substances that the Government or the Non-Federal Sponsor determines to be necessary to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act 20 (hereinafter "CERCLA"), 42 U.S.C. Sections 9601-9675, that may exist in, on, or under lands, easements, and rights-of-way that the Government determines, pursuant to Article III of this Agreement, to be required for the implementation, operation, and maintenance of the Project Modification, except for any such lands, easements, or rights-of-way that are owned by the United States and administered by the Government, and except for any such lands that the Government determines to be subject to the navigation servitude. The Government shall perform, or cause to be performed, all investigations on lands, easements, or rights- of-way that are owned by the United States and administered by the Government. For lands that the Government determines to be subject to the navigation servitude, only the Government shall perform such investigations unless the District Engineer provides the Non-Federal Sponsor with prior specific written direction, in which case the Non-Federal Sponsor shall perfozm such investigations in accordance with such written direction. All actual costs incurred by the Non-Federal Sponsor or the Government for such investigations for hazardous substances shall be included in total project modification costs and cost shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. B. In the event it is discovered through any investigation for hazardous substances or other means that hazardous substances regulated under CERCLA exist in, on, or under any lands, easements, or rights-of-way, that the Government determines, pursuant to Article III of this Agreement, the Non-Federal Sponsor~ must provide for the implementation, operation, and maintenance of the Project Modification, the Non-Federal Sponsor and the Government shall provide prompt written notice to each other, and the Non-Federal Sponsor shall not proceed with the acquisition of the real property interests until both parties agree that the Non-Federal Sponsor should proceed. ~ C. The Government and the Non-Federal Sponsor shall determine whether to initiate implementation of the Project Modification, or, if already in implementation, whether to continue with work on the Project Modification, suspend future performance under this Agreement, or terminate this Agreement for the convenience of the Government, in any case where hazardous substances regulated under CERCLA are found to exist in, on, or under any lands, easements, or rights-of-way that the Government determines, pursuant to Article III of this Agreement, to be required for the implementation, operation, and maintenance of the Project Modification. Should the Government and the Non- Federal Sponsor determine to initiate or continue with implementation after considering any liability that may arise under CERCLA, the Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs 21 of clean-up and response, to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination on lands, easements or rights of way that the Governn~ent determines, pursuant to Article III of this Agreement, to be required for the implementation, operation, and maintenance of the Project Modification, except for any such lands, easements, or rights-of-way owned by the United States and administered by the Government. Such costs shall not be considered a part of total project modification costs. In the event the Non-Federal Sponsor fails to provide any funds necessary to pay for clean up and response costs or to otherwise discharge the Non-Federal Sponsor's responsibilities under this paragraph upon direction by the Government, the Government may, in its sole discretion, either terminate this Agreement for the convenience of the Government, suspend future performance under this Agreement, or continue work on the Project Modification. The Government shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs of clean-up and response, to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination on lands, easements, or rights of way owned by the United States and administered by the Government. All costs incurred by the Government shall be included in total project modification costs and cost shared in accordance with the terms of this Agreement. D. The Non-Federal Sponsor and the Government shall consult with each other in accordance with Article V of this Agreement in an effort to ensure that responsible parties bear any necessary cleanup and response costs as defined in CERCLA. Any decision made pursuant to paragraph C. of this Article shall not relieve any third party from any liability that may arise under CERCLA. E. As between the Government and the Non-Federal Sponsor, the Non-Federal Sponsor shall be considered the operator of the Project Modification for purposes of CERCLA liability. To the maximum extent practicable, the Non-Federal Sponsor shall operate, ~aaintain, repair, replace, and rehabilitate the Project Modification in a manner that will not cause liability to arise under CERCLA. ARTICLE XVI - NOTICES A. Any notice, request, demand, or other communication required or pezmitted to be given under this Agreement shall be deemed to have been duly given if in writing and either delivered personally, or by telegram, or mailed by first-class, registered, or certified mail, as follows: 40 If to the Non-Federal Sponsor: Mayor City of Denton 215 East McKinney Street Denton, Texas 76201 If to the Government: District Engineer U.S. Army Corps of Engineers Fort Worth District P.O. Box 17300 Fort Worth, Texas 76102-0300 B. A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article. C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as~it is actually received or seven calendar days after it is mailed. ARTICLE XVII - CONFIDENTIALITY To the extent permitted by the laws governing each party, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing par~y. ARTICLE XVIII - HISTORIC PRESERVATION A. The costs of identification, survey and evaluation of historic properties shall be included in total project modification costs and cost shared in accordance with the provisions of this Agreement. B. Pursuant to Section 7(a) of Public Law 93-291 (16 U.S.C. Section 469c(a)), the costs of mitigation and dar~ recovery activities associated with historic preservation shall be borne entirely by the Government and shall not be included in total project modification costs, up to the statutory limit of one percent of the total amount the Government is authorized to expend for the Project Modification. C. The Government shall not incur costs for mitigation and data recovery that exceed the statutory one percent limi~ specified in paragraph B. of this Article unless and until the Assistant Secretary of the Army (Civil Works) has waived that limit in accordance with Section 208(3) of Public Law 96-515 (16 U.S.C. Section 469c-2(3)). Any costs of mitigation and data 23 4~ recovery that exceed the one percent limit shall be included in total project modification costs and shall be cost shared in accordance with the provisions of this Agreement. ARTICLE XIX - LIMITATION ON GOVERNMENT EXPENDITURES Notwithstanding any other provisions of this Agreement, the Government=s financial obligations are limited to $5,000,000. The Non-Federal Sponsor shall be responsible for all total project modification costs that exceed this amount. IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the Department of the Army. THE DEPARTMENT OF THE ~ ColDr~-T, Corps of Engineers District Engineer Fort Worth District THE CITY OF DENTON, TEXAS BY: ~ 24 CERTIFICATE OF AUTHORITY I, do hereby certify that I am the principal legal officer of the City of Denton, Texas, that the City of Denton, Texas, is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the City of Denton, Texas, in connection with the Lewisville Lake Wildlife Management Area Modification Project, and to pay damages in accordance with the terms of this Agreement, if necessary, in the event of the failure to perform, and that the persons who have executed this Agreement on behalf of the City of Denton, Texas, have acted within their statutory authority. IN WITNESS WHEREOF, I have made and e~~this certification this ~ day of HERB PROUTY [TYPED NAME] City Attorney [TITLE IN FULL] 43 CERTIFICATION REGARDING LOBBYING 'The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobby.:ng," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was plac~d when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title '21, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. JACK MILLER [TYPED NAME] Mayor DATE: [TITLE IN FULL] 26 44 LEWISVILLE LAKE & mmm~ mm mm m ENVIRONMENTAL BASELINE SURVEY 1. General: Operations Division responsibilities for compiling with CERCLA are satisfied by completing an Environmental Baseline Survey (EBS) (formerly the PAS/PEE) consisting of a review of available records and interviews with persons or agencies who may have knowledge of the past history of the property in question to determine if hazardous substances were released (vented or spilled), stored, or disposed of on the property in threshold quantities. Note: If any finding(s) are answered "Yes", describe details on a separate page and attach to this EBS. a. Records Review. Records Finding Agency Finding Review No Yes Date Interview No Yes Master Plan [~ [ ] .,/.~'~'~'~'~'~'~'~'~'~'~ _~ Aerial Photos ~ [ ] OMP [~] [ ] .,,r/.~f ERGO Reports D~] [] Permanent Files Date b. On-site Review Finding No Yes N/A Provision "kd' [) [] [] [] [] 1) Is there any evidence of past or present treatment, storage, spillage, or disposal of hazardous substances in the action area? 2) Is there any lead-based paint on any of the structures? (Visually inspect existing buildings, if any, for lead based paint (LBP) (usually, paint walls earlier than 1978.)) 3) Is there any evidence of polychlorinated biphenols (PCB) contamination? (Visually inspect boundaries and interior of the land area for presence of leaking electrical transformers, and other potential sources of (PCB's)). 4) Is there any asbestos-containing materials in the area? (Visually inspect existing buildings, if any, for asbestos-containing materials)). 5) Are there UST's on the property? 6) Are there above ground storage tanks on the property?. Exhibit D . ~ 2. Statement of Condition: [] [] a. According to the information above, no hazardous substances were identified as released, stored, or disposed on the property in threshold quantities. b. The above information indicates hazardous substances were released, stored, or disposed of on the property in threshold quantities. 1) The site has been tested and no contaminants were found in detectable levels. The property is considered safe for the proposed use. 2) The site has been tested and contaminants were found in detectable levels. Remedial action has been taken and the property is considered safe for the proposed use. [] 3) The site has been tested and contaminants were found in detectable levels. Remedial actions have not been taken. Details and justification for outgranting in the current condition are attached. [] 4) The site has been tested and contaminants were found in detectable levels. Remedial actions have not been taken. Therefore, Non-availability is recommended. [J 5) The site has not been tested. Therefore. Non-availability is recommended. S,~atements and/or Conditions: S;gnature: ..~e-~ ~ (Either a, b (1,2, 3,~ (e,g. Pa~ RangedSpecialist/Manager, etc.) Reserved for District Office concur [ no~~n~nc~ur [ ] Condition: Signature: Position: (Statements and/o~ Conditions (Natural Resource Manager) 4; REPORT OF AVAILABILITY A. General description of proposed action: 1. Proposed use: 2. Use requested by: ~-;7-7',/ /~ ~c ,z~-,-,z'T~,,.) ~ ~ ~/' ---,~ '7'~ --~'7~_~ · - (Full Name, Address, provide POC if business or agency) 3. Acreage: -z-) ~ 4. Typg~ of Vegetative Cover: (i.e., Forested, Grassland, Savanna, Pasture, Mesquite thicket, etc) 5. Any Part or all of Tract No(s): 6. Requested term of outgrant: ~ ~-~'-yrs. mo. __dys. Start date: (If applicable) (If applicable) 7. Recommended term of outgrant: ~ yrs. mo. __ dys. Start date: (If Manager Recommendation is negative, place O's) (If applicable) 8. United States property interest is (fee simple, flowage easement, bo~, other, or needs to be determined by RE) :. 9. Give a brief description of~ny Government buildings and/or improvements included in the area: ,,-,././,/~ (N/A if not applicable) ' 48 LEWlSVILLI~ LAKE. 97'/'/'/~ L~ASEO COt~S I;;ROI~RTY ~ GREENBELT CORR~OOf~ m c:~dgnV~Jb5502.dgn 'Jun. 04. 1999 09:45:~.9 ' *' 4 ~ B. Environmental and Cultural Considerations. 1. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): In order to comply with CERCLA, Federal agencies must certify whether or not hazardous substances have been released, stored, or disposed, in threshold quantities, on the property to be outgranted. [] a. This proposal is a minor real estate action and does not require an Environmental Baseline Survey(EBS). Actions which do not require an EBS are: licenses, flowage easement consents, easements, oil and gas approvals and timber sales. b. This proposal is a major real estate action and requires an EBS which is attached. Examples of major actions include: Disposals (including flowage easements); Leases (Park and Recreation, Fish and Wildlife, and Commercial Concession, and Agricultural or Grazing). Statements and/or Conditions:. (Either a o~ b) Reserved for District Office · concur [~no;',c,e~C;ur [] ?c.~ition: Signature: ~~/~ ' ~ Position: (Natural Resd~'~ce Manager) 2 50 2. Clean Water Act (Federal Water Pollution Control Act) a. Point Source Discharges: National Pollutant Discharge Elimination System (NPDES) is applicable for point source discharges (such as a sewage treatment plant or industrial plant outfalls.) 1) This request will not cause a point source discharge of pollutants into waters of the United States. [] 2) This request will cause a point source discharge of pollutants into the waters of the United States thereby requiring the grantee to obtain a NPDES permit from the Environmental Protection Agency (EPA) and/or the Texas Natural Resources Conservation Commission (TNRCC) or their approved assignees. Statements and/or Conditions: (Either 1,o~2) b. Storm Water Re~.uirements for Construction Activities: The storm water runoff portion of the NPDES is applicable for construction activities which will result in the disturbance of five acres or larger. i) This request will not result in a construction activity which~will disturb an~ area of five acres or larger. [ ] 2) This request will result in a construction activity which will disturb an area of five acres or larger, thus the applicant must prepare a storm water pollutiOn prevention plan (SWPPP) and file a Notice of Intent (NOI) with the EPA or ,+heir approved assignee. Sta,+ements and/or Conditions: ) (FJther 1, or 2) .................... Reserved for DistricJLOffice ~ concur [/.-]'~n~gDc~e~cur [ ] Condition: ~ Signature: Position: N~atu~RR~r ( ager) 3. Protection of Wetlands, EO 11990 and Section 404 of the Clean Water Act. EO 11990 requires federal agencies to avoid direct or indirect support of new construction in wetlands wherever there is a practicable alternative. EO 11990 applies only to actions on federal property. Section 404 of the Clean Water Act is concemed with actions which affect waters of the United States by placing dredged and/or fill material into these waters and/or into a wetland or an area that might be a wetland. [] [] [] a. This proposed action will not affect waters of the U.S. or wetlands. b. The proposed occupancy or modification will adversely impact the waters of the U.S. or a wetland. Therefore, Non-availability is recommended. c. This proposed action will affect waters of the U,S. or wetlands. However, there is no other practical alternative available for I~is proposed action and all practicable measures to minimize harm to wetlands are included in the action. d. It is requested that the District Office determine if the proposed action will have an effect on the waters of the United States or wetlands. Statements and/or Conditions: (Either a, b, c, ord) .......... · ~=== ............ Reserved for District Office .... concur [~nonconcur [ ] with determination of field or project office. If t~onconcur, "c', or 'd" from above was selected, a d.~,termination as to the extent the action will have on the walers of the US or wetlands must be made prior -'.o authorization and one of the following statements [ ~ a. This proposed a~on will not effect ~ratem of the US or wetlands. ~-~. ~b..~)nis propostu:l action will eff~t watem of the US or watland$. There is no other practical L.-~'emative available for this proposed action. :.' [ ] 1) The attached Nationwide Permit, number , and its restrictions/conditions should be incorporated into t~e outgrant document. [ ] 2) The attached Letter of Permission, Individual, or General Pe~Tnit, and its restrictions/conditions should be incorlx)rated into the outgrant document. [ ] 3) The attached special conditions or restrictions should be incorporated into the outgrant document in accordance with EO 11990. [ ] c. The proposed occupancy or modification will adversely impact the waters of the US or a wetland. Therefore, Non-availability is recommended. StatementJConditio * ~* ~ Signatu re: ~~"3,-~.~' ~/"~ (Either a,b(1 (a,b, or c) or 2)) Position: 7~-~.~ ~ (Naturat~esource/Regulatory Manager) 4. Floodplain Management E.O. 11988 and Amended by E.O. 12148: This E.O. mandates that each agency must provide leadership and take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the natural and beneficial values served by flood plains. [] a. This request does not contain property that is located within the 100 year floodplain or flood pool, therefore, it does not fall under the purview of E.O. 11988, Floodplain Management. [] [] b, This request does contain property that is located within the 100 year floodplain or flood pool and therefore does fall under the purview of E.O. 11988: 1 ) The impact of the proposed occupancy or modification is de minimus and will not adversely impact the floodplain or flood pool. £) There is no other practical altemative available for this proposed action. The leroposed occupancy or modification may be al!owed subject to the attached rgstrictions/conditions labeled "Floodplain Management" which must be incorporated into the outgrant document. 3) The proposed occupancy or modification will adversely impact the floodplain cr flood pool. Therefore, Non-availability is recommended. Statem(~nt for Finding and Conditions: (Either a, b (1, 2, or 3) ========='- .......... Reserved for District Office ..................... concur [~cur [ ] Conditions: Signature: (Either a, b (1,2, or 3) Position: ~ '-?~" ~'7 (NaturaP1~esource Manager) 6. Fish and Wildlife Coordination Act (FWCA): This act is the Federal legislation which requires coordination of programs and activities with the TPWD and U.S. Fish and Wildlife Service regarding the conservation and rehabilitation of fish and wildlife. a. This proposal does not pertain to any General Plans, Congressionally- authorized mitigation, or Army agreed-to recommendations in Fish and Wildlife reports prepared under the provisions of the FWCA. [] b. This request is consistent with the terms and conditions of General Plans, Congressionally-authorized mitigation, or Army agreed-to recommendations in Fish and Wildlife reports prepared under the provisions of the FWCA. [] c. This request is not consistent with the terms and conditions of General Plans, Congressionally-authorized mitigation, or Army agreed-to recommendations in Fish and Wildlife reports prepared under the provisions of the FWCA. Describe Impact(s): [] Recommendations to mitigate impact(s): d. This request is not consistent with the terms and conditions of General Plans, Congressionally-authorized mitigation, or Army agreed-to recommendations in Fish and Wildlife reports prepared under the provisions of the FWCA. Therefore, Non-availability is recommended. Statements and/or Conditions: (Either a, h, C, O~ d) ....... :==;===== Reserved for District Office ......... . .......... concur [ n,~~o~cur [ ] Condition: ~--' _~ Sig nature: ~//~ )~-~-~ ~r'~~ Position: '~?ef ~'~ (Natural Resource Manager) 7. Historical and Cultural Resources: Federal Law requires that all historic properties or cultural resources which are eligible for or listed in the National Register be considered before funding is approved or any outgrant is issued. [] a. This proposal will not result in ground disturbing activities and thus will not jeopardize any known historical or cultural resources. [] b. This proposal will result in ground-disturbing activities. However, according to the programmatic agreement wit~the State Historic Preservation Officer (SHPO), this action is categori¢;ally f~xcluded (CX) from further historical or, cultural review or documentation: ~tA~O-~ ~*m~T'~'~ (Idenfdfyl~eactualexc~u:~Pn) L,-J--~/--'L '~"4'(~7'- ,~'-- c. This proposal will result in ground-disturbing activities and is not categorically excluded. The following additional data is needed in order for the District Archeologist to determine if this activity will jeopardize historic properties or cultural resources which are eligible for or listed in the National Register. 1) List the date and typ~ of any known surveys of the area:. 2) List the land disturbir.~ impacts of the proposal, (e.g. depths, length, and width of the ama to be disturbed): ~ 3) If the area has been ~.reviously disturbed, describe the extent of the disturbance, (e.g. depths, length, and vidth of the area disturbed): · 4) Identify any cultural re. sources found {ie. flakes, shards, scrapers, etc.): Statements and/or Conditions: (Eilher a, b, or c) ............ R; served for District Office concur,~ nonconcur [ ] If nonconcur or (c) from above was selected, the following required statements and/or conditions will be completed by the District Archeologist. Determination: [] [] a. The requested area has been previously disturbed and activity on the site will not jeopardize any historical and cultural resources. This action has been coordinated with the SHPO and no survey ~dll be required. b. The area has been adequately surveyed for historical and cultural resources and none were identified. This action has been coordinated with the SHPO. REPLY TO ATTENTION OF: DEPARTMENT OF THE ARMY FORT WORTH DISTRICT, CORPS OF ENGINEERS P.O. BOX 17300 FORT WORTH, TEXAS 76102-0300 Operations Division October 4, 1996 OCT 0 ? 1996 Mr. Curtis Tunnell State Historic Preservation officer Texas Historical commission P.O. Box 12276 Au~$n,..~exa~.. ~87.!1 .... Dear Mr. T1/nne11: The U.S. Army Corps of Engineers, Fort Worth District, is planning a wildlife restoration project at Lewisville Lake in Denton County, Texas. The project will include =he excavation of several wetland ponds within the Elm Fork Trinity River floodplain areas shown on the enclosed map. The maximum aepth of excavation will be between 24 and 36 inches. Because Holocene alluvial sites in this setting are so deeply buried, we have determined ~hat the proposed project will not affect historic properties. We request your concurrence with this determination. Sincerely, Chief, Technical Support Branch Enclosure ._ LJ '\ OU~,~QAN~LE LO~AllON 7. Historical and Cultural Resources (con't): [ ] c. A survey of the area has identified historical and/or cultural resources. The resources have been determined ineligible for inclusion in the National Register of Historic Places. This request has been coordinated with the SHPO. Condition: If any of the above determinations (a-c) have been made, the following condition is required in the outgrant: "The proposed construction will have no effect on properties listed in, or eligible for, inclusion in the National Register of Histodc Places. No further review of the project is necessary under Sections 106 and 110 of the National Historic Preservation Act. In the event construction encounters evidence of previously unknown prehistoric and/or historic materials (including human remains, funerary objects, sacred objects, or objects of cultural patrimony) the contractor shall avoid the materials and immediately contact the Corps of Engineers Distdct Archeologist at (817) 978-2885." d. A survey of the area has identified historical and/or cultural resources. The resources have been determined eligible for inclusion in the National Register of Historic Places. Recommend Non-availability along this route. [ ] e. The r~,quested area has not been previously disturbed and activity on the site may jeopard!ze, historical and cultural resources. The applicant must provide a survey perform ;:3d-?y a qualified archeologist of the proposed acti*3n area. Signature: Position: (Amheologist) 9 8. Miscellaneous Provisions. Findings No Yes Provision a. Will the outgrant activity involve the use of pesticides? b. Will the proposed outgrant activity include fuel burners, incinerators, gas pumps, solvents or other volatile compounds? [] [] c. Will the proposed outgrant activity include the use of substances covered by the Toxic Substances Control Act? 1) Will the applicant utilize any lead-based paint? 2) Will tile applicant utilize any items (such as transformers) that, contain polychlorinated biphenols (PCB's)? ~J [ ] 3) Will the applicant utilize any asbestos-containing materials? If yes is answered to any of the following, please give a brief description of the subject (ie. idel~tification of material, number of tanks, gal./size, etc.) ·,. d. Will the applicant generate hazardous waste or treat, dispose, orstore hazardous waste? e. Will the applicant store or utilize hazardous materials (ie. chlorine gas, etc.)? f. Wilt the applicant be installing underground petroleum tanks? g. Will the applicant be installing above ground petroleum tanks? h. Will the applicant install an on-site sewage facility?. (Such as any type of septic system, package treatment plant, etc.) Condition: If any of the above findings (a-h) have been marked "yes", the following condition is required in the outgrant: "The applicant shall be in full compliance with all applicable Federal, State, and local laws and regulations for the following provisions." Provisions; (List all items that are checked yes: a, b, c, d, e, f, ~' g) 10 59 9. National Environmental Policy Act (NEPA): In order to comply with NEPA, Federal agencies must certify whether or not any action has a significant effect on the quality of the human environment. j~. a. Categorical Exclusion (CX). The environmental impacts of this action do not have significant effects on the quality of the human environment and therefore are categorically excluded from further NEPA documentation in accordance with the CX's contained in ER 200-2-2: (Identify the actual exclusion) [ ] b. Request Determination. Statements and/or Conditions: (Either a ~' b) --=====---==='- .... =.-- Reserved for District Office ======== concur[ ] nonconcur If nonconcur, or (b) from above was selected, a determination of whether the area has an effect must be made prior to authorizati.3n and one of the following statements made: [ ] a, Categorical Exclusions. The environmental impacts of this action do not have significant effects on the quality cf the human environment and therefore are categorically excluded from further NEPA documentation in accordance with the ER 200-2-2: r (Identify I~e actual exclusion) [ onmental Assessment (EA), The impact of this action does not qualify for a CX and/or is not likely to have ~ signit'mant impact on the quality of the human environment to require an environmental impact statement. An EA is required. [ ] c. Environmental Impact Statement (ELS). The impact of this action is considered to have a significant impact on the quali.ty of the human environment.. Art ElS is re(~uired. ~tatemenuuond~ion: / . , __ ~, ~ [ Signature: /~~~~~ Position: (N~I Re~ur~anager) 11 C. Special Conditions 1. The following site specific recommendations are made as limitations, restrictions, safety issues, clearances for power and communication lines over reservoirs (sag height), or conditions to be included in the grant to make the proposed use compatible with the operation of the project: 2. REMARKS - (include any pertinent historical, legal, policy, mission, or controversial factors you are aware of that may affect the proposed use of the property): -' 3. My review of the proposal indicates that the proposal (will, o~ interfere with operation of the project, or with the land use designations and resource ~ objectives set forth in the master plan and operational management plan. 4. Based on the information provided above and my review of the Environmental and Cultural considerations (including the EBS if applicable), I recommend the outgrant be (Approved or Den~ed) Date ( PARK MA~IAGER: 12 # - ! ~ Roads z ~ Proposed Re~res~tion ~~ Proposed WeUand U.S. ARMY ENGINEER DISTRICT EOOSYSTEM RE FORT WORTH CORPS OF ENGINEERS RECOMMENDED P~N ~ORT WORTH. TEXAS LEWlSVlLLE ~KE / / RoagEGEND ~' Railroads / Creeks and Rivers Lakes Greenbelt Corridor ~ 1135 Project Area ~l Greenb~t Co.idor ~ Proposed Clear Clear Creek WRP Lake Lewisville/Lake Ray Roberts Greenbelt Corridor and Project N 5 10 Miles U.S. Army Corps of Engineers 1135 Ecosystem Restoration Project Area Map A(lenda No. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: March 28, 2000 Utility Administration Howard Martin, 349-8232 SUBJECT: Hold a discussion and provide staff direction concerning a sales tax exemption sought by the Robson Development that would exempt state tax on all the equipment purchased for the wastewater treatment plant construction. BACKGROUND: The Robson Development will construct a wastewater treatment plant to serve the needs of their development. This plant facility will be or dedicated to the City of Denton to own and operate. The anticipated construction cost for the initial phase of the treatment facility is $3 million. Robson is requesting a state sales tax exemption on all equipment purchased for the wastewater treatment plant. (See Exhibit I). Robson is seeking the City's execution of an Infrastructure Sales Tax Agreement (ISTA) in order to achieve the sales tax exemption on plant equipment. The City would facilitate the sales tax exemption by acceptance of the purchased equipment prior to installation and operation. Robson, in turn, would agree to indemnify the City against all liabilities. Mike Copeland's legal review of the issues is provided in Exhibit II. Robson estimates that approximately $150,000 to $250,000 could be saved with a state sales tax exemption on the equipment purchases. While Robson was requesting state sales tax relief only, the methodology for sales tax collection would prohibit the state from refunding of the local sales tax portion, as currently done on items purchased within the city. Robson's contention is that the purchase of wastewater treatment plant equipment within the city limits of Denton would not be likely and the resulting local tax revenue loss would be minimal. OPTIONS: 1. Proceed with the approval of an Infrastructure Sales Tax Agreement. 2. Deny the request for a state sales tax exemption. RECOMMENDATION: Staff does not have a formal recommendation at this time. It appears that Robson's request is possible to process and would result in substantial savings for the Robson development and a minimal loss of sale tax revenue to the City. After examining the issues, it appears that the legal opinion does not confirm the validity of Robson's assertion and proposed ISTA and suggests that such a transaction may subject the City to significant risks and possible criticism by the State Comptroller's office. The Robson wastewater treatment facility is substantially different from the "normal" developer constructed and donated infrastructure and may warrant special sales tax relief consideration. However, staff's recommendation relative to the Robson request is dependent on the policy position and level of risk that the City Council establishes as appropriate. PRIOR ACTION REVIEW (COUNCIL, BOARDS, COMMISSIONS No prior action by Council, Boards or Commissions. FISCAL INFORMATION: Robson estimates a $150,000 to $250,000 savings on the purchase of material, supplies and eqnipmcnt associated with the wastewater treatment plant construction. Respectfully submitted, ~n,~A~ies Exhibit I: Exhibit II: Robson's Letter Request Legal Opinion ROBSON DENTON DEVELOPMENT LP 9532 E. Riggs Road Sun Lakes, Arizona 85248 February 24, 2000 Mr. Michael ]ez, City Manager City of Denton 215 E. McKinney Street Denton, Texas 76201 Re: Sales Tax Exemption Dear Mr. ]ez: We have discussed with staff the issue of the sales tax exemption sought by Robson that is allowed under Texas law for the equipment purchased for use at the wastewater treatment plant at the Robson Ranch development. We request that the matter be submitted to the Denton City Council for consideration at the next regularly scheduled meeting of the city council. Sincerely, Jim Poulos ]P/ds cc: Steve Soriano 0223001 .doc 3 EXHIBIT I ATTORNEY/CLIENT CONFIDENTIAL COMMUNICATIONS TO: FROM: SUBJECT: DATE: Jim Coulter, Assistant Director, Wastewater Utility Michael S. Copeland, Jr., Assistant City Attomey Review and Legal Analysis of Proposed Infi'astmcture Sales Tax Agreement Proposed by Robson Denton Development, L.P. in January 2000 [RFLS #000129] February 16, 2000 CONFIDENTIALITY NOTE: This memorandum and any accompanying enclosures are intended as attorney/client communication between the undersigned attorneys and the City of Denton through its duly authorized constituents. This communication is subject to, and is protected from public disclosure by the attorney-client privilege. The addressees and noted copy recipients, acting within their official capacities on behaff of the City of Denton, are the only intended recipients. You are requested to neither divulge the contents of this letter or memorandum to any other person or entity, whether within or without the organization, nor to use this information for personal benefit. [This memorandum revises, and is in lieu of, in substitution for, and supersedes the previous draft memorandum issued to you on January 31, 2000 regarding the foregoing subject matter. Please disregard the previous draft memorandum. I This memorandum is in response to the foregoing legal request that I received on January 19, 2000, which included a City Manager priority designation. You requested that I review the attached two- page draft "Infrastructure Sales Tax Agreement" ("ISTA) submitted to you by Robson Denton Development, L.P. ("Robson"), and to analyze and advise you of its legality. A copy of the ISTA is attached for your convenience. I understand that the ISTA was submitted to the City by Jim Poulos, General Manager of Utilities ("Poulos') of Robson, who offices in Arizona. I understand that the submission was unsolicited on the City's part, and that to date, the City has not encouraged or invited the submission, or related to Poulos that it approves of the submitted ISTA. Before preparing this response to your legal request, I performed the following actions and activities, as I had never before dealt with a request of this particular type by a developer at the City of Denton, or anywhere else: EXHIBIT II February 16, 2000 Page 2 o ° Reviewed the ISTA; Researched the applicable law [including 34 Texas Administrative Code, Section 3.29l "Contractors," and in particular, Section 3.291 (f); Texas Tax Code Section 151.309, and the cases cited thereunder]; Lengthy teleconference with Mr. Poulos on January 21, 2000 to determine Robson's position, desires, and the existence of any legal opinion obtained by Robson fi.om its attorneys on the subject, or any other legal authority that would facilitate the City's review and examination of the ISTA and the applicable law; Interviews with City Staff potentially affected by the proposed ISTA, including the ACM Utilities, the ACM/Finance, the Director of Budget, the Risk Manager, the Purchasing Agent, and the Assistant Director of Wastewater, in order to determine their input, perceived policy issues, and the ultimate impact of the proposed ISTA upon the City fiscally, and otherwise. Prepare punch-list of key points and issues raised during the teleconference with Mr. Poulos and the interviews with City Staff. Telephone conference with Andrew Richardson, Tax Specialist, at the Sales Tax Division of the Texas State Comptroller's Office on January 26, 2000 regarding the Comptroller's present position regarding the applicability of 34 TAC Section 3.291 to the City's fact situation and whether or not the transaction proposed by Robson would pass muster with the Comptroller. I have attached a copy of 34 Texas Administrative Code ("TAC") Section 3.291 "Contractors." This consists of eight pages and is the only law cited by Robson as supporting its request for the City to enter into the proposed ISTA. The particular subsection urged by Mr. Poulos of Robson is 34 TAC Section 3.291(0(1 through 3). Mr. Poulos related to me by phone that he "found" this Texas law. I believe that he is a CPA. Mr. Poulos conveyed to me that Robson does not have any legal opinion supporting the ability of Robson to lawfully proceed under that statutory provision or to enter into the ISTA with the City. I found no applicable reported case law noted under this TAC provision which would provide me with any direction or legal authority. The provisions of 34 TAC Section 3.291(0 are not a picture of clarity. This provision is the exemption fi.om sales tax of certain tangible personal property used to improve real property that will ultimately be dedicated to and accepted by a governmental entity, and requires the satisfaction of several conditions. Basically, the developer must enter into a type of contract with the contractor contemplated by the statutory provision. The contractor then delivers the tangible personal property to be incorporated into the realty to be developed to the developer. Then, under Robson's scenario, Robson, as developer, before incorporating the tangible personal property into the realty, and before it is used by the contractor, the developer must donate the tangible personal property to the City. In the proposed ISTA, Robson, the developer, expects the City to provide it with a statement or agreement that the City will accept the tangible personal property. 5 February 16, 2000 Page 3 The sales tax concept in Texas is such that the end-user of the tangible personal property pays sales tax unless it is an organization or entity (such as a municipal government) that is exempt fi.om sales tax. Section 151.309 of the Texas Tax Code provides in pertinent part that an otherwise taxable item for state sales and use tax purposes is exempted fi'om tax if it is sold to, leased to, ... or consumed by a city government [Section 151.309(5)]. However, the case authority cited under that statutory provision envisions a contract between the prime contractor and the city govemmental entity, and that title of the goods (in our case, the "tangible personal property") passed fi.om the supplier to the prime contractor, and not to the governmental entity. The prime contractor assumes the status of an independent contractor for purposes of sales tax exemption. Sales of tangible personal property fi'om the supplier to Robson's contractor are not exempt, as there is no sale to the government. There is no privity of contract with the governmental entity, the City, which enjoys the exemption established by Section 151.309(5) of the Texas Tax Code. See also, Day & Zimmerman, Inc. v. Calvert (Tex. Sup. Ct. 1975) 519 S.W. 2d 106; certiorari denied at 96 S. Ct. 54, 423 U.S. 832, 46 L. Ed. 2~ 50. In this case, the developer wants the City to sign the ISTA, or a revised/modified ISTA, and deliver it to the developer so that developer's contractor can purchase the tangible personal property to be incorporated into the project without sales tax being imposed. This, of course, lowers the developer's (Robson's) cost by between $150,000 to $ 250,000, according to Mr. Poulos. There would be minimal fiscal impact upon the City in the event that it entered into the ISTA, fi.om a city sales tax standpoint as Mr. Poulos indicated to me that most of the tangible personal property to be incorporated into the project (the construction of a wastewater treatment plant and related infi-astmcture by Robson) will be purchased at locations outside the City, not to deprive the City of sales tax, but because most of the tangible personal property needed for the construction are manufactured and sold elsewhere. Typically, the City constructs a wastewater treatment plant as its own project, and contracts directly with the prime contractor. In that event, the contract price that the City pays to the contractor is split into labor and tangible personal property components. The City would then issue a sales tax exemption certificate to the contractor in the amount of the tangible personal property that would be incorporated into the project. The City benefits from a lower contract price from the contractor because the City is clearly exempt fi'om the state sales tax under the provisions of Section 151.309(5) of the Texas Tax Code. This is a two-party transaction, where the City enjoys pdvity of contract with the contractor, and has control of the project at all times. This is a clean transaction, which undoubtedly passes muster with the State Comptroller's Office in temps of tax exemption. In the transaction proposed by Robson there are three parties involved. Robson, as developer, and its contractor have a separate contract, and so does the City and Robson. Robson seeks to obtain February 16, 2000 Page 4 the City's execution of an ISTA in order to attempt to bootstrap and achieve tax-exemption of the tangible personal property to be later incorporated as infrastructure into the property to be ultimately dedicated to the City for the public use. In Robson's relationship with the City, Robson intends to spend its own money and construct a wastewater treatment plant, which by proposed agreement, it intends to later donate or dedicate to the City. As I understand it, as a quid pro quo for Robson's contribution of the wastewater treatment plant, the City will not collect wastewater impact fees fi.om Robson, and will provide Robson with deferral relief for a reasonably short period fi.om the imposition of some of the City's water impact fees, before the time the wastewater treatment plant is donated to the City and dedicated for public use. By fully cooperating with Robson and reaching an acceptable ISTA, the City will save no additional monies. The City might conceivably lose a small amount of City sales tax revenue. More importantly, the City might also become involved in several areas of risk, to wit: Tort liability respecting personal injury or wrongful death in the event that a person is injured or killed as a result of the tangible personal property while it is "owned" and/or "possessed" by the City (after Robson's donation, but before the tangible personal property is incorporated into the infrastructure by the contractor and dedicated to the City by the developer). Robson is willing to indemnify the City for these types of risk, and backs that indemnity up with a general liability policy with policy limits of not less than $ 3 million. Debts and claims respecting the tangible personal property delivered to and given to the City may also present a problem. In order for the City to even consider entering into an ISTA with Robson, the agreement must provide that the "donation" of the tangible personal property to the City is conditioned upon said property being transferred flee of all debts, liens, and claims, including purchase money debt, as well as other voluntary and involuntary liens, and the like. The possibility of bankruptcy of Robson raises another serious risk. This risk would be the "preferential transfer" or "fraudulent transfer" treatment by a Bankruptcy Court of any transfer without adequate consideration made during the one year prior to bankruptcy filing, or made even before then, if creditors, for value, are defrauded or have their rights diminished or diluted because of the bankruptcy debtor's transfer of tangible personal property to the City by "donation" under the circumstances set forth in the ISTA. Any affected creditor, bankruptcy trustee, or any other party-in-interest, within the meaning of the Bankruptcy Code, has standing to attack such a transfer and seek to set it aside. I am not sure that an agreement or an indemnification regarding the issue of bankruptcy and the adequacy of consideration supporting the "donation" fi'om Robson to the City to cover this risk would be effectual and/or enforceable, either between the parties, or vis-3--vis a bankruptcy estate. 7 February 16, 2000 Page 5 Another area of potential risk pertains to property loss and casualty claims against the City by Robson, its successors, assigns, or any bankruptcy trustee. Once the "donation" of the tangible personal property is complete, with a document being signed manifesting the City's acceptance of the tangible personal property fi.om Robson, and once possession of the pipes, lines, and other materials has been delivered to the property site (owned by Robson), the tangible personal property would remain on Robson's property until it would be installed by the contractor and ultimately dedicated to the City by Robson for public use. This "gap" period, which could be several weeks, or conceivably, a number of months in duration, would present a risk-of-loss that the City would have to deal with. In the event of theft, natural catastrophe, flood, or other casualty, the City, as holder and owner of legal title to the tangible personal property would need to insure against any such loss. Probably a marine floater insurance arrangement would cover this risk of loss. Robson would have an insurable interest as the owner of the realty upon which the tangible personal property is stored, pending its installation as infi.astructure, at which later time said infrastructure would then become a part of the realty. However, Robson would not own legal title to the tangible personal property "donated to" or "possessed by" the City. The marine floater casualty insurance coverage referred to above would cost the City premium dollars. Conceivably, were the City to move forward with the proposed ISTA, then perhaps the ISTA or another agreement could be entered into which would provide for Robson to pay the applicable insurance premiums on the City's coverage during the "gap" period. Another possibility is for the City to take delivery of the tangible personal property on its own grounds or premises, which are under its direct control or security. Still however, there is the possibility of a risk-of-loss in this scenario as well. There is a reasonable probability that the State Comptroller would examine the ISTA transaction, might seek to attack the ISTA if it were not perfectly executed by Robson and its contractor, and then by Robson and the City. The City does not have a great deal of control over the "separated contract" by and between Robson and the contractor. The elements of 34 TAC Section 3.291 (f) require compliance by all three parties to this type of transaction. In the event of Robson and its contractor failing to comply adequately with the narrow exception in Section 3.291(0, the City should reasonably expect an indemnification from Robson, holding the City harmless from any loss or hability in the event that the State Comptroller determines that sales tax was properly due, and not exempted, and that the City might have some degree of responsibility regarding the collection of the tax itself, or perhaps in facilitating the avoidance of sales tax by Robson. Even if the City was able to exact an indemnification agreement with Robson to apply to this type of further risk, its is my assessment that it would make the City appear in a less than favorable light with the State Comptroller in the event the Comptroller determined that sales tax was in fact, due and owing. 8 February 16, 2000 Page 6 As you can see, the usual City/Contractor, two-party "City project" transaction does not involve the quite the same legal risks, entanglements, or complexities that the ISTA proposed transaction does. If the City enters into a modified ISTA with Robson, it will be subject to at least the four risks set forth in the above-numbered paragraphs. As I understand it, to date no other developer has requested the City to enter into an ISTA or similar arrangement. Were the City to proceed with an ISTA with Robson, notwithstanding legal risks, and the four above-noted other elements of risk, then it is possible that a number of other developers would somehow learn of the ISTA vehicle, as well as the City's willingness to enter into such an arrangement with Robson. It is reasonable to assume that these other developers will expect similar treatment and consideration fi.om the City for their projects. At that point, it is forseeable that the City would be involved with a number of three-party arrangements, resulting in more contract administration responsibilities, more monitoring responsibility, more risks as identified above, as well as potentially sacrificing some degree of control over the quality of design and quality of tangible personal property to be installed as the infrastructure. This case is admittedly somewhat unique in scope. Robson adamantly desires to construct the wastewater treatment plant and related infi.astmcture for its own development at a considerable cost. There is also a chance that a request such as this would never surface again. It is conceivable that a developer (not necessarily Robson) might enter into a contract with its contractor for the construction of infi'astructure to be dedicated ultimately to the City for public use, wherein the materials incorporated into the project might be substandard, and the City would have less degree of control over the design and installation of the infrastructure under the ISTA arrangement. On January 26, 2000, I spoke by telephone with Andrew Richardson, Tax Specialist, employed by the Sales Tax Division of the State Comptroller's Office in Austin. After considering the proposed ISTA transaction that I described, Mr. Richardson indicated to me that it would probably be the Comptroller's position that sales tax would be due on the proposed transaction, notwithstanding the provisions of Section 3.291(0. I have thus far been unable to locate any applicable legal authority that expressly legally supports the City entering into and participating in an ISTA transaction for the clear purpose of exempting the state and local sales tax of a developer. However, because of the importance of time regarding the ISTA determination issue, I invited Mr. Poulos of Robson to simplify matters by providing me with a clean legal opinion obtained fi.om Robson's counsel, or some written communication fi.om the Texas State Comptroller's Office addressing the issues. I told him that I would not necessarily rely on such opinion, but that it would be a valuable starting point for me in making my recommendations to the City. I indicated that if his corporation was going to benefit in the range of fi.om $150,000 to $250,000 should the ISTA February 16, 2000 Page 7 vehicle be successful, then shouldn't Robson provide the City that assistance? Mr. Poutos declined to do so. That bhngs me to the two questions: (1) Is Robson aware of any legal basis or authority for their claimed entitlement to the exemption provided in 34 TAC Sec. 3.2917 (2) If this proposed ISTA is lawful and viable, why doesn't Robson advocate the issue with the State Comptroller's office, as it is to Robson's advantage to the sum of up to $250,000 to do so? The next questions that I believe are relevant for your consideration are business and policy issue that I will not express my personal opinion on: (1) What is the upside for the City entering into the proposed ISTA with Robson? (2) Exactly how much posturing and risk is the City prepared to take in order to cooperate with Robson in efforts to secure a moderate sales tax benefit for the benefit of Robson resulting from a claimed exemption from sales tax? (3) Is an "I'm sorry Denton is unable/unwilling to do the present proposed ISTA transaction" response to Robson a deal-killer with Robson; or would it otherwise jeopardize the entire project? In surranary, after examining the law, reviewing the ISTA, and considering the information available to me, and considering the totality of circumstances that I am currently aware of respecting the proposed ISTA transaction with Robson, I am unable to provide you with a "clean" legal opinion conceming the validity of the proposed ISTA and the application of 34 TAC Sec. 3.291 to it. I believe that the applicable law does not support the validity of Robson's assertion and proposed ISTA transaction, and that facially, the provisions of 34 TAC Section 3.291 are insufficient to validate the proposed sequential transactions described above. It is my opinion that the proposed transaction would more than likely not produce the tax exemption sought by Robson, while at the same time, would subject the City to needless scrutiny or criticism by the Comptroller. After completing the above analysis of the present ISTA advocated by Robson, I discussed the transaction with Herb Prouty. I want to point out that it is my belief that the door should still be open to pursue aRematives with Robson, considering the importance of the Robson project to the City Council and the City. There are probably other avenues from which to approach Robson's sales tax exemption issue, which benefit Robson, but probably do not involve as much risk to the City. These are: 10 February 16, 2000 Page 8 (l) There has been no negotiation with Robson's in-house or outside attorneys on the proposed ISTA issue. There is some possibility that a transaction could be structured taking into account Robson's needs and desires in the sales tax exemption/control of design and construction area, while at the same time taking into account the need to address the City's concerns and perceived risks. This opinion has merely analyzed Robson's first dra/~ of what amounts to a legal concept plan. (2) Herb has pointed out to me that a possible transaction to consider is one where the City builds the wastewater treatment plant and related infi'astmcture. The City interfaces with Robson regarding the design and construction of the facilities, but the City bids the project and enters into a contract with the prime contractor who is the successful bidder. In this transaction, the sales tax exemption is assured under existing state law. There would need to be a side agreement by and between the City and Robson that would provide for progress payment reimbursement of the City by Robson during the design and construction period. This financial obligation would need to be well-secured by appropriate bonds, letters of credit, or other methods of assurance of Robson's payment obligation to the City. Last night, the City Council approved an Interlocal Cooperation Agreement between the City and Denton County for mad construction. Apparently, in that agreement, the City is required to construct the road and the County is bound to pay the City. The City/County transaction, in my opinion, is probably distinguishable fi.om the proposed City/County interlocal transaction, as both the City and Robson are not subject to the provisions of the Interlocal Cooperation Act. (3) Of course, the simplest altemative for the design and construction of the wastewater treatment plant and related infi'astmcture in the Robson development is for the City to bid and contract for building the facilities itself, while working hand-in-hand with Robson respecting design, construction, and related issues. This altemative calls for Robson to pay the City all water and wastewater impact fees provided by law. In conclusion, I reiterate that there are, in addition to the legal issues, important risk, liability, business, fiscal, policy, and political issues intertwined with Robson's present ISTA request. I do not, fi.om my position, note any commensurate reward or incentive for the City to enter into the transaction as it is now structured/proposed. Should you have any questions, comments, or additional requests, please drop by or telephone me at -8158. 11 February 16, 2000 Page 9 ,,~/, I [ ' ' ; Michael S.'Copeltisid CCi Michael W. Jez, City Manager Herbert L. Prouty, City Attorney (w/attachments) Howard Martin, ACM/Utilities (w/attachments) Max Blackburn, Risk Manager Tom Shaw, Purchasing Agent Attachments (2) S:\Our Documents\CorrespondenceXMemos\00hq. obson [nlra Sales Tax K - Analysis - Re-issued Memo #2,doc INFRASTRUCTURE SALES TAX AGREEMENT This Agreement is made and entered into this day of , 20,,.00, by ROBSON DENTON DEVELOPMENT, LP. an Arizona limited partnership ("Robson'), and CITY OF DENTON, TEXAS. a Texas municipality (the "City"). RECITALS A. Robson desires to develop a master planned residential community on approximately 3000 acres of real property located in the City of Denton. in Denton C~unty, Texas (the "Development"). B. Robson expects to construct significant amounts of infrastructure in connection with the Development for eventual dedication or conveyance to the City, including but not limited to wastewater treatment facilities, u,'ater and sewer lines, and roadway improvements collectively, "Public Infrastructure"). C. Section 3.291 of Title 34 of the Texas Administrative Code provides that sales tax is due on all tangible personal property used to improve real property belonging to a private party that has been dedicated to and will be accepted by' a governmental entity unless certain conditions are satisfied. One of the conditions is that the construction contract must provide that the private party (i.e. Robson) intends to donate the property to the governmental entity before it is incorporated into the realty or used by the contractor and that the private part~' must provide the contractor with a letter of intent or other document from the governmental enti .ty stating its intent to accept the propen'y. Robson and the City intend for this Agreement to se~e as such document so that tangible personal property incorporated into the Public Infrastructure x``511 be exempt from sales tax. AGREEMENT In consideration of the matters set forth in the Recitals and the covenants and conditions set forth below, the Cit.',' and Robson agree as follows: l. This Agreement confirms that la) Robson intends to donate to the City all tangible personal property to be incorporated into the Public Infrastructure before the personal property is incorporated into the realty or used by the contractor, and that (b) the City intends to accept such donation. This Agreement applies to use tax. as ,,~,ell as sales tax. to the extent that Robson may thereby obtain an exemption from payment of use tax. 2. Robson agrees to indemmt:y, defend and hold harmless the City fi.om and on account of an)' and all claims, demands, liabilities, costs and expenses, including b~t not limited to court courts and reasonable attorneys' fees. which are asserted against, suffered or incurred by the City as a result of the City. 's acceptance of an',', tangible personal property to be incorporated into the Public Infrastructure before the Public Infrastructure to which the tangible personal property wilt be incorporated is dedicated or conveyed to the City. including but not limited to claims which arise as a result of personal injur?' or property damage. In addition. Robson agrees to maintain public liability insurance in an amount of not less than $3.000,000 naming the City as an additional insured with respect to claims made in connection with such tangible personal property. 13 tN %qTNESS WHEREOF. Robson and the Cit? have executed this Agreement as of the date first written above. ROBSON: ROBSON DENTON DEVELOPMENT. LP. an Arizona limited partnership Denton Property Management Company. an Arizona corporation doing business in Texas under the name Robson Denton Management, its General Partner By [ts CITY: CITY OF DENTON. TEXAS, a Texas municipality [ts ATTEST: Its 1¸4 34 TAC § 3.291, Contractors *44838 34 TAC § 3.291 TEXAS ADMINISTRATIVE CODE TITLE 34. PUBLIC FINANCE PART !. COMPTROLLER OF PUBLIC ACCOUNTS CHAPTER 3. TAX ADMINISTRATION SUBCHAPTER O. STATE SALES AND USE TAX Current through December 31, 1998. § 3.291. Contractors (a) Definitions. The following words and te,ms, when used in this section, shall have the following meanings, unless the context clearly mdicates otherwise. (I) Agreed contract price of materials incorporated into the realty--The price specified in the contract for the incorporated materials, i.e., tangible personal property that becomes a part of the real property, plus any additional charges directly attributable to the incorporated materials. For example, profit calculated as a percentage of the cost of materials, cost of transporting the materials, markup, or handling charges related directly to the materials charge are includable in the agreed contract price. A charge calculated as a percentage of the total contract cost will not be considered a part of the material's selling price. The agreed contract price of incorporated materials cannot be less than the price the contractor paid for materials. (2) Consumable items--Tangible personal property, other than machinery and equipment, that is not physically incorporated into the property ora customer and that, after being used for its intended purpose, is substantially used up, or is not retained or reusable by the contractor. (3) Contractor--Any person who builds new improvements to real property or repairs, restores, or remodels residential real property, Pag~l and who, in making the improvement, incorporates tangible personal property into the property being improved. The term includes subcontractors but does not include material men and suppliers. Persons who repair, restore, or remodel nonresidential real property are providing taxable services under §3.357 of this title (relating to Real Property Repair and Remodeling). (4) Improvements to realty--See §3.347 of this title (relating to Improvements to Realty). (5) Lump-sum contract--A contract in which the agreed contract price is one lump-sum amount and in which the charges for incorporated materials are not separate fi.om the charges for skill and labor. Separated invoices issued to the customer will not change a lump- sum contract into a separated contract unless the terms of the contract require separated invoices. *44839 (6) Separated contract--A contract in which the agreed contract price is divided into a separately stated agreed contract price for incorporated materials and a separately stated agreed contract price for skill and labor. If prices of incorporated materials and labor are separately stated, the fact that the charges are added together and a sum total given is irrelevant. Cost-plus contracts are generally regarded as separated contracts. (7) Tangible personal property--See the Tax Code, § 151.009. (b) Tax responsibilities of contractors improving real property belonging to nonexempt customers. (1) Equipment. Tax must be paid by a contractor at the time of purchase on tools, machinery, and equipment used to perform a contract. A contractor must accrue and remit use tax on machinery, tools, and equipment purchased fi.om an out-of-state seller unless Texas use tax was collected by the out-of-state seller. Copyright (c) West Group 1999 No claim to origina! U.S. Govt works 15 34 TAC § 3.291, Contractors (2) Consumable items. Except as provided by subparagraph 03) of this paragraph, tax must be paid by a contractor at the time of purchase on items used to perform a contract which are not physically incorporated into the property of the customer. (A) A contractor may not collect tax from the customer on a charge for consumable items except as provided by subparagraph (B) of this paragraph. (B) A contractor may issue a resale certificate to suppliers in lieu of tax for consumable items, if title to the consumable items transfers to the contractor's customer at the time the contractor takes possession or before, and the consumable items are immediately marked, labeled, or otherwise physically identified as the customer's property, where practicable. The contractor must separately state the charge for these consumable items to the customer and must collect sales tax from the customer unless the customer qualifies for exemption under the Tax Code, § 151.309 or § 151.310. (3) Lump-sum contracts. (A) Contractors performing lump-sum contracts are consumers of all materials, consumable items, and equipment used or incorporated into a customer's property. As a consumer, a contractor must pay tax to suppliers at the time the materials are purchased. If the materials are purchased fi.om an out-of-state seller, a contractor must accrue and remit use tax on the materials unless Texas use tax was collected by the out-of-state seller. A contractor shall not collect tax from a customer on a lump-sum charge or on any portion of the charge. (B) Contractors who, in addition to performing lump-sum contracts, sell taxable items over the counter or who also perform separated contracts, may maintain a tax-free inventory of items held for resale. Items purchased exclusively for resale may be purchased tax free by issuing a resale Copyright (c) West Group 1999 P~e2 certificate to suppliers in lieu of tax. A contractor must hold a sales tax permit to issue a resale certificate, and must collect, report, and remit tax to the comptroller as required by §3.286 of this title (relating to Seller's and Purchaser's Responsibilities) when items purchased for resale are sold. *44840 (C) Persons who resell taxable items as part of taxable services under §3.357 of this title (relating to Real Property Repair and Remodeling) may maintain a tax-free inventory of items held for resale. (D) If the contractor incorporates materials from the resale inventory into a lump-sum contract, the contractor must accrue and remit tax based on the purchase price of the materials. The tax should be rermtted to the comptroller for the reporting period in which the materials were used. A contractor purchasing items specifically for use in a lump- sum contract may not issue resale certificates in lieu of tax for such items. (E) Contractors performing lump-sum contracts for persons having direct payment permits may not accept a direct payment exemption certificate from those persons. When performing lump-sum contracts for a direct payment permit holder, the contractor must pay sales tax to the supplier or accrue and remit sales tax on incorporated materials removed fi.om a tax-free inventory for incorporation into the direct payment pe,',nit holder's realty. Direct payment l~mdt holders cannot authorize the contractor or any other person to purchase any taxable item using theft permit. See §3.288 of this title (relating to Direct Payment Procedures and Qualifications). (4) Separated contracts. (A) Except as otherwise provided in this section, contractors performing separated contracts are considered retailers of all materials physically incorporated into the realty being improved. As a retailer, a contractor must collect tax from the customer No claim to original U.S. Govt. works 16 34 TAC § 3.291, Contractors based upon the agreed contract price of the incorporated materials. (B) Contractors performing separated contracts must hold sales tax permits and collect, report, and remit the tax as required by §3.286 of this title (relating to Seller's and Purchaser's Responsibilities). Contractors purchasing materials specifically for incorporation into realty under separated contracts may issue suppliers a resale certificate in lieu of tax. See §3.285 of this title (relating to Resale Certificate; Sales for Resale). The purchase, rental, or lease of equipment for use in performing a nonexempt contract is subject to tax. Also see paragraph (2)(B) of this subsection. (C) A contractor may maintain an inventory of materials upon which tax was paid to suppliers at the time of purchase. If these materials are incorporated into realty under a separated contract or are sold over the counter, the contractor shall collect tax from the customer based upon the agreed contract Price of the materials. Tax is due and must be remitted to the comptroller on any difference between the price paid by the customer and the price paid by the contractor. See §3.338 of this title (relating to Allowance of Credit for Tax Paid to Suppliers). Page 3 (E) Conmactors performing separated contracts may issue suppliers resale certificates in lieu of tax for taxable services that are resold to the contractor's customer. Examples of taxable services that may be resold are landscaping, surveying, and the final clean-up (janitorial sermces) of the construction site. Contractors may not issue resale certificates for taxable service that the conwactor uses or consumes, such as security services, telecommunication sermces, and daily janitorial services. (5) Contracts versus bids and change orders. For tax purposes, the terms of a contract control over the terms of a bid. For example, if the bid is lump-sum, but the terms of the contract are separated, the contract determines the tax responsibilities of the parties, and the customer is liable for tax on incorporated materials. The terms ora contract also control change orders. If the contract is lump-sum, change orders W~ll be treated as lump-sum even if the change orders show charges for incorporated materials separate from other charges. If the contract is a separated contract, and change orders are for lump-sum amounts, the lump-sum amounts will be treated as though for incorporated materials only unless the contractor can show the portion attributable to labor. *~4841 (D) Contractors performing separated contracts for persons having direct payment permits may accept a direct payment exemption certificate from those persons in lieu of tax for all tangible personal property incorporated into customer's realty. A direct payment exemption certificate may not be accepted for tax liability incurred by the contractor on machinery or equipment rented or leased by the contractor and used in the performance of the contract. See §3.288 of this title (relating to Direct Payment Procedures and Qualifications). Contractors may not accept direct payment exemption certificates in lieu of tax for consumable supplies unless the provisions of paragraph (2)(tl) of this subsection are met. (6) Different types of contracts between contractors and subcontractors. For tax purposes, it is not required that all subcontractors use the same type of contract as the general contractor. For example, a general or prime contract may be lump-sum, while some or all subcontracts may be separated. Each subeontmctor's individual contract governs the subcontractor's tax responsibilities. In the example given, the separated subcontractors would collect sales tax from the general contractor. The general contractor would not collect any tax from the general contractor's customer. In the alternative, if the general or prime contract were a separated contract, while some of the subcontracts were lump-sum, the prime or general contractor would not collect Copyright (c) West Group 1999 No claim to origina! U.S. Govt. works 17 34 TAC § 3,291, Contractors tax from the Prime contractor's customer on those charges from lump*sum subcontractors. (7) Materials provided by customers. A contract may specify that a customer will provide materials and the person performing improvements will provide the skill and labor necessary to perform the contract. Under this type of contract, the person providing the skill and labor will not incur tax liability on the materials. The customer is liable for the tax on the materials. The tax should be paid to the supplier when the materials are purchased. *44842 (8) Noninstalled items. A person who manufactures an item for sale but does not install the item as an improvement to realty is a manufacturer subject to provisions of §3.300 of this title (relating to Manufactunng; Custom Manufacturing; Fabricating; Processing). Example: cabinetmakers or drapery makers who do not affix the cabinets or draperies to realty as a part of a construction contract. (9) Local tax. A contractor's responsibility for local sales and use taxes depends on the type of contract used. See §3.379 of this title (relating to Contractors) and §3.329 of this title (relating to Enterprise Projects). (c) Tax responsibilities of contractors improving real property for school districts and nonprofit and public hospitals. For the purposes of this section, school districts are those defmed by the Education Code, §19.001. Nonprofit hospitals are hospitals licensed under the Health and Safety Code, Chapter 241 or 577. (1) Contractors improving realty for school dis~'icts or nonprofit and public hospitals, should obtain a properly completed exemption certificate to substantiate the exemption. If the validity of the exemption is not clear, a contractor cannot accept the exemption certificate in good faith and should request additional evidence of the exempt status of the organization. A sales tax letter of exemption from the comptroller addressed to an organization is evidence of its exempt status and Page 4 will relieve a contractor from further inqumY, except under the circumstances set out in paragraph (2) of this subsection. If a contractor claims an exemption in lieu of paying tax on a purchase by reason of performing a contract with a school district or a nonprofit or public hospital and the comptroller subsequently determines the organization is not exempt, the contractor will be liable for all taxes, penalties, and interest accruing upon such purchase unless the contractor accepted in good faith a properly completed exemption certificate at the time the contract was entered into. See §3.287 of this title (relating to Exemption Certificates). (2) A prime contract with a private party to improve real properly belonging to an exempt entity, other than those listed in paragraph (1) of this subsection, for the primary use and benefit of the private party or that would benefit the exempt entity is not exempt from sales or use tax. Materials to be incorporated into the realty may be purchased tax free under a separated contract (or under a lump-sum contract with exempt entities listed in paragraph (1) of this subsection) when a prime contractor has a contract with an exempt entity to improve realty for the exempt entity provided that if the exempt entity is listed under the Tax Code, § 151.310(a)(1) or (2), the improvement must be related to the purpose of the organization. *44843 (3) Materials provided by exempt customers. A contract may specify that a customer that is a school district or a nonprofit or public hospital will provide the materials and the contractor will provide the skill and labor necessary to perform the contract. Under this type of contract, the contractor will not incur tax liability on the materials. The customer may issue exemption certificates to suppliers in lieu of tax when purchasing the materials, unless the improvements are to be used in activities unrelated to the activity that qualifies the customer for exemption. If the improvements are to be used in activities unrelated to the activity that qualifies the customer for exemption, the exempt customer must pay tax to suppliers at the time the materials are Copyright (c) West Group 1999 No claim to original U.S. Govt. works 18 34 TAC § 3.291, Contractors P~e$ purchased. See also {}3.322 of this title (relating to Exempt Organizations). (4) Transactions exempt from sales and use taxes include the purchase, rental, or lease by a contractor of all materials, consumable items, equipment, or other taxable items incorporated into the property being improved or used in the performance of the contract with a school district or nonprofit or public hospital. (5) An exemption certificate may be issued to suppliers for the purchase, rental, or lease by a contractor of those items identified in paragraph (4) of this subsection and must identify the exempt entity and the project for which the equipment, materials, and supplies are being purchased, leased, or rented. See §3.287 of this title (relating to Exemption Certificates). (d) Uses of equipment; tax due; method of computation. (1) Purchase of equipment. Contractors improving realty for school districts or nonprofit or public hospitals may purchase equipment from suppliers tax free by issuing an exemption certificate as described in subsection (c)(5) of this section in lieu of paying sales or use tax. When equipment is used on a job other than as described in subsection (c)(4) of this section, tax should be computed using either the specific identification method or the aggregate method described in paragraphs (9) and (10) of this subsection. (2) Refund or credit for tax paid. A contractor purchasing equipment for use in the performance of a contract with a customer other than a school district or a nonprofit or public hospital must pay sales or use tax to the supplier at the time of purchase or, in the case ora direct payment permit holder, accrue the tax on the direct payment return. If at a later date the equipment is used on a job as described in subsection (c)(4) of this section, the contractor may obtain a refund or credit for sales tax directly from the state only by obtaining a written assignment of the right to the refund from the supplier to whom the tax was paid. Direct payment permit holders may take credit on subsequent returns. (3) Computation of credit. If an assignment is received and if the contractor's records are accurate and complete as required by this subsection, credit will be allowed for equipment purchased for use on a taxable job and subsequently used on an exempt job. The credit should be computed using either the specific identification method or the aggregate method described in paragraphs (9) and (10) of this subsection. *44844 (4) Consumable items and supplies. If a contractor purchases, rents, or leases materials or supplies tax flee for use in performing a contract with a school district or a nonprofit or public hospital and uses the items in some manner or for some purpose other than as described in subsection (c)(4) of this section, the contractor is, at the time of the nonexempt use, liable for tax based upon the purchase price of the items. The tax should be reported and remitted to the comptroller for the reporting period in which the taxable use occurred. For local tax responsibilities, see §3.377 and §3.427 of this title (relating to Divergent Use of a Direct Payment, Resale, or Exemption Certificate; Divergent Use of a Direct Payment, Resale, or Exemption Certificate). (5) Equipment. Contractors must select either the specific identification method or the aggregate method to obtain credit or to report tax on equipment use. The methods may not be used interchangeably and permission to change methods must be requested in writing from the comptroller at least 45 days before the effective date of the change. Such permission will only be granted once each fiscal year and will not be granted retroactively. Contractors who perform contracts to improve realty in other states may not use the aggregate method. (6) Failure to elect method. A contractor who fails to elect either the specific identification or aggregate method will be presumed to have Copyright (c) West Group 1999 No claim to original U.S. Govt. works 19 34 TAC § 3.291, Contractors chosen the aggregate method. (7) Four-year statute of limitations. No tax will be assessed on equipment purchased tax free if the use in performing a nonexempt contract occurs more than four years from the date of purchase. No credit for tax paid will be allowed for a period of exempt use occumng more than four years from the date of purchase. If the equipment was purchased out of state, the four- year period begins when the equipment enters Texas. See §3.346 of this title (relating to Use Tax) for information on tax due on equipment purchased out of state and brought into Texas for use. (8) Repairs to equipment. (A) Repair, replacement parts, and third-party repair labor which are capitalized and depreciated for federal income tax purposes must be handled in the same manner as the equipment on which they are placed. The capitalized repair, replacement parts, and third- party labor may be treated as if it were a separate piece of equipment and depreciated over its own four-year period. A shorter period may be used if the item's useful lite is less than four years. (B) Repair, replacement parts, and third-party labor which are expensed are not depreciated. Tax is due at the time of purchase if the third- party labor and parts are purchased while the equipment is on a nonexempt job. Tax is not due if the parts and labor are purchased while the equipment is on an exempt job. In situations where the contractor takes equipment off the job to repair it before sending it to another job, the contractor may attribute the repairs to the job from which the equipment came or to the job to which the equipment is going. The contractor must treat these repairs consistently. *44845 (9) reporting tax paid. Specific identification method of due or obtaining credit for tax (A) To qualify for exemption from tax on equipment claimed to have been used in the performance of exempt contracts using the specific identification method, a contractor must keep records which clearly substantiate such exempt use. The records must identify the item claimed to be exempt, and designate each job upon which it has been used. To qualify for a partial exemption from tax on equipment claimed to have been used on both exempt and nonexempt jobs, the records must identify the equipment, designate each job upon which it has been used, and indicate the date of use and the length of time the equipment was used on each exempt or nonexempt job. Contracts, job specifications prepared for bids, or other estimates are not acceptable records of the use of equipment. Refund requests based on samples are not acceptable. Tax is due on the full purchase price of the equipment unless these records are maintained. (B) Equipment purchased for use on an exempt job and subsequently used on a nonexempt job is subject to tax for the period of nonexempt use. Credit may be claimed for tax paid on equipment purchased for use on a nonexempt job and later used on an exempt job for the period of exempt use. The amount of tax or credit due will be based on the equipment's value, as dete,minod by straight line depreciation for a period of four years from the date of purchase, during the period of nonexempt or exempt use. A shorter period may be used if the equipment's useful life is less than four years. (C) The time equipment is in storage is calculated as taxable or exempt use in the same proportion that the equipment is used on taxable and exempt jobs. Storage time for equipment that is only used on exempt jobs is treated as an exempt use. (10) Aggregate method of reporting tax due or obtaining credit for tax paid. (A) The aggregate method is based on the assumption that all equipment is used equally Copyright (c) West Group 1999 No claim to original U.S. Govt. works 0 34 TAC § 3.291, Contractors on all jobs. The contractor must keep verifiable records which substantiate the progress or other contract billings for each contract, the exempt or nonexempt status of the entity for which the contract is performed, and the location of the job site. The records concerning location must include whether or not the job site is within a taxing city or metropolitan transit authority. (B) Progress or other contract billings for nonexempt contracts must be totaled for the previous fiscal year and divided by progress or other contract billings for all contracts for the previous fiscal year. '44846 (C) Progress or other contract billings for exempt contracts must be totaled for the previous fiscal year and divided by progress or other contract billings for all contracts dUrmg the previous fiscal year. (D) The total purchase Price of all equipment on which an exemption certificate was issued should be totaled and divided by the number of report periods in four years (16 if a quarterly filer, 48 if a monthly filer, four if a yearly filer). If less than four years, the equipment's actual life may be used. This amount should be multiplied by the percentage obtained in subparagraph (B) of this paragraph to obtain the amount subject to tax for the report period. (E) The total purchase price of all equipment on which tax was paid to the supplier should be totaled and divided by the number of report periods in four years. If less than four years, the equipment's actual life may be used. This amount should be multiplied by the percentage obtained in subparagraph (C) of this paragraph to determine the amount subject to credit for the return period. (F) The amount obtained in subparagraph (E) of this paragraph should be subtracted from the amount obtained in subparagraph (D) of this paragraph to deter'mine the net amount subject to tax or the net amount subject to credit for the report period. Page 7 (G) Equipment purchased during the fiscal year must be added to the aggregate total beginning with the report period in which it was purchased. Each piece of equipment will remain in the aggregate total for a period of four years from the date of purchase. If a piece of equipment has an actual useful life of less than four years, the actual useful life may be used. (e) Tax responsibilities of contractors and subcontractors improving real property for organizations listed under the Tax Code, § 151.309 and §151.310, other than school districts and nonprofit hospitals. (1) Consumable items and equipment. See subsection (b)(1) and (2) of this section. (2) Materials incorporated into the property of the customer by lump-sum contractors and subcontractors. See subsection (b)(2)(A) of this section. A lump-sum contractor may not issue exemption certificates to suppliers nor accept an exemption certificate in lieu of tax from organizations listed under the Tax Code, § 151.309 or §151.310. (3) Material incorporated into the property of the customer by separated contractors and subcontractors. A resale certificate may be issued to suppliers by separated contractors and subcontractors for those items incorporated into the property being improved. The contractor may then accept an exemption certificate in lieu of tax for those incorporated materials sold under separated contracts to organizations listed under the Tax Code, §151.310. Contractors performing separated contracts for organizations listed under the Tax Code, §151.309, must have signed contracts with the government agency, official goverranent purchase vouchers, or an exemption certificate signed by the government agency. *44847 (4) Separated contracts that benefit private parties. See subsection (eX2) of this SeCtiOn. Copyright (c) West Group 1999 No claim to original U.S. Govt. works 34 TAC § 3.291, Contractors (5) Materials provided by organizations listed under the Tax Code, §151.309 or §151.310. See subsection (c)(3) of this section. (f) Development work. For the purposes of this subsection, development work means improving real property for a private party that will ultimately be dedicated to and accepted by a governmental entity. Sales tax is due on all tangible personal property used to improve real property belonging to a private party that has been dedicated to and will be accepted by a governmental entity unless: (1) the contract between the contractor and the private party is a separated contract. See subsection (b) of this section for a discussion of lump-sum and separated contracts; (2) the contract provides that title to the materials used to perform the contract passes to the private party at the time the materials are delivered to the job site and before they are incorporated into the realty or used by either the contractor or the private party; and (3) the contract provides that the private party intends to donate the property to the governmental entity before it is incorporated into the realty or used by the contractor. The private party must provide the contractor with a letter of intent or other document fi.om the governmental entity stating its intent to accept Page 8 the property. Authority: The provisions of this ~3.291 issued under Acts /961. 57th Leg., Ist CS., p. 71, ch. 24. ,4rticle [, effective Novernber 7, 196 I. as amended (Texas lax. Gen., ,4rticle 20.11(,4)). Source. The provisions of this §3.291 adopted to be effective January I, 1976: amended to be effective November 28. 1976. I TexReg 3248.. amended to be effective July 1, 1980, 5 17exReg 2401. amended to be effective December 31. 1980. $ TexReg 4991. amended to be effective July 13. /983, 8 TexReg 2250: amended to be effective November lO. 1986. I1 TexReg 4430, amended to be effective July 23, 1992, 17 TexReg 4955. REFERENCES Cross References: This Section cited in 34 TAC §3.287, (relating to Exemption Certificates); 34 TAC §3.288, (relating to Direct Payment Procedures and Qualifications); 34 TAC §3.292, (relating to Repatr, Remodeling, Maintenance, and Restoration of Tangible Personal Property); 34 TAC §3.294, (relating to Rental and Lea.se of Tangible Personal Property); 34 TAC §3.300, (relating to Manufacturing; Custom Manufacmnng; Fabricating; Processing); 34 TAC §3.306, (relating to Sales o£ Portable Buildings, Prefabricated Buildings, and Ready-Built Homes); 34 TAC §3.310, (relating to Laundry, Cleaning, and Garment Services): 34 TAC §3.322, (relating to Exempt Organizations); 34 TAC §3.334, (relating to Monument Builders); 34 TAC §3.338, (relating to Allowance of Credit for Tax Paid to Suppliers); 34 TAC § 3.344, (relating to Telecommunications S~rvices); 34 TAC §3.346, (relating to Use Tax); 34 TAC §3.357, (relating to Labor Relating to Nonresidential Real Prol:~"rty RePmr, Remodeling, Rextoration, Maintenance, New Construction, and Residential ); 34 TAC §3.379, (relating to Contractors); 34 TAC §3.429, (relanng to Contractors). Copyright (c) West Group 1999 No claim to original U.S. Govt. work~ 22, Agenda No. Agenda Item AGENDA INFORMATION SHEET AGENDA DATE: March 28th, 2000 DEPARTMENT: CMfDCM]ACM: Planning & Develo~e~t Department Dave Hill, 349-8314 ~ ~t~' SUBJECT Receive a report, hold a discussion, and give staff direction regarding wireless telecommunications facilities regulations. BACKGROUND The City of Denton's current regulations were written for older technology and do not adequately respond to the new age of wireless telecommunication services. The Zoning Code has an existing land use category of "Radio, Television or Microwave Towers" which is defined as: "..structures supporting antennas for transmitting or receiving any portion of the radio spectrum, but excluding noncommercial antenna installations for home use of radio or televisions." Under this definition, towers, including cellular towers, are regulated by zoning district as permitted uses (denoted by X) or special uses (denoted by S) based on the following table: CITY OF DENTON CODE OF ORDINANCES SECTION 35-77 I). UTILITY, ACCESSORY INCIDENTAL USES ~IO AND TV OR MICROWA~ rOaR Based on this table, towers are not allowed in the Parking District (P) or Outdoor Amusement and Recreation (OAR) zoning districts. Further, the current regulations do not make provisions for the majority of wireless telecommunication devices which are antennas. Advancements in technology have created new services and devices that are generally described under the broad category of wireless telecommunication services. Specifically, new types of service such as cellular phone, personal communication services (PCS), paging services, and digital television were not contemplated when the current regulations were adopted. The City therefore, at a minimum, needs to update the current regulations to address these new types of service and devices. Possibly the most central issue to wireless telecommunication regulation relates to cellular phone towers or antennas. The expanding number of carriers and the proliferation of towers is a growing concern for many communities. The visual impact of so many towers is the primary reason that communities are increasingly regulating wireless communications facilities. The location and placement of cell towers, however, can be regulated by local governments. The federal Telecommunications Act of 1996 regulates the use of cellular service including the provision of towers to provide such service. The North Texas Council of Governments (NTCOG) model ordinance for wireless telecommunication facilities (attached) describe five general provisions of the Telecommunications Act: 1. Cities have local authority over "placement, construction and modification" of cellular telephone facilities and other personal wireless telecommunication service facilities. 2. Regulations "shall not unreasonably discriminate among providers of functionally equivalent services." 3. Regulations "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 4. "Denial shall be in writing and supported by substantial evidence." o Cities may not "regulate the placement, construction and modification of personal wireless service facilities on the basis of environmental or radio frequency emissions to the extent that such facilities comply with the Federal Communication Commissions regulations concerning such emissions." In addition, the use of safety lights is within the jurisdiction of the FAA for towers over 125 feet in height. The attached model ordinance provides a framework that staff would propose to use in updating our current regulations. The ordinance is a comprehensive document that covers the wide range of devices used for wireless telecommunications. The major initiatives contained in the model ordinance are: · Provides new definitions and terms to better describe current technology. · Provides new standards that minimize the visual impact by encouraging stealth designs and co-location. · Requires a "Master Antenna Plan" to be submitted by each carder. The ordinance contains the framework to allow the City to determine in which districts the towers or antennas can be located by right or by Special Use. It does not allow towers or antennas in Historic or Residential Districts unless they are effectively camouflaged. Accessory buildings are required to be fenced and screened from public rights-or-way or residential districts. Finally, a minimum spacing requirement is provided for towers over 180 feet tall. An additional benefit to using the model ordinance for NTCOG is that it has already received input from the wireless industry. Using this ordinance would allow the City to move forward in an expedited manner in the adoption process. OPTIONS The City could develop either a more restrictive or less restrictive ordinance. ordinance is used as the starting point, the City has to determine: If the NTCOG model · What districts should allow towers and antennas by right? · What districts should allow towers and antennas by Special Use? · What districts should allow camouflaged towers and antennas by right? · Should the City regulate small dish antennas? RECOMMENDATION 1. Draft an ordinance based on the NTCOG model ordinance and bring back to City Council at a worksession for discussion and direction. 2. Draft an ordinance based on the NTCOG model ordinance and begin adoption process by scheduling public meetings, Planning and Zoning Commission review and recommendation, and bring to City Council for adoption. 3. Detemfine to not pursue a revised ordinance. 4. Conduct further research and bring back to City Council at a worksession for discussion and direction. ESTIMATED PROJECT SCHEDULE None. PRIOR ACTION/REVIEW None. FISCAL INFORMATION No fiscal impact is anticipated. ATTACHMENTS 1. NTCOG Model Ordinance Respectfully submitted: Douglas Powell, AICP Director of Planning and Development ATTACHMENT 1 North Texas Council of Governments Model Ordinance Section 00-0000 Wireless Telecommunlcations Facilitles The purpose of this Section is to establish guidelines regulating the location of telecommunication towers and antennas with the objective of minimizing their number, to protect and promote public safety, and to mitigate any adverse visual impacts on the community while promoting the provision of telecommunications service to the public. The regulations contained in this ordinance have been developed under the following general guidelines as provided in the federal Telecommunications Act of 1996:~ so Cities have local authority over ~placement, construction and modification" of cellular telephone facilities and other personal wireless telecommunication service facilities. bo Regulations "shall among providers services." not unreasonably discriminate of functionally equivalent Co Regulations "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." "Denial shall be in writing and supported by substantial evidence." eo Cities may not "regulate the placement, construction and modification of personal wireless service facilities on the basis of environmental or radio frequency emissions to the extent that such facilities comply with the Federal Communication Commissions regulations concerning such emissions." NoKwi~h~Kanding any o~h~r provision of this ordinance, telecommunications towers and antennas, when permitted by federal law and the laws of the State of Texas, shall be regulated and governed by the following use regulations and requirements. A. Definitions Alternative Mounting Structure. A man made tree, clock tower, church steeple, bell tower, utility pole, light standard, identification pylon, flagpole, or similar structure, designed to support and camouflage or conceal the presence of telecommunications antennas. Antenna. A structure or device used to collect or radiate electromagnetic waves, including directional antennas, such as panels, wireless cable and satellite dishes, and omni-directional antennas, such as whips, but not including satellite earth stations. Antenna Array. An arrangement of antennas and their supporting structure. Antenna, Dish. A parabolic or bowl shaped device that receives and/or transmits signals in a specific directional pattern. Antenna, Panel. An antenna which receives and/or transmits signals in a directional pattern. Antenna, Stealth. A telecommunications antenna that is effectively camouflaged or concealed from view. Antenna, Telecommunications. An antenna used to provide a telecommunications service. This excludes lightning rods, private mobile radio systems, amateur radio antennas less than 50 feet(15 meters) in height and whip antennas less than 4 inches(10 cm) in diameter and less than 10 feet(3 meters) in height. Antenna, Whip. An omni-directional dipole antenna of cylindrical shape which is no more than 6 inches(15 cm) in diameter. Co-location. A single telecommunications tower and/or site used by more than one telecommunications service provider. EIA-222. Electronics "Structural Standards Support Structures." Industries Association Standard 222, for Steel Antenna Towers and Antennas Identification Pylon. solely of a single development. A permanent ground mounted sign consisting monolithic structure used to identify a Structure. An object, including a mobile object, constructed or installed by man, including, but not limited to, buildings, poles, water towers, cranes, smokestacks, earth formations and overhead transmission lines. Telecommunications. The transmission, between or among points specified by the user, of audio and/or visual information of the user's choosing, without change in the form or content of the information as sent and received. Telecommunications Service. The offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. Tower, Electric Transmission. A self supporting structure in excess of 50 feet(15 meters) in height designed to support high voltage electric lines. This does not include local utility or distribution poles (with or without transformers) designed to provide electric service to individual customers. Tower, Guyed. Any telecommunications tower supported in whole or in part by cables anchored to the ground. Tower, Height. The distance measured from grade to the highest point of any and all components of the structure, including antennas, hazard lighting, and other appurtenances, if any. Tower, Monopole. A self-supporting telecommunications tower which consists of a single vertical pole fixed into the ground and/or attached to a foundation. Tower, Self-supporting Lattice. A telecommunications tower which consists of an open network of metal braces forming a tower which is usually triangular or square in cross-section. Tower, Telecommunications. A self-supporting or guyed structure more than twenty feet(6 meters) in height, built primarily to support one or more telecommunications antennas. B. General Provisions Applications - Ail applications for rezoning or a Special Use Permit (SUP) for a telecommunications tower, antenna, or other facility to provide a telecommunications service shall include a completed supplemental information form provided by the City regarding said facilities. o Platted Lots Unless an exception is granted by the Planning and Zoning Commission, telecommunications facilities requiring rezoning or a Special Use Permit (SUP), including towers and related equipment buildings, shall be located on a platted lot.2 o Technical Assistance When a rezoning or SUP is required to comply with the provisions of this section, and when the technical information provided by the applicant is beyond the technical capacity of city staff to review, the applicant, in addition to the usual application fee, shall reimburse the City for the actual cost to the City for the services of a technical expert to review the application and/or information supplement, up to a maximum of $5000 dollars. Pre-application Meetings - Prior to leasing or purchasing facilities, the telecommunications service provider is encouraged to meet with the Director of Planning or his/her designee to determine if the location will require a special use permit or other approvals, and to review the merits of potential locations. Master Antenna Plan - To facilitate co-location and coordination of telecommunication sites, the city shall, within 30 days of its effective date, notify the providers of telecommunications services, as that term is defined by federal law, of the enactment of this ordinance. Said providers shall, within 90 days of the date of such notice, provide the City with their respective master antenna plans. Said plans shall include detailed maps, showing the locations and characteristics of all telecommunications towers and antennas serving any portion of the City and indicating coverage areas for current and, to the extent possible, future telecommunications towers and antennas. Providers shall also provide the City with any updates to the above documents within 90 days of their creation.3 Ce Telecommunications Tower Standards 1. Applicable Federal and State Standards Ail telecommunications towers and antennas shall be erected and operated in compliance with current Federal Communication Commission (FCC) and Federal Aviation Administration (FAA) rules and regulations and other applicable federal, state, and local standards. 2 o Structural Standards - Telecommunications tower structures must conform to the most current revision of EIA 222 standards. Guyed telecommunications towers shall be designed and located such that if the structure should fall it will avoid habitable structures and public streets. Co-location Towers shall be designed and built to accommodate a minimum of two cellular or PCS providers, if over 75 feet (23 meters) in height. The owner of the tower must certify to the City that the tower is available for use by other telecommunications service providers on a reasonable and nondiscriminatory basis. Fencinq - Security fencing, if installed, shall be by a wrought iron or steel chain link fence with evergreen hedge, or a masonry wall, each not less than 6 feet(1.8 meters) in height. The exterior of equipment buildings and/or metal equipment cabinets visible from residential areas or public rights-of-way must have a neutral aggregate finish or be painted to reflect the color and character of adjoining structures or blend with adjacent landscaping and other surroundings. 5 o Setbacks - Ail telecommunication towers as well as guys and guy anchors shall be located within the buildable area of the lot and not within the front, rear, or sideyard building setbacks. Telecommunication towers in excess of 400 feet(120 meters) in height shall be set back a minimum of 2600 feet(800 meters) from the o 7 o o right-of-way of all controlled access federal and state roadways designated as freeways to provide unobstructed flight paths for helicopters. Siqnaqe Except as otherwise permitted in this ordinance, no signage, lettering, symbols, images, or trademarks in excess of 200 square inches(1290 square cm) shall be placed on or affixed to any part of a telecommunications tower, antenna, antenna array, equipment building, or security fencing other than as required by FCC regulations or other applicable law. Liqhtinq - Except as otherwise permitted in this ordinance, no signals, lights or illumination of any kind shall be permitted on or directed toward any tower unless required by the FCC, the FAA or other appropriate public authority. Abandonment In the event the use of any Wireless Communication Facility, which would include any telecommunications tower or other antenna support structure, has been discontinued for a period of 360 days, the antenna support structure shall be deemed to be abandoned. Determination of the date of abandonment shall be made by the Building Official who shall have the right to request documentation from the owner/operator regarding the issue of usage. Upon the determination of abandonment, the owner/operator of the antenna support structure shall remove same within 90 days of receipt of notice from the building official notifying the owner/operator of such abandonment. If said antenna support structure is not removed within 90 days, the Building Official may cause it to be removed at the owners expense. Do Tower location Standards Historic/Cultural - Except for compatible alternative mounting structures that effectively camouflage or conceal the presence of telecommunications antennas, telecommunications facilities should not be located on or within 300 feet(90 meters)of property zoned historic or property included in a national or local historic o o district. In addition, Said facilities should, wherever possible, be located so as to ensure that historic or culturally significant vistas, and landscapes are protected and that the views of and vistas from architecturally and/or historically significant structures are not impaired or diminished. Residential Zoning Except as otherwise provided in this ordinance, telecommunications towers are not permitted in any residential zoning district and must be a minimum of a 3 to 1 distance to height ratio from a single family residential district and 1 to 1 distance to height ratio from a multifamily district. Towers Permitted by Right Free standing monopole telecommunications towers 85 feet(26 meters) or less in height are permitted in the non-residential districts indicated in Article "X" of this ordinance.~ Towers Requiring a Special Use Pex~it(SUP) - Except as otherwise provided in this ordinance, telecommunication towers in excess of 50 feet{15 meters) in height and monopole towers in excess of 85 feet(26 meters) in height are permitted in the non-residential districts, indicated in Article mX" of this ordinance with a Special Use Permit (SUP). Tower Spacing - Any new telecommunications tower in excess of 180 feet(55 meters) in height must be located a minimum of 1 mile(1.6 km) from any existing tower in excess of 180 feet(55 meters) in height.5 Alternative Mounting Structures so New Alternative Mounting Structures 100 feet(30 meters) or less in height are permitted, by right, in the non-residential districts indicated in Article ~X" of this ordinance. New Alternative Mounting Structures in excess of 100 feet(30 meters) in height are permitted in the non-residential districts indicated in Article ~X" of this ordinance with a Special Use Permit (SUP). Co Ail new Alternative Mounting Structures located in the residential zoning districts indicated in Article ~X" of this ordinance shall require a Special Use Permit (SUP). Alternative Mounting Structures must be similar in color, scale and character to adjoining buildings or structures or blend with the landscaping and other surroundings immediately adjacent to them so as to generally avoid the creation of unique visual objects that stand out in the environment. Antenna Mountinq Standards The purpose of this section is to promote public safety and maintain order and harmony within the City's business, cultural and residential districts by restricting the size and location of telecommunication antennas. The objective is to avoid the creation of visual distractions, prevent obstructions to the view of pedestrians and motorists on public thoroughfares, and to insure the structural integrity of supporting structures.6 1. Whip and Panel Antenna Mountina Standards - so Individual telecommunications antennas are allowed on existing electric utility poles, light standards, and telecommunication towers in excess of 40 feet(12 meters) in height, provided that the total length of any antenna does not exceed 15 percent of the height of the existing structure. The height of a telecommunications tower is determined by the highest point of any and all components of the structure, including antennas. Telecommunications antennas and arrays are allowed by right on existing electric transmission towers. C · Existing structures in excess of 50 feet(15 meters) in height may, as a matter of right, be rebuilt, if necessary, to support or contain a new antenna, provided that the new structure is the same height and substantially the same in appearance as the structure it replaces. 2 o dj Panel antennas which do not extend above the structure, or whip antennas 15 feet(4.5 meters) or less in height, are permitted on conforming billboard structures.~ eo Building mounted panel antennas are permitted on non-residential buildings and multifamily dwellings in all zoning districts, provided that they are mounted flush with the exterior of the building and that they do not project above the roof line nor more than 30 inches(75 cm) from the surface of the building to which they are attached. The antenna's appearance shall be such that its color and texture blends with the surrounding surface of the building. f o Whip antennas are permitted on non-residential buildings and multifamily dwellings in all zoning districts, provided that the total length of said Whip antennas, regardless of mounting method or location, does not exceed 15 percent of the height of the existing building. go Only one building/roof mounted antenna support structure, less than 100 square feet(9 square meters) in area, is permitted per 5000 square feet(450 square meters) of building floor area. Dish Antenna Mounting Standards - so Dish antennas, shall not be permitted in any front setback area or sideyard setback adjacent to any roadway. bo Ground mounted dish antennas in excess of five feet(1.5 meters) in height shall be screened from roadways and adjacent property by a minimum 6 foot(1.8 meter) high screening fence, evergreen hedge, or masonry wall. Dish antennas in excess of 10 feet(3 meters) in height, in any position, or more than 3 meters in diameter, shall not be permitted in any residential zoning district. do So Building/roof mounted dish antennas one(l) meter or less in diameter, are permitted in all zoning districts indicated in Article ~X" of this ordinance. Building/roof mounted dish antennas 2 meters or less in diameter, are permitted on all buildings in excess of 5000 square feet(450 square meters) of building floor area in the non-residential districts indicated in Article ~X" of this ordinance. Only one building/roof mounted dish antenna, 2 meters or less in diameter, is permitted per 5000 square feet(450 square meters) of building floor area on non-residential buildings and on multi- family dwellings in the residential zoning districts indicated in Article ~X" of this ordinance. Building/roof mounted dish antennas in excess of 2 meters in diameter, may be permitted on buildings in excess of 100,000 square feet(9,000 square meters) of building floor area in the non- residential districts indicated in Article "X" of this ordinance with an SUP. Building/roof mounted dish antennas in excess of one(l) meter in diameter, in residential zoning districts shall be painted to have an appearance that blends with the building on which they are located or be located so that they are not visible from any adjacent roadway. Building/roof mounted dish antennas in excess of 2 meters in diameter, in non-residential districts shall be painted or screened with enclosures so as to have an appearance that blends with the building on which they are located or be located so that they are not visible from any adjacent roadway. 10 3. Structural Certification - so Prior to the installation of any building/roof mounted telecommunications antenna, antenna array or support structure the City's Building Official shall be provided with an engineer's certification that the structure will support and not be adversely affected by the proposed antenna and associated equipment. F. Appeal Any entity that desires to erect or utilize telecommunication facilities that wishes to present evidence that such entity would be limited by the current ordinances or regulations of the City dealing with zoning and land use may apply for such use under this section. The City Council shall, upon a showing that strict application of the regulations would prohibit or have the effect of prohibiting personal wireless service, as defined by federal law, modify the subject regulations, consistent with the spirit and intent of this chapter and section, to the extent necessary to prevent the prohibition. G. Violation Deemed Nuisance In addition to the penalties provided in this code, any violation of this subchapter is hereby declared to be a nuisance. In addition to any other relief provided by this subchapter, the city may apply to a court of competent jurisdiction for an injunction to prohibit the continuation of any violation of this article, and other available relief. 11 Notes to Cities: ~Inclusion is optional depending upon local legal review, but it helps in public hearings to recite the "gamerules." 2This paragraph is not intended to require any revision or amendment to an existing platted lot in order to accommodate the location of a telecommunication facility. In addition, an exception to the platting requirement may be granted in agricultural zoning districts or where the platting of vacant land for a tower would create problems in the future platting of property and where the dedication of rights-of- way or easements have already been accomplished. 3If information is submitted by the telecommunications providers which is claimed to be proprietary, the City Attorney should be consulted prior to releasing such information to others. Proprietary information is protected from disclosure by the Texas Public Information Act. 4Article "X" refers to the standard use tables of the zoning ordinance which identify those uses allowed in particular zoning districts. 5Tower separation can range from no spacing requirement to as much as five miles, no matter what the height. It should be noted, however, that this provision would preclude clustering of towers in areas where they would not be objectionable. It may be wise to designate areas where this requirement would not apply. 6This section includes ~satellite dish antennas." A community may want to include other provisions already contained in their current code of ordinances. It should be noted that current FCC Regulations limit the restrictions a city may place on satellite dishes. 7Legal non-conforming signs are excluded so as to avoid any complications that might interfere with the eventual abatement of such signs. Some cities may decide that reducing the need for new telecommunications towers, by making available as many alternative opportunities as possible, overrides this concern. These cities may decide to allow antennas on both conforming and legal non- conforming signs. SUMMARY TABLE Telecommunication Facility Type Non-Residential ResidentialHistoric/Cultural Ref. New Lattice, Other Towers 0 to 50 feet Yes No No D.4 over 50 feet SUP No No D.4 New Monopole Tower 0 to 85 feet Yes No No D.3 over 85 feet SUP No No D.4 Alternative Mounting Structures D.6.a 0 to 100 feet Yes SUP Stealth over 100 feet SUP SUP Stealth D.6.b Antenna Only Mountings Electric Transmission Towers Yes Yes Stealth E. 1 .b Existing Telecom Towers over 40 feet Yes Yes Stealth E.l.a Utility Poles over 40 feet Yes Yes Stealth E. 1 .a Light Poles over 40 feet Yes Yes Stealth E.1 .a Conforming Billboards Yes Yes Stealth E.1 .d Building Mounted Panels Stealth Stealth* Stealth E.l.e Building Mounted Whips Yes Yes* Stealth E.l.f Roof Mounted Arrays Yes** Yes** Stealth E. 1 .g Dish Antenna Mountings Building/Roof Mounted under lm dia. Yes Yes Stealth E.2.d Building/Roof Mounted under 2m dia. Yes** Yes* Stealth E.2.f Building/Roof Mounted over 2m dia. Yes*** No Stealth E.2.g Ground Mounted under 3m dia. Yes Yes Stealth E.2.c Ground Mounted over 3m dia. Yes No Stealth =_.2.c Notes: * Non-Residential and Multi-Family Structures Only **Non-Residential Structures in excess of 5000 sq. ft of floor area *** Non-Residential Structures in excess of 100,000 sq. ft. of floor area 13 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET March 28, 2000 Legal Department Herbert L. Prouty, City Attorney Agendaltem' <:~<'.,~--~/ SUBJECT - Consider adoption of an ordinance authorizing the City Manager to execute a First Amendment to the Contract for Professional Legal Services Between Wolfe, Clark, Henderson & Tidwell and the City of Denton; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND - On November 2, 1999, the City Council approved a Contract for Professional Legal Services to hire the law firm of Wolfe, Clark, Henderson & Tidwell to represent the City of Denton in litigation styled Municipal Administrative Services, Inc. v. City of Denton. This case is set for thai on Aphl 10, 2000. It is expected that the services of Wolfe, Clark, Henderson & Tidwell to represent the City in the thai will exceed the $50,000 allotted in the original Contract. Therefore, the Contract should be amended to include additional compensation for legal representation at trial. PRIOR ACTION/REVIEW - As indicated above, the Council approved a Contract for Professional Legal Services with Wolfe, Clark, Henderson & Tidwell on November 2, 1999. ADDITIONAL CONSIDERATIONS AND RECOMMENDATION - Staff recommends that you approve this First Amendment to the Contract for Professional Legal Services. ...... R~s~e~t"~l~y submitted, Litigation Attorney S:\Our DocumentsXMiscellan cous\00RvlAS agenda information sheet.do~ ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MAN- AGER TO EXECUTE A FIRST AMENDMENT TO THE CONTRACT FOR PROFES- SIONAL LEGAL SERVICES BETWEEN WOLFE, CLARK, HENDERSON & TIDWELL AND THE CITY OF DENTON; AUTHORIZING THE EXPENDITURE OF FUNDS THERE- FOR; AND pROvIDING AN EFFECTIVE DATE. THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to execute a First Amendment to the Contract for Professional Legal Services between Wolfe, Clark, Henderson & Tidwell and the City of Denton in substantially the form of the First Amendment attached hereto and incorpo- rated by reference herein. SECTION 2. That the City Manager is hereby authorized to make the expenditures and take the actions set forth in the attached First Amendment. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2000. JACK MILLER, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVE.~D..AS-TO~LE GAL FORM: HERBERT L. PROUTY, CITY ATTO~ FIRST AMENDMENT TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAs § COUNTY OF DENTON § This First Amendment to the Agreement made and entered into the 2nd day of November, 1999, by and between Wolfe, Clark, Henderson & Tidwell, 123 North Crockett, Suite 100, Sherman, Texas 75090, hereinafter referred to as "Consultant", and the City of Denton, a Texas municipal corporation, 215 East McKinney, Denton, Texas 76201, hereinafter referred to as "City" (hereinafter referred to as the "Base Agreement"). WITNESSETH WHEREAS, the City finds it necessary to amend the Base Agreement with Consultant to increase the compensation in the Base Agreement; NOW, THEREFORE, in consideration of the promises and mu .real obligations herein, the parties do hereby mutually agree to amend the scope of services and the compensation of the Base Agreement as follows: 1. That Section 3 "Compensation and Method of Payment" of the Base Agreement is hereby amended by amending Section 3.c. so that same shall now read as follows: Co Consultant estimates and the City agree that all charges for the legal services hereunder, including reasonable out-of-pocket expenses, shall not exceed dollars ($ ), and Consultant agrees to notify the City and seek a modification of the agreement should the total fees exceed such amount. 2. That save and except as amended hereby, the terms and conditions of the Base Agreement entered into by the parties on the 2nd day of November, 1999 shall remain in full force and effect. IN WITNESS HEREOF, the City of Denton, Texas, has caused this Agreement to be executed in duplicate originals by its duly authorized City Manager, and Consultant has executed this Agreement through its duly authorized undersigned parmer, dated this the __ day of ,2000. CITY OF DENTON BY: MICHAEL W. JEZ, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: WOLFE, CLARK, HENDERSON & TIDWELL BY: RONALD H. CLARK AGENDA INFORMATION SHEET Agenda No._, 00-014 Agendaltem Date AGENDA DATE: DEPARTMENT: ACM: March 28, 2000 Fiscal and Municipal Services Kathy DuBose SUBJECT Consider approval of a resolution of the City of Denton, Texas authorizing the City Manager to sign and transmit the update form to the Public Utility Commission of Texas calculating the Access Line Fees that the City of Denton is authorized to charge certificated telecommunication providers for use of its rights-of-way to be paid the City under House Bill 1777 and allocated to each category of access line within the City of Denton; and providing an effective date. BACKGROUND In November of 1999, the Public Utilities Commission requested all municipalities to provide them with information regarding telecommunications franchise fees received by cities in 1998. At the time this information was provided to the PUC, City Council also approved a resolution for the PUC to use this information to calculate access line rates and the allocation due the City of Denton. In March 2000, City staff received the rates from PUC. Sara Coleman of Diversified Consultants Inc. has reviewed the attached Update Form showing the calculation of the telecommunications access line rates. Both the City staff and Sara Coleman believe the rates are reasonable and do not require adjustment. The City will have one other opportunity to adjust the rates in September of this year. The City staff will monitor the impact of the rates on revenues and the rates of other North Texas cities between now and September. One advantage of the rates is that they seem to place more of the access line burden on the non-residential classes. In the recent TXU-Lone Star Gas rate case, the City Council required Lone Star to change the rate design so that the burden of the increase was shifted from the residential to the non-residential customers. The Update Form also allows the City Council to authorize a reduction in the base amount by exempting Lifeline customers from the access line fees. Lifeline customers are those economically disadvantaged customers who may have trouble paying their utility bills. Diversified Utility Consultants and staff believe the financial impact of approving the Lifeline customer discount is negligible. RECOMMENDATION Staffrecommends approval of the resolution. Agenda Information Sheet March 27, 2000 Page 2 PRIOR ACTION/REVIEW On November 16, 1999, City Council approved a resolution authorizing the Public Utilities Commission to calculate access line rates and the allocation due to the City of Denton. Respectfully submitted: Kathy DuBose Assistant City Manager Fiscal and Municipal Services 2 RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS' AUTHORIZING THE CITY MAN- AGER TO SIGN AND TRANSMIT THE UPDATE FORM TO THE PUBLIC UTILITY COM- MISSION OF TEXAS CALCULATING THE ACCESS LINE FEES THAT THE CITY OF DENTON IS AUTHORIZED TO CHARGE CERTIFICATED TELECOMMUNICATION PROVIDERS FOR USE OF ITS RIGHTSZOF-WAY TO BE PAID THE CITY UNDER HOUSE BILL 1777 AND ALLOCATED TO EACH CATEGORY OF ACCESS LINE WITHIN THE CITY OF DENTON; AND PROVIDING AN EFFECT1YE DATE. WHEREAS, by Resolution No. 99-064 passed by the City Council on November 16, 1999, the City of Denton authorized the Public Utility Commission of Texas ("PUC") to set the allocation fommla that determines what portion of the base amount (annual franchise fee or right-of-way use fee paid by the certified telecommunication providers) to be paid the City under House Bill 1777 will be allocated to each category of access lines within the City of Denton; and' WHEREAS, the PUC has set the allocation formula and has calculated the amount the City may charge certified telecommunication providers to be allocated among the three catego- ries of access lines that have been established by the PUC; and WHEREAS, the City Manager, the Assistant City Manager for Fiscal and Municipal Ser- vices, and Diversified Utility Consultants, Inc. have examined the Update Form from the PUC establishing the allocations and the maximum fee per access line rates to be charged certified · telecommunication providers within the City and have determined that the charges are reason- able for each class, comparable with the rates established for other area cities, will generate in- come comparable to franchise fees received from telecommunication providers prior to the pas- sage of House Bill 1777 and are not discriminatory or excessive; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION I. That the City Manager or his designee is hereby authorized to execute the attached Update Form, which is attached hereto and made a part of this resolution for all pur- poses, to sign all other documents and take any other action necessary to establish the maximum fee per access line that the City of Denton may charge to certificated telecommunications pro- viders utilizing the City's rights-of-way. The City Manager or his designee is hereby directed to transmit that fotiii to the PUC on or before April 1, 2000. SECTION 2. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2000. JACK MILLER, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Page 2 To: .Gar.n..e..t. Elkins . . Publ,c Ut,hty Commission of Texas P.O. Box 13326 . Austin, Texas 78711 3326 Kdstin Newman Assistant Director of Managem City of Demon 215 E. McKim~ey Denton TX 76201 Update Form Please tatum this form AS S-(~" ~'-' POSSIBLE and NO LATER THAN APRIL 1,2000. You can update the following: (a) Base amount, (b) Allocation (if you performed your own allocation), or (c) Your rates, if you prefer lower than the PUC Established Maximum Rates. · Updating (a) or (b) will result in revised PUC rates. The PUC will use the updated figures to establish updated maximum rates no later than April 15, 2000. Your rates were calculated using these figures 1. Base Amount reported to the PUC. 2. Adjustments made by the PUC to the Base Amount due to escalation adjustments or to remove ineligible fees. The PUC used 14 months of escalation to set rates (1/99 - 2/00). 3. Final base amount used to establish rates 4. Did your municipality request the PUC to determine the allocation for your municipality I! $1,054,851.07 [ ~1,054,851.07 ] 5. The allocations used to establish rates were Ratio1 I Il Cat1% I 01 Ratio2 I 2'31 Cat2% I 01 Ratio3 I 3'51 Cat3% I '~ 6. PUC Established Maximum Fee Per Access Line Rates Category I Rate (Residential) $1.34 FILL IN THE APPROPRIATE BLANKS BELOW if the P.U.C. used an Incorrect ba~e amount or if you reported an incorrect base amount, state your new base amount here. You must attach appropriate supporting documentation and calculations to change Your base amount. The new base amount is: If you performed your own a~location, but are' not satisfied with the rates, you can change your allocation. All allocations must be given as a ratio. If you chose the P.U.C.'s allocation, you can change it once every 24 months by notifying the P.U.C. no later than Sept. 1 each year. UPdate Ratio1 for Category 1 Update Ratio2 for Category 2 Update Ratio 3 for Category Choosing lower than PUC Established Maximum Rates You can choose a lower rate than the PUC established maximum rates. You can increase your retea once a year for the next calendar year up to the maximum rate by notifying the P.U.C no later than Sept.1 of each year of Increase. Category 2 Rate (non-Residential) ........ t ' ' $3.08 t .... ko~,~r_R_at_e_ f0_r_C_m_eg~ry&:_.. Lower Rate for Category 2: Category 3 Rate (point-to-point) $4.68 I [ Lower Rate for Category 3: 7. I authorize the reduction of my base amount by the amount of Ufeline Customer Compensation. YES__ (This authorization will exempt Ufeline customers from access line fees and will reduce your franchise compensation) [Form must be signed and retumed by April 1, to be considered valid. Mall form bask to thc PUG to the attention of Garnet Elkins at the above address.] This form is attested by an officer or authorized representative of the municipality under whose direction the report is prepared or ether official in responsible charge. Signature/Name:. /. Date: Ph#. Page 365 CONFIDENTIAL INFORMATION. NOT FOR PUBUC DISCLOSURE ESTIMA TED 1998 ACCESS LINE COUNT REPORT for City of Denton The following telecommunication providers reported access lines in your municipality. Municipalities should work with these providers directly to obtain franchise compensation. Your compensation using the new rates shall begin no later than June I, 2000. until then, providers shall continue compensation under any existing franchise agreements.. Compensation is paid quarterly, but no later than 45 days from the end of the quarter. The first quarterly compensation un*der HB 1777 will be for the third calendar quarter (July, August, September) of 2000. The payment for the third caiander quarter should be made no later than November 15, 2000. Some providers might begin their compensation'one quarter earlier at their option. :City of Denton iCity of Denton iCity of Denton [City of Denton !City of Denton !City of Denton City of Denton City of Denton ICity of Denton [City of Denton lCity of Denton. lCity of Denton City of Denton [City of ,D~nton ICity of Denton lCity of Denton lCity of Denton . Westel, Inc. J Trinity Telephone J Texas Hometel, Inc. J TCG Dallas J Sterling International Funding, Inc. ] SO--TERN BI;-!.T. TELEPHONE CO ] Phone~ For All I Nortex Telcom, L.L.C. [ ~ Southwest Incorporated J(~T~ Cornrmm~iafiOllS Corporation ~ Golden Harbor of Texas, Inc. l Faitlmet Telecomm-nications, Inc. IDYLl Commnnicatiol~ []lc 1C~oo~.w CommlmtmHoi~, Inc. CapRock Commnnjcafions Corp. I AT&T. Communications of Texas, L.P. AccuTel of Texas, Inc. Total for each categ°ry of lines for City of Denton CONFIDENTIAL INFORMATION. NOT FOR PUBLIC DISCLOSURE Residential. Non-restdentlal Point-to-point Ufelines 0.955 8 3, O, 0 8.595 9 33138.475 372.45 0 3 39 14 3.82 0 10 18.145 0 0 0 0 ,*2 0 13213.44 0.9~5 118 0 0 0 157.575 15.28 0 33616.295, 13570.395 0 0 0 1.91 0 0 0 0 553.35 0 0 0 0 0 555.26 Page 366 Public Utility Commission of Texas 1701 N. Congress Avenue P. O. Box L~326 Austin, Texas 78711-3326 512 / 936-7000 · (Fax) 936-7003 Web Site: www.pu~ty~us Pat Wood, In Chairman Judy Walsh Brett A. Perlmnn Commissioner Re: Access line rate~ under House Bill 1777 - TelecOmmunications Franchise Law Response is Required by April 1, 2000 To All Texas Municipalities Thank you for providing information regarding telecommunications franchise compensation (Base amoun0 in your municipality. The Public Utility Commission of Texas (PUC') used this information to establish maximum fee per access line rates for your municipality. Your municipality will be compensated for rights-of-way usage by CcrtifiCated Telecommunications Providers (CTPs) on a foe-per-line basis using these rates. These maximum ~ates were established b~ the PUC using your filed base amount divid_~_ over the total number of lines, by category, reported by CTPs. Tho three categories (rasidential, no~-~id~tial, and point-to-pein0 have unique rate~ in accordance with the allocation each city chose. Il'you are not satisfied with these ~!~, there may be several reasons. Problem Possible reasorm ~lndiflu Rates m'e Incomplete line coum Contact your telecommunication providers and reques~ tha~ complete too higl~ information line co, m*~ be forwarded to the PUC before April I, 2000 Allocating (I) Consider reallocation, or (2) choose lower than the PUC disproportionately high 'established maximum rate. The rates can be annually adjusted within base amount to a category the maxhnmn r~r~ by notifying the PUC before Sep. I of each year. that has too few lines. The ad~nntm~ will be eff~"-tlve for the ~_ext_ e~le, dnr year. Base amount may be Con/inn that tim base amount you reported inuludes only fees for 1998 incorrect, telecommunications franchise payments; No long distance fees shbuld bo included, g_nealatln_ns only through March 1, 2000 is a/lowed. $0 rates for No line count information There may be no lines in that category yet in your munlcipality. Ifyou one or all was provided for thru belinv¢ that there are lines in that category, contact your categories, category, telecommgmications th'otrid~ ~ requ~t that Hne counts be forwarded to the PUC before April l, 2000. $0 rates for Ho allocation of the base Consider reallocation of the base amount to the category that has zero a category amount to this category rat~ using the Update Form, Pray/de allocation us ratios of final rates that hn~ wns provided, de-hired. A ratio will allow the PUC to set r~M~ even for a category that' lines. 'l has 0 lln~s initially. Rates are Allocation of baso amount Samo as above, If-nsur¢ofwhatratiostouse, use the P.Ll.C's default low for one to that category was too allocation of 1'.2.3:3.5. You may change this ratio once every 24 category, small, months. Rates are Incorrect base amount Use the Update Form to update your base amount and return it back to low for all information, the PUC no lamr than April 1, 2000. You must attach supporting categories, docmnentatlon And calculations tO ~_rm't~_t_e your base amount. Lifeline and The attached rates apply Indicate on the am~cbod Update Form whether you wish to forgo Tal.nssist to all classes of customers compensation from lifeline customers. Then, Lifeline customers in customers including Lifeline and your municipality will not be assessed these rates. However, you are not Tel-ass/st customers, cannot recover this compensation from other customer classes. The- exempted, ra_t__~s_ of other customer classes (or categories) cannot be raised to compensat~ for for~oin~ comrnenn_ntlorl from lifeline The citizens ~,-l'i's are allowed under state law to pass through the muulcipai fee m your to the/r ~nd use customers, and in most instances they do. You should community directly, work with your CTPs if you have concerns about the pay these municipal pass through fees. fees. .~n ~u~ O0~ofluflity Em~er ENTRAL RECORDS (512) 93fi-7180 JMAN RESOURCES (512) 935-7060 FORMATION SYSTEMS (512) 936.7090 'Y (STZ) 93G-713§ CUSTOMER PROTECTION '(fi12) 938-7150 MEDIA RELATIONS (512) 938-7135 CUSTOMER HOTLINE (fi12) 936-7120 (888) 782.8477 EXECUTIVE DIRECTOR (512) 935-7040 POLICY O#VELOPMENT (512) 936.7200 REGULATORY AFFAIRS (512) 938-7300 Dendline: No later than April I, 2000 a municipality tony update its base amount and/or allocation. After April, no change to the rates or allocation may be made until Sep 1, 2000. An allocation may be changed once every 24 months beginning Scp 2000. To Update: Return the attached Update form only if you update base amount and/or allocation, or forgo compensation. If you have other special requests or concerns attach a separate letter. Send the Form and/or lcttcr to the attention of Garnet Elkins at the PUC and forward a copy to your telecommunication PrOviders. The PUC will soon mail you thc addresses of all telephone providers in your area. Should you need assistance, please contact Carnet at 512-936-7322 or send an email to aarnet.elkins@ouc.state.tx,~s, She will route your call to the appropriate person. Thank you for your cooperation. Attachments: Update Form and Access line count information.. WORKSHOP ON PUC ESTABLISHED RATES Municipal Franchise Fees - lib 1777 For CTPs and Municipalities Topics to be discussed: I) PUC Established Maximum Rates; 2) Updated PUC Rates; 3) Implementation of Rates, 4) Compensation; and 5) Subsequent Access Line Count Reporting. Monday, March 20m - 10:00 a.m. to 3:00 p~m. Public Utility Commission of Texas 1701 N. Congress Ave. Austin, Texas (512) 936-7000 Teleconference facilities available for tho March 20~ Workshop. It will cost $120 connection fee in addition to your long distance charges. This fee is non-refundable. You must pre- register before March 16 to use the teleconference bridge. To register, please call Gracie Alvarez at (512) 936-7179 or Brenda Arispe at (512) 936-7205. Ports fnay be limited, so register early! Tuesday, March 28~- 10:00 a.m. to 3:00 p.m. San Antonio Council Chambers 103 Main Plaza San Antonio, Texas (210) 207- 7245 No additional workshops have been planned at this time. CITY OF DENTON Workforce Diversity Plan Update Includes Fiscal Year 1998/99 Accomp~lishments and Current Statistics as of January. 13, 2000 Prepared by: Human Resources Workforce Diversity Plan Update Table of Contents ACCOMPLISHMENT SUMMARY: TAB 1 Summary ..................................................................................................... 1 FY 1998/99 Summary of Accomplishments ..................................... 2 Other Accomplishments ...................................................................... 11 Recruitment Efforts ................................................................................ Recruitment Mailing List: ....................................................................... 12 A. Educational Institutions ................................................................ B. Churches ........................................................................................ ¢. Media .............................................................................................. 14 D. Municipalities ................................................................................. E. Other Organizations ...................................................................... 1 F. Department Requested Advertising ............................................. 17 Recruitment Trips Attended - FY 1998-1999: ....................................... 18 Targeted Recruiting Trips - FY 1999-2000: ........................................... 20 Diversity Opportunities - Fiscal year 1999-2000 .......................... 22 STATISTICAL DATA: TAB 2 City of Denton vs. Civilian Labor Force ................................... 23 City of Denton Workforce Summary ........................................ 24 Job Family Analysis: - Excluding Seasonal, Special Agreement and Temporary 24 - Including Seasonal, Special Agreement and Temporary 25 - Seasonal, Special Agreement and Temporary Summary 26 3/22/00 h Workforce Diversity Plan Update - 2000.doc i Workforce Diversity Plan Update Table of Contents - continued STATISTICAL DATA - CONTINUED: NOTE: Tabs 3 through 8 do not include Seasonal, Special Agreement or Temporary positions. TA~3 General Government Summary City Manager's Office ................................................................ 28 Police .......................................................................................... 29 Fire ............................................................................................. 30 TA~4 Municipal Judge's Office .......................................................... 31 TAB5 City Attorney's Office ................................................................ 32 Fiscal and Municipal Services Summary ................................. 33 Finance Administration ............................................................. 34 Fiscal Operations ...................................................................... 35 Management and Budget .......................................................... 36 Library Services ........................................................................ 37 Human Resources ..................................................................... 38 Technology Services ................................................................. 39 3/22/00 Workforce Diversity Plan Update - 2000.doc ii Workforce Diversity Plan Update Table of Contents - continued STATISTICAL DATA - CONTINUED: TAB 7 Otilities Summary ...................................................................... 40 Water and Wastewater Utilities ................................................ Solid Waste ................................................................................ 42 Electric Otility ............................................................................ 43 Financial and Administrative Services .................................... 44 TAB 8 Development Services Summary ............................................. ,ts Planning and Development ....................................................... 46 Engineering and Transportation .............................................. 47 Facilities Management .............................................................. 48 Economic Development ............................................................ 45 Parks and Recreation ................................................................ SO 3/22/00 Workforce Diversity Plan Update - 2000.doc iii City of Denton Workforce Diversity Plan 1999 Summary Upd_ate Summary A broad description of our comprehensive efforts... Workforce Diversity has been a long-standing commitment of the City of Denton. In fact, our diverse employee population stands as a testament to the years of focused recruitment, training and retention efforts of the organization. Our mission is to create a diversified workforce that is reflective of the community at all levels of the organization, in every department, and, to promote diversity as an opportunity to celebrate and value differences. The overall diversity effort is spearheaded by the City Manager who works inter- mutually with the Director of Human Resources. The Director of Human Resources oversees and monitors the organization's strategic plans and accomplishments. Various employee, community and management task forces are developed to assist and support the overall diversity effort. The City of Denton currently has a five-year Workforce Diversity Plan that was published in May of 1998. This plan was established after a two-year intensive study conducted by the City Council, City Management, Human Resources staff and Dr. Richard Lewis. Plans of action were developed through several diverse groups: the Community Task Force, comprised of community stakeholders; the Workforce Diversity Committee, comprised of employee representatives from all departments; and the Diversity Management Panel, comprised of managers and supervisors from all departments. Their research and recommendations for action are included in the current Workforce Diversity Plan. The City of Denton Diversity Plan has several unique features. The first is the inclusion of a Workforce Diversity Strategic Plan for the City Council as well as each department. Each strategic plan contains issues and goals identified by the City Council. The departments had the option of including additional issues and goals specific to their operations. A complete revision of the Workforce Diversity Strategic Plan and organizational demographics is targeted for fiscal year 2000-2001 using new census data. 3/22/00 Workforce Diversity Plan Update - 200Qdoc 1 FY 1998/99 Summary of Accomplishments Issue: Goal: Devise and employ aggressive strategies to maintain and create where necessary a diversified workforce that reflects the demographics of qualified members of our community within each department or division while maintaining a race and gender neutral hiring, selection and promotion process. To improve where necessary or maintain employee workforce makeup levels that reflect the demographics of qualified members of the community, while maintaining a race and gender neutral hiring, selection and promotion process. Highlight of Accomplishments: 1. In February 1999, the City of Denton conducted our first dual off-site civil service entry-level fire fighter exam at Wiley College in Marshall, Texas and at Texas Woman's University in Denton, Texas. Of the 537 applicants participating in the exam, 118 were minorities. Of the 118 minority test participants, 85 passed the exam. Chapter 143 of the Texas Local Government Code requires the City to begin the screening process with the highest scoring candidate. The screening process stopped at the 151st applicant on the eligibility list based on the number of vacancies. Although 85 minorities passed the exam, only 3 Hispanic males and 10 white females fell within the screening process. The rest of the minorities fell below this cut-off point. Only one white female passed all phases of the hiring process and was hired on February 12, 2000. The other 12 minorities, who were listed on the eligibility list, did not proceed further because of the following: Two white females declined to proceed; Two white females did not pass the background investigation; One white female did not pass the oral review process; Four white females did not return the background investigation booklets; Two Hispanic males did not return the background booklets; And, one Hispanic male accepted a job with another fire department. 3/22/00 Workforce Diversity Plan Update - 2000.doc 2 FY 1998-1999 Accomplishments - continued: The following lists the race and gender of minority individuals who took the test on February 12, 1999: 30 10 17 4 13 6 Hispanic I 48 0 27 0 21 0 White I 30 .... 27 .... 3 The eligibility list expired on February 12, 2000 and another exam was administered February 13, 2000, which established another eligibility list. 2. In conjunction with Police and Fire, the Human Resources Department participated in approximately forty (40) job fairs, recruitment trips and career days; 1998 was the first year to include local high schools. 3. Obtained a van in the 1998/99 budget for travel to recruiting trips; decaled the van with job line number for additional advertising. 4. Increased number of Hispanic police officers by thirteen percent (13%); increased female police officers by thirty-three percent (33%) for fiscal year 1998/99. 5. Identified and utilized protected class employees as recruiters (Police: 1 black male, 1 black female, 1 Hispanic male, and 1 white male over 40; Human Resources: 1 Hispanic male, 1 black female, and 1 white female over 40). 6. Expanded recruiting efforts to include advertising on local government access channel and City of Denton website. 7. Developed a list of minority publications commonly used by departments for advertising. 8. Continued to provide practicum opportunities for School of Library and Information Studies (SLIS) Students from UNT and TWU. 3/22/00 Workforce Diversity Plan Update - 2000.doc 3 FY 1998-1999 Accomplishments - continued: Issue: Goal: Devise and employ aggressive strategies that would maintain and create where necessary diversity within employee-related activities, task forces committees, boards and commissions. TO im prove or maintain employee-related activity, task force, committee, board, and commission representation at levels which reflect the demographics of the community. Highlight of Accomplishments: 1. Twenty-five (25) boards and commissions with diverse members. 2. FY 98/99 Citizen's Police Academy; averaged thirteen (13) students per class; average demographics of students who attended the classes were 2.5 Hispanics, 1.5 blacks, and 10 females. Issue: Go% Devise and emplOy strategies that enCourage the work force to celebrate the diVerSity of the community. To imprOve or maintain awareness of the diversit¥ of the communit¥, Highlight of Accomplishments: 1. Coordinated a diversity workshop and community luncheon in June of 1998. 2. Sponsored a myriad of festivals and celebrations to include Cinco de Mayo, Juneteenth, Martin Luther King celebration, Blues Festival, Jazz Festival, Special Olympics, etc. 3. Supported and partnered with local organizations including the Hispanic Chamber, Black Chamber, Chamber of Commerce, Council of Governments, International Sister Cities, Texas Employment Commission, Denton Housing Authority, etc. 4. Promoted the Zapotian project, which brought 130 Mexican performers to Denton. 3/22/00 Workforce Diversity Plan Update - 2000.doc 4 FY 1998-1999 Accomplishments - continued: Issue: Goal: Devise and employ aggressive strategies that will exemplify the recognition that the great strength of the Amedcan system of democracy has always come from diversity. To improve or maintain our office's involvement in community measures which encourage cultural awareness and sensitivity through education and participation. Highlight of Accomplishments: 1. Several legal staff members volunteered their services to nonprofit organizations that benefit minority or diverse segments of the population. This involved not only pro bono legal services but also other services to non-profit cultural organizations that reflect the demographics of our community. 2. Promoted the Zapotian project, which brought 130 Mexican performers to Denton. Issue: GOal: Devise and employ strategies to help retain productive emploYees~ To improve or maintain turnover ratio where necesSary. Highlight of Accomplishments: 1. Increased employee compensation by seven to eleven percent (7-11%) during 1998/99 fiscal year. 2. Increased student aide and intern salaries by nearly twenty-one percent (21%). 3. Continued use of "beeper" (safety) awards in Utilities; continued awarding employees for using the "Seven Habits;" implemented CIA's (Caught-in-the-Act) awards in Engineering and Transportation. 4. Established a developmental tracking policy in April, 1998 to provide employees development opportunities; developed and implemented 4 progression plans including Solid Waste maintenance personnel, Water/Wastewater Field Services maintenance and metering personnel, and Human Resources personnel. 5. Expanded employee benefits to include the "Employee Assistance Program." 3/22/00 Workforce Diversity Plan Update - 2000.doc 5 FY 1998-1999 Accomplishments - continued: Issue: Goal: Devise and employ aggressive strategies to create an awareness and appreciation of diversity within the department and within the City of Denton. To improve or maintain an awareness and appreciation of employee diversity. Highlight of Accomplishments: 1. Conducted thirteen (13) "Seven Habits of Highly Effective People" workshops. 2. Conducted nine (9) "New Employee Orientation" workshops, which includes diversity training. Issue: Goal: DeVise and emPloy strategies to develop all employees. To develop employees personally and professionally. Highlight of Accomplishments: 1. Forty-one (41) employees participated in the Tuition Reimbursement program; 3 graduated. 2. Allocated funding for citywide training including Seven Habits, New Employee Orientation, Teambuilding, Management, and Spanish workshops. 3. Established a developmental tracking policy in April, 1998 to provide employees development opportunities; developed and implemented 4 progression plans including Solid Waste maintenance personnel, Water/Wastewater Field Services maintenance and metering personnel and Human Resources personnel. 3~22~00 Workforce Diversity Plan Update - 2000.doc 6 FY 1998-1999 Accomplishments - continued: Issue: Goal: Devise and employ strategies to include small as well as women and minority owned businesses in the City's purchasing/bid process. To increase small as well as women and minority owned business participation in the City's purchasing and bid process. Highlight of Accomplishments: Attended ten (10) meetings of the North Central Texas College (NCTC) Small Business Development Center to take advantage of opportunities to encourage and promote women-owned, minority-owned, and small business participation in the City's bid process. 2. Made three (3) presentations on the City's bid process to the NCTC Small Business Development Center. 3. Provided assistance to businesses as requested during the bid preparation process. Issue: Goal: Devise and employ Strategies to increase positive interactions, both internally and externallY, through increased Understanding of diversitY issues and imprOved interperSonal skills. To increase emploYee understanding of diversity issues and improve interpersonal skills. Highlight of Accomplishments: 1. Conducted thirteen (13) "Seven Habits of Highly Effective People" workshops. 2. Conducted nine (9) "New Employee Orientation" workshops, which included Diversity training. 3/22/00 Workforce Diversity Plan Update - 2000.doc 7 FY 1998-1999 Accomplishments - continued: Issue: Goal: Devise and employ aggressive strategies to promote development and career advancement for all department employees. To develop employees who are highly competent and well-rounded professionals. Highlight of Accomplishments: Established a developmental tracking policy in April, 1998 to provide employees development opportunities; developed and implemented 4 progression plans including Solid Waste maintenance personnel, WaterNVastewater Field Services maintenance and metering personnel and Human Resources personnel. Twenty-five percent (25%) increase in organizational training to include additional Diversity, Seven Habits of Highly Effective People, Teambuilding, Management and Spanish workshops. Revamped the current New Employee Orientation workshop to include a one-day introductory workshop of Seven Habits of Highly Effective people to provide employees some of the tools to be successful earlier in their career. issUe: GOal: , In order to COntinue to ~diversify the workfOrCe at all levels, strategiesare: needed to ensUre that in-house job candidates can compete effectively: with applicants from outside the organization. : : Expand career develOpment and PrOmOtion oppOrtunities Within CitY departments:: Highlight of Accomplishments: Established an interdepartmental "employee swap" or cross-training program in the Parks and Recreation department as part of the department's comprehensive employee development program to enhance career development and advancement opportunities for the workforce. Developed a mentoring program in the Parks and Recreation department to improve the opportunities for career development and advancement for Parks and Recreation employees; included mentoring, phased training and cross-training elements; implemented January, 2000. 3/22/00 Workforce Diversity Plan Update - 2000.doc 8 FY 1998-1999 Accomplishments - continued: Established a developmental tracking policy in April, 1998 to provide employees development opportunities; developed and implemented 4 progression plans including Solid Waste maintenance personnel, Water/Wastewater Field Services maintenance and metering personnel and Human Resources personnel. Issue: Devise and employ aggressive strategies to reduce employee turnover and encourage the advancement and growth of employees from all demographic groups represented in our community. Goal: To prOVide a workplace atmosphere that encourages the retention and growth of emploYees, but particularly of those who have been historicallY underrepresented in the workplace. Highlight of Accomplishments: 1. Continued to decline in employee turnover, from twenty-seven percent (27%) in 1997 to approximately twenty-one percent (21%) in 1999. 2. Increased employee compensation by seven to eleven percent (7-11%) during 1998/99 fiscal year. 3. Increased student aide and intern salaries by nearly twenty-one percent (21%). 4. Expanded employee benefits to include the "Employee Assistance Program". 5. In conjunction with Police and Fire, participated in approximately forty (40) job fairs, recruitment trips and career days; 1998 was the first year to include local high schools. 3/22/00 Workforce Diversity Plan Update - 2000.doc 9 FY 1998-1999 Accomplishments - continued: Issue: Goal: Develop training, processes and Procedures, which support the creation of a culture of trust, cooperation and teamwork. Create a' culture in which people of all backgrounds can reach 'their maximum potential. . Highlight of Accomplishments: 1. City Manager established "mid-level managers" meetings to allow employees to ask questions; minimize rumors; keep employees abreast of current developments in the organization, etc. 2. City Manager implemented the idea of "Neighborhood Service Delivery" to include consultation, adaptation, and mobilization; empowered employees when it is right for the community and organization and when it is legal and ethical. Conducted thirteen (13) "Seven Habits of Highly Effective People" workshops. Conducted nine (9) "New Employee Orientation" workshops, which included diversity training. 5. Incorporated mass distribution of information via e-mail (i.e., upcoming trainings, wellness information, mid-level managers meetings, Community Development newsletters, health benefit open enrollments, etc. 3/22/00 Workforce Diversity Plan Update - 2000.doc 10 Other Accomplishments 1. Received National League of Cities Diversity Plan award; first runner up for cities less than 100,000, March 1999. 2. Received Main Street National Award, April 1999. 3. Continued participation with Texas Education and Coop's Summer Youth Training program; ten percent (10%) increased participation by departments Individual and collective accomplishments as it relates to diversity are included in employee's performance review, which are conducted on an annual basis. Inclusion of diversity efforts in the employee's performance reviews has been an ongoing practice since the early 1990's. However, additional performance categories were included in the reviews in 1998 to reflect the current Workforce Diversity Plan initiatives. Overall, the City's diversity efforts permeate beyond workforce diversity "programs." Our focus has been to build an inclusive community as a way of life. The City's philosophy is interwoven in a myriad of community and employee related activities. Such an approach has served the city of Denton exceedingly well resulting in an open, supportive and synergetic relationship with the stakeholders - public officials, employees and the community. 3/22/00 Workforce Diversity Plan Update - 2000.doc 11 Recruitment Mailing List: Recruitment Efforts Educational Institutions The following institutions are sent City of Denton position opportunity lists on a weekly basis: Institutions Targeted Applicants Billy Ryan High School High School Graduates Denton High School High School Graduates Brookhaven College Technical/Paraprofessional Business Skills Training Center Technical/Paraprofessional Cooke County College Adult All Education Denton Independent School District All East Texas State University Minority Hutson-Tillotson College Minority Jarvis Christian College Minority Laredo State University Minority National Education Center All North Central Texas College All North Texas Education/Training Coop All Paul Quinn College Minority Southern Methodist University All St. Edward's University All Minority St. Phillip's College 3/22/00 Workforce Diversity Plan Update - 2000.doc 12 Recruitment Efforts - continued: Institutions Targeted Applicants Texas State Technical College Technical Texas Woman's University All University of Houston - University All Park University of Texas at Arlington All University of North Texas All University of Texas - Pan American All Western College of Colorado All Churches The following churches are sent City announcements on a weekly basis: of Denton position opportunity Church Targeted Applicants Morse Street Baptist Church Minority Mt. Calvary Baptist Church Minority Mt. Pilgrim Baptist Church Minority Peaceful Rest Baptist Church Minority Pleasant Grove Baptist Church Minority Simmons Street Church of Christ Minority St. Andrew Church of God In Christ Minority St. Andrew Presbyterian Church All St. Emmanuel Baptist Church Minority St. James A.M.E. Church Minority Workforce Diversity Plan Update - 2000.doc 3~22/00 '13 Recruitment Efforts - continued: Media Each organization is sent City of Denton position opportunity announcements on a weekly basis: Organization Targeted Applicants citybase.net All/Professional cityofdenton.com All Denton Record-Chronicle All All Local Government Access (Cable 26) Municipalities Each municipality is sent City of Denton position opportunity announcements on a weekly basis: Municipality Targeted Applicants City of Arlington All City of Austin Parks & Recreation All City of Carrollton City of Dallas City of Denton (approx. 26 All departments) City of Farmers Branch All City of Fort Worth All City of Garland All City of Grand Prairie All Workforce Diversity Plan Update - 2000.doc 14 3/22~00 Recruitment Efforts - continued: Municipality Targeted Applicants City of Hurst All City of Irving All City of Lewisville All City of Piano All City of Richardson All Other Organizations Each organization is sent City of Denton position opportunity announcements on a weekly basis: Organization Cascade Rehabilitation Counseling All Continental Credit Corporation All Dallas Housing Authority All Denton County MHMR All Denton Housing Authority Minority NAACP-Denton Branch Minodty Denton State School All Eastside Community Center Minority Friends of the Family All Goodwill Industries of Denton, Inc All Goodwill Industries of Fort Worth, Inc All Ingleside Family Service Center Minority Targeted Applicants 3/22/00 Workforce Diversity Plan Update - 2000.doc 15 Recruitment Efforts - continued: Organization Targeted Applicants Interfaith Ministries Minority LULAC Minority Naval Reserve Recruiting All On Assignment Lab Support All Texas Department of Human Services Minority Texas Legal Services Minority Texas Rehabilitation Commission All Texas Workforce Commission All Triangle Temporaries All United Way of Denton All Urban Management Assistants of All North Texas Veteran Department All West Texas Legal Services All Workforce Texoma All Youth Fair Chance All 3/22/00 Workforce Diversity Plan Update - 2000.doc 16 Recruitment Efforts - continued: Department Requested AdvertisinR In addition to the 79 sources previously listed, additional advertising is available at the request of the department. Some sources used in the past include: Advertisement Targeted Applicants American Society of Civil Engineers Engineers Dallas County Public Works Utilities DFW Community News Professional Employment News Professional Fort Worth Star Telegram Professional Gilleland Creek Press Professional Government Finance Officers Professional Association of United States and Canada Government Finance Officers Professional Association of Texas International City Management Professional/Executive Association International Right-of-Way Association Engineering/Transportation KICI/Heaven 97 Radio Minority/Professional Latino Monthly Minority/Professional Longview News Journal Professional Public Power Weekly Utilities - Professional Public Works Classified Utilities - Professional Shreveport Times Professional Texas Professional Engineers Engineering TWU-Advertising Professional UNT-Advertising Professional 3/22/00 Workforce Diversity Plan Update - 2000.doc 17 Recruitment Efforts - continued: Recruitment Trips Attended - FY 1998-1999: University of Texas at Dallas October, 1998 Dallas, TX Mayor's Committee - Disabilities* October, 1998 Fort Worth, TX Greater Denton Career & Business Fair* October, 1998 Denton, TX Texas A&M University* October, 1998 Corpus Christi, TX Texas A&M University* October, 1998 Kingsville, TX Texas A&M University* October, 1998 Commerce, TX Austin Emergency Medical Services November, 1998 Austin, TX St. Mary's College* November, 1998 San Antonio, TX St. Phillip's College* November, 1998 San Antonio, TX San Antonio Colleges and Universities November, 1998 San Antonio, TX San Antonio Emergency Medical Services November, 1998 San Antonio, TX Texas College* November, 1998 Tyler, TX Wiley College* November, 1998 Marshall, TX NCOA (Non-Commissioned Officer Assoc.) December, 1998 San Antonio, TX University of Texas at San Antonio December, 1998 San Antonio, TX West Central State University February, 1999 Abilene, TX Southwest Texas State University February, 1999 San Marcos, TX Red River Career Expo February, 1999 Wichita Falls, OK McMurray State University February, 1999 Abilene, TX San Antonio Military Job Fair March, 1999 San Antonio, TX Tarleton State University March, 1999 Stephenville, TX National Forum for Black Public March, 1999 Austin, TX Administrators* 3/22/00 Workforce Diversity Plan Update- 2000.doc 18 Recruitment Efforts - continued: Sam Houston State University March, 1999 Huntsville, TX Stephen F. Austin University March, 1999 Nacogdoches, TX NCOA (Non-Commissioned Officer Assoc.) May, 1999 San Antonio, TX University of North Texas September, 1999 Denton, TX Baylor University September, 1999 Waco, TX FERIA Job Fair 99 (Multicultural)* September, 1999 Fort Worth, TX McNeese State University* September, 1999 Lake Charles, LA Northwestern State University* September, 1999 Natchitoches, LA Northeast Louisiana State University* September, 1999 Monroe, LA San Antonio Military Job Fair September, 1999 San Antonio, TX Stephen F. Austin University September, 1999 Nacogdoches, TX Louisiana Tech University* September, 1999 Ruston, LA Southwest Texas State University September, 1999 San Marcos, TX Texas Woman's University September, 1999 Denton, TX University of Texas at Dallas September, 1999 Richardson, TX Tarleton State University September, 1999 Stephenville, TX * Targeted for minorities 3/22/00 Workforoe Diversity Plan Update - 2000.doc 19 Recruitment Efforts - continued: Targeted Recruiting Trips - FY 1999-2000: Texas A & M University* October, 1999 Kingsville, TX Metro Job Fair October, 1999 Richardson, TX Texas A&M University* October, 1999 Commerce, TX Non-Commissioned Officer Assoc. October, 1999 San Antonio, TX Mayor's Committee on Disabilities* October, 1999 Fort Worth, TX Northeastern State University November, 1999 Talequah, OK Greater Denton Career & Business November, 1999 Denton, TX San Antonio Colleges & Universities November, 1999 San Antonio, TX Texas EMS Conference November, 1999 Austin, TX St. Mary's College* November, 1999 San Antonio, TX St. Phillips College* November, 1999 San Antonio, TX San Antonio Colleges and Universities November, 1999 San Antonio, TX Non-Commissioned Officer Assoc. December, 1999 San Antonio, TX Red River Career Expo February, 2000 Wichita Falls, OK Texas A&M University* February, 2000 Commerce, TX Texas Woman's University February, 2000 Denton, TX UT Dallas Career Day March, 2000 Richardson, TX University of Houston - Downtown March, 2000 Houston, TX MAC3 (Metroplex Area Career Fair) March, 2000 Richardson, TX Jarvis Christian College* March, 2000 Hawkins, TX San Antonio Military Community March, 2000 San Antonio, TX University of Texas at San Antonio March, 2000 San Antonio, TX Texas Job Fair (University of Houston)* March, 2000 Houston, TX 3/22/00 Workforce Diversity Plan Update - 2000.doc 20 Recruitment Efforts - continued: Tarleton State University March, 2000 Stephenville, TX Hardin Simmons University March, 2000 Abilene, TX Stephen F. Austin University March, 2000 Nacogdoches, TX SWT Multicultural Job Fair* April, 2000 San Marcos, TX NAACP High-Tech Diversity Fair* April, 2000 Houston, TX Denton/Ryan High Career Night April, 2000 Denton, TX Sam Houston State University April, 2000 Huntsville, TX Grambling State University* April, 2000 Grambling, LA Scholar's Fair* June, 2000 Denton, TX * Targeted for minorities 3/22/00 Workforce Diversity Plan Update - 2000.doc 21 Diversity Opportunities - Fiscal year 1999-2000 Even though the City of Denton celebrates its accomplishments, there remain opportunities for growth. As an organization we will: Continue efforts to diversify areas in the organization that remain predominately homogeneous such as the fire department, upper management, and water and electric utilities. Explore and devise strategies to reduce the turnover in service maintenance and technical paraprofessional positions. Devise an effective methodology to track City Council, department, organizational and community diversity accomplishments. Promote departmental use of the Workforce Diversity Plan as a guideline during selection, placement and promotion of staff. Promote departmental involvement in recruiting and career fairs. 3/22/00 Workforce Diversity Plan Update - 2000.doc 22 Worlfforce Analysis City of Demon vs. Civilian Labor Force Race Gender American Asian White Total Black Hispanic Indian Female Male Projected to July 1999 Employee Data as of: January 13, 2000 5.2% [ 8.5% 7.8% 84.9% I7.7% 0.4% 0.8% 83.3% lOO.O%I 29.7% I 70.3% 100.0% 33.3% 66.7% * 1990 Census- Employed and Unemployed; but available for employment. Source: Texas Workforce Center 3/22/00 Department & ACM Statistics.xls - Workforce Comparison 23 City of Denton Worlcforce Summary Job Family Analysis Excluding Seasonal, Special Agreemem and Temporary All Departments Employee Data as of: January 13, 2000 Race Age Gender Under Black Hispanic American Asian White 40 + Male Female I I 0 1 30 28 5 24 9 0 0 0 0 108 57 51 108 0 ~U~ {~ 0 6 1 0 57 42 22 46 18 10 9 1 1 106 63 64 13 114 3 8 2 0 116 42 87 119 10 7 8 1 3 94 45 68 44 69 13 27 0 0 90 55 75 126 4 17 24 0 4 234 130 149 211 68 51 83 5 9 835 462 521 691 292 0.5% 0.9% 84.9% 47.07; 53.0% 70.3% 29.7% 5.2% 8.5% VVhite 84.9% Race Hispanic Black 8.5% America 5.2% ~ Indian0.5% Asian 0.9% Gender 40 + 47.0% Male Female 70.3% 29.7% Age Under 40 53.0% 3/22/00 Department & ACM Statistics.xls - Job Family Excluding Seasonal 24 City of Demon Workforce Summary Job Family Analysis Including Seasonal, Special Agreement and Temporary All Departments Employee Data as of: January 13, 2000 Race Age Gender Under American Asian White 40 + Male Female Black Hispanic Indian 40 1 1 0 i 30 28 5 24 9 0 0 0 0 108 57 51 108 0 0 6 1 0 57 42 22 46 18 10 9 1 1 106 63 64 13 114 3 8 2 0 116 42 87 119 10 7 8 1 3 94 45 68 44 69 13 27 0 0 90 55 75 126 4 17 24 0 4 234 130 149 211 68 30 5 0 0 89 30 94 51 73 7 0 0 0 15 5 17 7 15 1 0 0 0 n 5 7 12 0 89 88 5 9 950 502 639 761 380 7.8% 7.7% 0.4% 0.8% 83.3% 44.0% 56.0% 66.7% 33.3% American Indian 0.4% White 83.3% Race Hispanic Black 7.7% Asian 0.8% Age 40 + 44.0% Gender Under 40 56.0% Male Female 66.7% 33.3% Department & ACM Statistics.xls - Job Family Including Seasonal 3/22/00 25 City of Denton Workforce Analysis Seasonal, Special Agreement and Temporary Positions Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total* Percem Female 28 3 0 0 57 19 69 88 55.7 % Male 10 2 0 0 58 21 49 70 44.3% Total 38 5 0 0 115 40 118 158 100.0% Percent 24.0% 3.2% 0.0% 0.0% 72.8% 25.3% 74.7% 100.0% ~ White 72.8% Race Asian American Indian 0.0% 0.0% Black 24.0% Hispanic 3.2% Under 40 74.7% Gender Age 40 + 25.3% Male 44.3 Female L7% 3/22/00 Department & ACM Statistics.xls - Seasonal 26 City of Denton Workforce Analysis General Government* Michael W. Jez, City Manager Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 4 3 0 0 47 20 34 54 17.7% Male 6 9 2 0 234 106 145 251 82.3% Total 10 12 2 0 281 126 179 305 100.0% Percent 3.3% 3.9% 0.7% 0.0% 92.1% 41.3% 58.7% 100.0% ~ * Includes City Manager's Office, Internal Audit, Cable TV, Police and Fire. Race Hispanic 3.9% White Black 92.1% 3.3% American Indian 0.7% Asian 0.0% Gender Age Under 40 58.7% 40 + 41.3% Male 82.3% Female 17.7% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - General Govt. 27 City of Demon Workforce Analysis City Manager's Office* Michael W. Jez, City Manager Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 0 0 0 0 6 5 1 6 60.0% Male 1 1 0 0 2 2 2 4 40.0% Total 1 1 0 0 8 7 3 10 100.0% Percent 10.0% 10.0% 0.0% 0.0% 80.0% 70.0% 30.0% 100.0% ~ * Includes City Manager's Office, Internal Audit, and Cable TV. White 80.0% Race Amedcan Hispanic Indian Asian 10.0% 0.0% 0.0% Black 10.0% 40 + 70.0% Age Gender Male Female 4O.O% 6O.O% Under40 30.0% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - City Manager's Office 28 City of Demon Workforce Analysis Police* Gary Matheson, Police Chief Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 4 2 0 0 28 10 24 34 20.2% Male 5 8 2 0 119 44 90 134 79.8% Total 9 10 2 0 147 54 114 168 100.0% Percem 5.4% 5.9% 1.2% 0.0% 87.5% 32.1% 67.9% 100.0% ~ * Includes Civil Service and Non-Civil Service employees. White Race Asian Black 0.0% American Hispanic 5.4% Indian 5.9% 1.2% Under 40 67.9% Gender Age 40 + 32.1% Male Female 79.8% 20.2% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Police 29 City of Denton Workforce Analysis Fire* Ross Chadwick, Fire Chief Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percem Female 0 1 0 0 13 5 9 14 11.0% Male 0 0 0 0 113 60 53 113 89.0% Total 0 1 0 0 126 65 62 127 100.0% Percem 0.0% 0.8% 0.0% 0.0% 99.2% 51.2% 48.8% 100.0% ~ * Includes Civil Service and Non-Civil Service employees. Race Hispanic Amedcan Black 0.0% ~..~.8% Indian0.0% Asian 0.0% White 99.2% 40 + 51.2% Age Under40 48.8% Gender Male 89.0% Female 11.0% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Fire 30 City of Denton Workforce Analysis Municipal Judge's Office Robin Ramsay, Municipal Judge Employee Data as of: January 13, 2000 Race Age Gender I Under Gender Black Hispanic American Asian White 40 + Total Percent Indian 40 Female 0 0 0 0 1 1 0 1 50.0% Male 0 0 0 0 1 1 0 I 50.0% Total 0 0 0 0 2 2 0 2 100.0% Percent 0.0% 0.0% 0.0% 0.0% 100.0% 100.0% 0.0% 100.0% ~ Black Venire 100.0% Race American Hispanic Indian 0.0% 0.0% Asian 0.0% 40 + 100.0% Male 50.0% Gender Female 50.0% Age Under 40 0.0% Data does not include special agreement, seasonal, and/or temporary employees. 3122100 Department & ACM Statistics.xls - Juclge's Office 31 City of Denton Workforce Analysis City Attorney's Office Herb Prouty, City Attorney Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 0 0 0 0 4 1 3 4 40.0% Male 0 0 0 1 5 6 0 6 60.0% Total 0 0 0 1 9 7 3 10 100.0% Percent 0.0% 0.0% 0.0% 10.0% 90.0% 70.0% 30.0% 100.0% ~ White Race Black 0.0% Hispanic 0.0% Amedcan Asian Indian 10.0% 0.0% Male 60.0% Age 40 + 70.0% Female Gender 40.0% Under 40 30.0% Data does not include special agreement, seasonal, and/or temporary employees. 3/22100 Department & ACM Statistics.xls City Attorney's Office 32 City of Denton Workforce Analysis Fiscal and Municipal Services* Kathy DnRose, Assistant City Manager Employee Data as of: January 13, 2000 Race Age Gender Under American Asian White 40 + Total Percent Gender Black Hispanic Indian 40 Female 9 7 1 2 74 51 42 93 73.8 % Male 3 3 0 0 27 '14 19 33 26.2% Total 12 10 1 2 101 65 61 126 100.0% Percent 9.5% 7.9% 0.8% 1.6% 80.2% 51.6% 48.4% 100.0% ~ * Includes Finance Administration, Treasury Operations, Management and Budget, Library Services, Human Resources, and Technology Services. White 80.2% Race Amedcan Black Hispanic indian 9.5% 7.9% 0.8% Asian 1.6% 40 + 51.6% Male 26.2% Gender Age Female 73.8% Under 40 48.4% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - ACM-Fiscal Mgmt & Mun Srvcs 33 City of Demon Workforce Analysis Finance Administration Kathy DuBose, Assistant City Manager Employee Data as of: January 13, 2000 Race Age Gender Gender American, Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 1 0 0 0 1 2 0 2 100.0% Male 0 0 0 0 0 0 0 0 0.0% Total 1 0 0 0 I 2 0 2 100.0% Percent 50.0% 0.0% 0.0% 0.0% 50.0% 100.0% 0.0% 100.05'o ~ Race Amedcan Asian Indian Hispanic 0.0% 0.0% 0.0% Black White 50.0% 40 + Age Under 40 0.0% Gender Male Female 100.0% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/oo Department & ACM Statistics.xls - Finance Administration 34 City of Denton Workforce Analysis Fiscal Operations* Diana Ortiz, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 2 6 0 1 10 6 13 19 90.5% Male 0 0 0 0 2 2 0 2 9.5 % Total 2 6 0 1 12 8 13 21 100.0% Percent 9.5% 28.6% 0.0% 4.8% 57.1% 38.1% 61.9% 100.0% ~ * Includes Treasury, Municipal Court, Tax, and Risk Management. Race Black White 9.5% Hispanic 57.1% 28.6% American Asian Indian 4.8% 0.0% 40 + 38.1% Gender Male Age Female 90.5% Under 40 61.9% Data does not include special agreement, seasonal, and/or temporary employees. 3/22~00 Department & ACM Statistics.xls - Fiscal Oper. 35 City of Denton Workforce Analysis Management & Budget* Jon Fortune, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent *emale 0 0 1 1 19 12 9 21 75.0% Male 0 2 0 0 5 4 3 7 25.0% Total 0 2 1 1 24 16 12 28 100.0% Percent 0.0% 7.1% 3.6% 3.6% 85.7% 57.1% 42.9% 100.0% ~ * Includes Accounting, Budget, and Materials Management. White 85.7% Race Amedcan Black Hispanic/- Indian3.6% 7.1% t 0.0% Asian ;.6% Age Under 40 42.9% 40 + 57.1% Male 25.0% Gender Female 75,0% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Fiscal Mgmt & Budget 36 City of Denton Workforce Analysis Library Services* Eva Poole, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 3 i 0 0 25 20 9 29 72.5 % Male 3 0 0 0 8 3 8 11 27.5 % Total 6 1 0 0 33 23 17 40 100.0% Percent 15.0% 2.5% 0.0% 0.0% 82.5% 57.5% 42.5% 100.0% ~ * Includes Library Administration, Circulation, Technical Services, Adult Services, Children's Services, and Branch. f % --, VVhite 82.5% Race Amedcan Indian Black 0.0% 0.0% 2.5% 15.0% 40 + 57.5% Gender Male Female 27.5% 72.5% Age Under 40 42.5% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Library Srvcs 37 City of Denton Workforce Analysis Human Resources Carla Romine, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 1 0 0 0 8 2 7 9 81.8% Male 0 1 0 0 1 0 2 2 18.2% total 1 1 0 0 9 2 9 11 100.0 % Percent 9.1% 9.1% 0.0% 0.0% 81.8% 18.2% 81.8% 100.0% ~ VVhite 81.8 Race Amedcan Indian 0.0% Black 9.1% Hispanic Asian 9.1% 0.0% Under 40 81.8% Male 18.2% Gender Female 81.8% Age 40 + 18.2% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - HR 38 City of Denton Workforce Analysis Technology Services* Alex Pettit, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 2 0 0 0 11 9 4 13 54.2% :Male 0 0 0 0 11 5 6 11 45.8% Total 2 0 0 0 22 14 10 24 100.0% Percent 8.3% 0.0% 0.0% 0.0% 91.7% 58.3% 41.7% 100.0% ~ * Includes Technology Services and Reprographic Services. White 91.7% Race Hispanic American Black 0.0% Indian 8.3% 0.0% Asian 40 + 58.3% Gender Male Female 45.8% 54.2% Age Under 40 41.7% Data does not include special agreement, seasonal, and/or temporary employees. 3/22100 Department & ACM Statistics.xls - Technology Srvcs 39 City of Denton Workforce Analysis Utilities* Howard Martin, Assistant City Manager Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 5 5 0 1 70 36 45 81 21.1% Male 13 28 2 4 256 147 156 303 78.9% Total 18 33 2 5 326 183 201 384 100.0% Percem 4.7% 8.6% 0.5% 1.3% 84.9% 47.7% 52.3% 100.0% ~ * Includes Water, Wastewater, Solid Waste, Electric, and Financial/Administrative Services. White 84.9% Race Amedcan Black Hispanic Indian 8.6% 0.5% 4.7% ' 1.3% 40 + 47.7% Male 78.9% Gender Age Female 21.1% Under 40 52.3% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - ACM-Utilities 40 City of Demon Workforce Analysis Water and Wastewater Utilities* Vacant, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 2 1 0 0 14 6 11 17 13.5 % Male 6 11 1 3 88 54 55 109 86.5 % total 8 12 1 3 102 60 66 126 100.0% Percent 6.3% 9.5% 0.8% 2.4% 81.0% 47.6% 52.4% 100.0% ~ * Includes Water Administration, Water Distribution, Water Meter & Repair, Water Engineering, Wastewater Collection, Wastewater Engineering, Drainage, Industrial Pre-Treatment, Water Lab, Wastewater Lab, Bio-Solids, Wastewater Treatment, Wastewater Administration, and Water Production. White 81.0% Race American Black Hispanic Indian 6.3% 9.5% 0.8% 2.4% 40 + 47.6% Male 86.5% Gender Age Female 13.5% Under 40 52.4% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Water & Wastewater Utilities 41 City of Denton Workforce Analysis Solid Waste* Charlie Watkins, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 1 0 0 1 6 1 7 8 12.9 % Male 4 14 1 0 35 25 29 54 87.1% Total 5 14 1 1 41 26 36 62 100.0% Percent 8.1% 22.6% 1.6% 1.6% 66.1% 41.9% 58.1% 100.0% ~ * Includes Solid Waste Administration, Residential, Commercial, Recycling, and Landfill. f 'h f '" White 66.1% Race Asian American Hispanic 1.6% Indian 22.6% 1.6% Black 8.1% 40 + 41.9% Gender Male Female 87.1% 12.9% Age Under 40 58.1% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Solid Waste 42 City of Demon Workforce Analysis Electric Utility* Sharon Mays, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 0 1 0 0 18 10 9 19 14.8% Male 3 3 0 1 102 49 60 109 85.2% Total 3 4 0 1 120 59 69 128 100.0% Pen:em 2.3% 3.1% 0.0% 0.8% 93.8% 46.1% 53.9% 100.0% ~ Includes Electric Administration, Electric Production, Utilities Dispatch, Electric Distribution, Electric Substations, Electric Engineering, Electric Metering, Fiber GIS, Electric Communications and Electric Marketing. VVhite 93.8% Race Black 2.3% Male 85.2% American Indian 0.0% Asian 0.8% Gender 40 + 46.1% Age Female 14.8% Under 40 53.9% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics,xls - Electric 43 City of Demon Workforce Analysis Financial and Administrative Services* Earl Crews, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 2 3 0 0 29 17 17 34 65.4% Male 0 0 0 0 18 11 7 18 34.6% Total 2 3 0 0 47 28 24 52 100.0% Percent 3.8% 5.8% 0.0% 0.0% 90.4% 53.8% 46.2% 100.0% ~ * Includes Utility Finance Administration, Public Communications, Utility Customer Service, and Fleet Services. White 90.4% Race American Black Hispanic Indian 5.8% 0.0% Asian 0.0% 40 + 53.8% Male 34.6% Gender Age Female 65.4% Under 40 46,2% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - FinanciaI-Admin Services 44 City of Denton Workforce Analysis Development Services* David Hill, Assistant City Manager Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 4 6 0 0 54 32 32 64 36.8 % Male 8 22 0 1 79 59 51 110 63.2% Total 12 28 0 1 133 91 83 174 100.0% Percent 6.9% 16.1% 0.0%. 0.6% 76.4% 52.3% 47.7% 100.0% ~ * Includes Planning and Development, Engineering and Transportation, Facilities Management, Econotrfic Development, and Parks and Recreation. White 76.4% Race Asian Amedca~ 0.6% Indian 0.0% Male 63.2% L Black 6.9% Hispanic 16.1% 40 + 52.3% Gender Age Female 36.8% Under 40 47.7% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - ACM-Development Services 45 City of Denton Workforce Analysis Planning & Development* Doug Powell, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 2 5 0 0 16 12 11 23 56.1% Male 1 i 0 0 16 9 9 18 43.9% Total 3 6 0 0 32 21 20 41 100.0% Percent 7.3% 14.6% 0.0% 0.0% 78.1% 51.2% 48.8% 100.0% ~ * Includes Planning, Community Development, Building Inspections, Consumer Health, and Code Enforcement. White 78.1% Race American Black Hispanic Indian 14.6% 0.0% 7.3% 40 + 51.2% Gender Male Female 43.9% 56.1% Age Under 40 48.8% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Planning & Development 46 City of Demon Workforce Analysis Engineering & Transportation* Jerry Clark, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Asian White 40 + Total Percent Black Hispanic Indian 40 Female 1 1 0 0 4 3 3 6 12.0% Male 4 12 0 0 28 23 21 44 88.0% Total 5 13 0 0 32 26 24 50 100.0% Percent 10.0% 26.0% 0.0% 0.0% 64.0% 52.0% 48.0% 100.0% ~ * Includes Engineering and Transportation, Streets, Traffic Control, and Public Transportation. White Asian 0.0% Race Indian 0.0% Hispanic 26.0% Black 10.0~ 40 + 52.0% Gender Age Under 40 48.0% Male 88.0% Female 12.0% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Eng-Transportation 47 City of Denton Workforce Analysis Facilities Management Brace Henington, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total .Percent Female 0 0 0 0 3 2 1 3 27.3% Male 0 0 0 0 8 5 3 8 72.7% total 0 0 0 0 11 7 4 11 100.0% Percent 0.0% 0.0% 0.0% 0.0% 100.0% 63.6% 36.4% 100.0% ~ Race Amedcan Hispanic Indian Black 0.0% 0.0% Asian 0.0~ 0.0% 100.0% 40 + 63.6% Male 72.7% Gender Female 27.3% Age Under 40 36.4% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Facilities Mgmt 48 City of Demon Workforce Analysis Economic Development* Linda Ratliff, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Asian White 40 + Under 40 Total Percent Black Hispanic Indian Female 0 0 0 0 7 6 1 7 77.8% Male 0 0 0 0 2 1 1 2 22.2% Total 0 0 0 0 9 7 2 9 ~00.0% Percent 0.0% 0.0% 0.0% 0.0% 100.0% 77.8% 22.2% 100.0% ~ * Includes Airport, Main Street and Economic Development. Race Black Asian American Hispanic 0.0% - 0.0% Indian 0.0% 0.0% VVhite 100.0% Age Gender Under 40 40 + 22.2% 77.8% Male Female 77.8% Data does not include special agreement, seasonal, and/or temporary employees. 3/22/00 Department & ACM Statistics.xls - Econ Development 49 City of Denton Workforce Analysis Parks & Recreation* Ed Hodney, Director Employee Data as of: January 13, 2000 Race Age Gender Gender American Under Black Hispanic Indian Asian White 40 + 40 Total Percent Female 1 0 0 0 24 9 16 25 39.7% Male 3 9 0 1 25 21 17 38 60.3% Total 4 9 0 1 49 30 33 63 100.0% Percent 6.3% 14.3% 0.0% 1.6% 77.8% 47.6% 52.4% 100.0% ~ * Includes Parks Administration, Recreation and Parks Maimenance. White 77.8% Race Hispanic American Black 14.3% 6.3% Indian 0.0% 1.6% 40 + 47.6% Age Under 40 52.4% Gender Male Female 60.3% 39.7% Datadoesnotincludespecialagreement, seasonal, and/ortempora~ employees. NOTE: A COLOR COPY OF THIS REPORT IS FILED IN THE CITY SECRETARY*S EXHIBIT FILE UNTIL 3/02 3/22/00 Department & ACM Statistics.xls - Parks and Recreation 50