HomeMy WebLinkAboutJuly 12, 2011 AgendaAGENDA
CITY OF DENTON CITY COUNCIL
July 12, 2011
After determining that a quorum is present, the City Council of the City of Denton, Texas will
convene in a Work Session on Tuesday, July 12, 2011 at 3:30 p.m. in the Council Work Session
Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be
considered:
WORK SESSION
1. Citizen Comments on Consent Agenda Items
This section of the agenda allows citizens to speak on Consent Agenda Items only. Each
speaker will be given a total of three (3) minutes to address any items he/she wishes that
are listed on the Consent Agenda. A Request to Speak Card should be completed and
returned to the City Secretary before Council considers this item.
2. Requests for clarification of agenda items listed on the agenda for July 12, 2011.
3. Receive a report, hold a discussion and give staff direction on the new Animal Care and
Adoption Center constriction planning process.
4. Receive a report, hold a discussion and give staff direction regarding nominations to the
City's Boards and Commissions.
5. Receive a report, hold a discussion and give staff direction regarding the request for City
sponsorship of the First Annual Susan G. Komen Race for the Cure to be held in Denton
on September 24, 2011.
Following the completion of the Work Session, the City Council will convene in a Closed
Meeting to consider specific items when these items are listed below under the Closed Meeting
section of this agenda. When items for consideration are not listed under the Closed Meeting
section of the agenda, the City Council will not conduct a Closed Meeting 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.
CLOSED MEETING
1. Closed Meeting:
A. Deliberations regarding Real Property - Under Texas Government Code Section
551.072; Consultation with Attorneys - Under Texas Government Code Section
551.071.
1. Discuss, deliberate, and receive information from staff and provide staff
with direction pertaining to the acquisition or the condemnation of a fee
simple tract, a temporary constriction easement tract, and a public utility
easement tract for the Mayhill Road Widening and Improvements project,
affecting real property tract in the M. Forrest Survey, Abstract No. 417, in
the City and County of Denton, Texas. Consultation with the City's
City of Denton City Council Agenda
July 12, 2011
Page 2
attorneys regarding legal issues associated with the acquisition or
condemnation of the tracts referenced above where a public discussion of
these legal matters would conflict with the duty of the City's attorneys to
the Denton City Council under the Texas Rules of Disciplinary Conduct of
the State Bar of Texas, or would jeopardize the City's legal position in any
administrative proceedings or potential litigation.
B. Deliberations regarding consultation with the City Attorney - Under Texas
Government Code Section 551.071, Deliberations regarding Economic
Development Negotiations - Under Texas Government Code Section 551.087.
1. Receive a report and hold a discussion regarding legal issues on matters in
which the duty of the attorney to the governmental body under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of Texas
clearly conflicts with the provisions of the Texas Open Meetings Act,
Chapter 551 of the Texas Government Code. Also hold a discussion
regarding a grant application from Joe Northern for the Downtown
Incentive Grant Program with respect to redevelopment of a building on
207 N. Bell Avenue. This discussion shall include commercial and
financial information the City Council has received from Joe Northern
which the City Council seeks to have locate, stay, or expand in or near the
territory of the city, and with which the City Council is conducting
economic development negotiations; including the offer of financial or
other incentives.
C. Consultation with Attorneys - Under Texas Government Code Section 551.071.
1. Consult with City's attorneys regarding legal rights, restrictions and
obligations under Texas law, associated with overlapping extraterritorial
jurisdictions claimed by municipalities neighboring the City of Denton,
Texas, where a public discussion of such legal matters would conflict with
the duty of the City's attorneys to the City of Denton, Texas under the
Texas Disciplinary Rules of Professional Conduct of the State Bar of
Texas, and where such matters may become an issue in potential litigation.
2. Consult with, and provide direction to, City's attorneys on legal issues
associated with existing and potential regulation of gas well drilling and
exploration within the Denton city limits and extraterritorial jurisdiction,
specifically including, but not limited to, the following general categories,
as they may relate to such regulations:
a. Legal issues and strategies associated with proposed and potential
modifications to existing local regulations, as they relate to
existing, proposed and potential gas well drilling and exploration
within the Denton city limits and extraterritorial jurisdiction, as
well as limitations imposed upon the City's regulatory authority,
with regard to such issues and strategies; and
b. Legal issues and strategies associated with possible preemption of
local regulatory standards relating to gas well drilling and
exploration with the Denton city limits and extraterritorial
City of Denton City Council Agenda
July 12, 2011
Page 3
jurisdiction, by existing, proposed and potential Federal and State
legislation, and administrative regulations.
3. Consult with, and provide direction to, City's attorneys on legal issues
associated with previous annexations of land, specifically including, but
not limited to, legal and strategic issues associated with the modification,
negotiation and enforcement of non-annexation agreements as they relate
to building on lots within plats approved prior to the execution of non-
annexation agreements, as well as more general legal and strategic issues
relating to the annexation of such area.
D. Deliberations Regarding Real Property - Under Texas Government Code Section
551.072; and Consultation with Attorneys - Under Texas Government Code
Section 551.071.
1. Discuss, deliberate and receive information from Staff and provide Staff
with direction pertaining to the possible acquisition of certain real property
more particularly described as a 0.93 acre tract, in the M. Yoacham
Survey, Abstract No. 1442, in the City of Denton, Denton County, Texas.
Consultation with the City's attorneys regarding legal issues associated
with the potential acquisition of the tract referenced hereinabove, where a
public discussion of these legal matters would conflict with the duty of the
City's attorneys to the Denton City Council under the Texas Disciplinary
Rules of Professional Conduct of the State Bar of Texas, or would
jeopardize the City's legal position in any potential litigation.
ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING
WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS
GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR
VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF
THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION-). THE CITY COUNCIL
RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS
AUTHORIZED BY TEX. GOVT. CODE, §551.001, ET SE Q. (THE TEXAS OPEN MEETINGS ACT) ON ANY
ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED
MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS
OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071-551.086 OF THE TEXAS OPEN
MEETINGS ACT.
Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at
City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be
considered:
REGULAR MEETING
1. PLEDGE OF ALLEGIANCE
A. U. S. Flag
B. Texas Flag
"Honor the Texas Flag - I pledge allegiance to thee, Texas, one state under God, one and
indivisible."
City of Denton City Council Agenda
July 12, 2011
Page 4
2. PROCLAMATIONS/PRESENTATIONS
A. Proclamations/Awards
3. CITIZEN REPORTS
A. Review of procedures for addressing the City Council.
B. Receive citizen reports from the following:
1. Diane Sloan regarding how the Code is being interpreted.
4. CONSENT AGENDA
Each of these items is recommended by the Staff and approval thereof will be strictly on
the basis of the Staff recommendations. Approval of the Consent Agenda authorizes the City
Manager or his designee to implement each item in accordance with the Staff recommendations.
The City Council has received background information and has had an opportunity to raise
questions regarding these items prior to consideration.
Listed below are bids, purchase orders, contracts, and other items to be approved under
the Consent Agenda (Agenda Items A - K). This listing is provided on the Consent Agenda to
allow Council Members to discuss or withdraw an item prior to approval of the Consent Agenda.
If no items are pulled, Consent Agenda Items K below will be approved with one motion. If
items are pulled for separate discussion, they may be considered as the first items following
approval of the Consent Agenda.
A. Consider approval of a resolution of the City of Denton, Texas approving a
revised City personnel policy regarding Equal Employment Opportunity; and
declaring an effective date.
B. Consider approval of a resolution of the City of Denton, Texas approving a
revised City personnel policy regarding Harassment Prevention/Workplace
Abuse; and declaring an effective date.
C. Consider approval of a resolution of the City of Denton, Texas approving a
revised City personnel policy regarding Anti-Substance Abuse and Rehabilitation;
and declaring an effective date.
D. Consider approval of a resolution of the City of Denton, Texas approving a
revised City personnel policy regarding Demotions; and declaring an effective
date.
E. Consider approval of a resolution of the City of Denton, Texas approving a
revised City personnel policy regarding a Worker's Compensation/Salary
Continuation Program; and declaring an effective date.
F. Consider adoption of an ordinance of the City of Denton authorizing the City
Manager or his designee to execute a purchase order through the Buy Board
Cooperative Purchasing Network for the replacement of two existing Bomb
Technician Response vehicles for the City of Denton Fire Department; providing
for the expenditure of funds from the Urban Areas Security Initiative Grant
City of Denton City Council Agenda
July 12, 2011
Page 5
therefore; and providing an effective date (File 4743-Purchase of Two Bomb
Response Vehicles for the City of Denton Fire Department awarded to Caldwell
Country Chevrolet in the total amount of $139,576).
G. Consider adoption of an ordinance of the City of Denton, Texas providing for,
authorizing, and approving the expenditure of funds for the purchase of Cem-
Lime from TXI, which is available from only one source in accordance with the
pertinent provisions of Chapter 252 of the Texas Local Government Code
exempting such purchases from the requirements of competitive bidding; and
providing an effective date (File 4747-Purchase of Cem-Lime for Street
Department in the unit price amount of $135/dry ton for an annual estimated
amount of $300,000).
H. Consider adoption of an ordinance authorizing the City Manager of the City of
Denton, Texas, or his designee, to execute for and on behalf of the City a Pipeline
Crossing Agreement, by and between the City of Denton, Texas, and the Union
Pacific Railroad Company, relating to the constriction, maintenance and
operation of a sanitary sewer pipeline within the railroad right-of-way, located
immediately north of said railroad right-of-way's intersection with McKinney
Street at Mile Post: 718.95, Choctaw Subdivision within the Buffalo Bayou,
Brazos and Colorado Railroad Company Survey, Abstract Number 185, City and
County of Denton, Texas; authorizing the expenditure of funds therefor; and
providing an effective date.
L Consider appointments to Council committees.
J. Consider approval of the minutes of:
June 7, 2011
June 14, 2011
June 21, 2011
K. Consider adoption of an ordinance of the City of Denton, Texas authorizing the
City Manager of his designee to execute a real estate contract of sale between the
City of Denton and Black Bear Properties, LLC and other documents necessary to
acquire an approximate 4.024 acre tract of land, being located in the M. Forrest
Survey, Abstract Number 417, City and County of Denton, Texas; authorizing the
expenditure of funds therefore; and providing an effective date. (Mayhill Road
Widening and Improvements project)
5. ITEMS FOR INDIVIDUAL CONSIDERATION
A. CONTINUED - Consider adoption of an ordinance of the City Council of the
City of Denton, Texas, approving a grant application from Joe Northern from the
Downtown Incentive Grant Program not to exceed $5,000; and providing for an
effective date. The Economic Development Partnership Board recommends
denial (7-0).
City of Denton City Council Agenda
July 12, 2011
Page 6
6. CITIZEN REPORTS
A. Review of procedures for addressing the City Council.
B. Receive citizen reports from the following:
1. Nell Yeldell regarding water and soil contamination and the definition of
minority and majority.
2. Zorobabel Gomez, Jr. regarding citizen input regarding public policy.
7. CONCLUDING ITEMS
A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries
from the City Council or the public with specific factual information or recitation
of policy, or accept a proposal to place the matter on the agenda for an upcoming
meeting
AND
Under Section 551.0415 of the Texas Open Meetings Act, provide reports about
items of community interest regarding which no action will be taken, to include:
expressions of thanks, congratulations, or condolence; information regarding
holiday schedules; an honorary or salutary recognition of a public official, public
employee, or other citizen; a reminder about an upcoming event organized or
sponsored by the governing body; information regarding a social, ceremonial, or
community event organized or sponsored by an entity other than the governing
body that was attended or is scheduled to be attended by a member of the
governing body or an official or employee of the municipality; or an
announcement involving an imminent threat to the public health and safety of
people in the municipality that has arisen after the posting of the agenda.
B. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the
Texas Open Meetings Act.
C. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the
Texas Open Meetings Act.
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 2011 at o'clock
(a.m.) (p.m.)
CITY SECRETARY
NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS 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 INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Police
ACM:
Fred Greene
SUBJECT
Receive a report, hold a discussion, and give
Adoption Center constriction planning process.
staff direction on the new Animal Care and
BACKGROUND
On November 2, 2010, the City Council received a report from staff regarding the proposed
revisions to the Animal Care and Adoption Center Master Plan, an update on the capital
campaign being conducted by the Denton Animal Shelter Foundation (DASF), and a proposed
timeline for the planned project. Council provided staff with direction to move forward with the
proposed revisions to the Master Plan and set a tentative starting point of January 2012 for the
selection of an architect and the development of constriction documents for the facility. This
direction was based, in part, on the anticipated completion of the DASF capital campaign goal of
$2 million dollars.
The development of constriction documents is a crucial step in the project. These documents are
the central point in determining an accurate cost estimate for the project. That estimate is vital to
the DASF capital campaign and to the City in determining the financial obligation for the shelter
constriction. In order to begin constriction, the City must ensure that sufficient funds are
available to complete the project. Without the constriction documents, project estimates can only
be made using ballpark figures of $215 - $250 per square foot. These estimates provide a
potential cost range of more than $700,000 for the total project.
The DASF capital campaign includes cash, pledges, and donations of in-kind services for the
shelter constriction. To date, the campaign totals more than $1.48 million in cash and pledges.
Actual cash contributions will equate to 67% of the campaign funds by the end of 2011, totaling
$988,975. The determination of more accurate project estimate will allow the City to make an
informed decision regarding the DASF campaign and when actual constriction can begin.
Recently, a private donor approached DASF with an offer to donate the general contractor
services for the constriction of the project. Standard estimates, including those in the Master
Plan, project the general contractor services to account for approximately thirteen percent (13%)
of the constriction costs. However, the exact value of the donation cannot be accurately
calculated until constriction documents are completed. It must be noted that this donation would
only apply provided that the donor completed the standard bid process and was selected to
perform the work. There are also offers to provide furniture for the shelter and for reduced fees
Agenda Information Sheet
Animal Care and Adoption Center
July 12, 2011
Page 2
on other constriction-related services. The anticipated value of these in-kind donations should
put the DASF campaign total over $2 million.
Constriction documents for this project are expected to require up to 9 months for completion.
Beginning this process in the next few months will allow completion of the documents
somewhere near April 2012.
Architectural Selection
Larry Connolly, Connolly Architects and Consultants, began working with the City in 2005 on
the Feasibility Study for the current shelter. This firm was selected from a group of architects
that specialize and had prior experience in animal shelter design. In 2008, he was asked to
produce the Animal Care and Adoption Center Master Plan. The projected floor plan being used
by DASF for the capital campaign comes directly from the Master Plan. Larry Connolly also
produced the rendering used for the facility naming presentation in 2010. Article 2.1 of the 2007
agreement between the City and DASF provides that a joint committee of representatives from
the City and the DASF Board will make recommendations to the City Council concerning the
selection of an architect for the project. This committee worked directly with Larry Connolly
during the development of the Master Plan, and would prefer to continue working with him on
the development of constriction documents. Continuing to utilize the services of Connolly
Architects and Consultants is permissible under the City's procurement practice, given
Connolly's extensive knowledge and prior involvement in the project. The use of Connolly
Architects is dependent on the ability to negotiate an acceptable contract for design services.
OPTIONS
1. Council can direct staff to proceed with architect selection and the development of
constriction documents.
2. Council can direct staff to maintain the January 2012 start date for architect selection and
constriction documents.
3. Council can direct staff to negotiate with Connolly Architects for the development of the
constriction documents.
4. Council can direct staff to utilize the Request for Qualifications (RFQ) process to select
an architect.
PRIOR ACTION/REVIEW
12/13/05 - Council Work Session on Animal Shelter Feasibility Study.
02/14/06 - Council Work Session on Denton Animal Shelter Foundation.
08/07/07 - Council Work Session on Denton Animal Shelter Foundation Agreement.
12/01/08 - Council Work Session on Animal Care and Adoption Center Master Plan.
11/02/10 - Council Work Session on Animal Care and Adoption Center Master Plan Revisions.
FISCAL IMPACT
The Design Services component of the Master Plan includes site survey; geotechnical site
analysis; architectural design, landscape design, civil engineering, mechanical/electrical and
Agenda Information Sheet
Animal Care and Adoption Center
July 12, 2011
Page 3
plumbing; structural engineering; independent cost estimating; and reimbursable expenses. The
package is estimated to be 11% - 12% of the constriction costs. The current cost range for the
shelter is $215 - $250 per square foot. The planned shelter is 15,216 ft2. Based on these figures,
staff anticipates that the cost of the design services package will be $360,000 - $450,000. Staff
anticipates the use of existing CIP bond funds or the issuance of a reimbursement ordinance for
future CIP bond funds to pay for this expense. During the November 2, 2010 Council Work
Session, Council agreed to provide up to $3 million in funding for the total shelter constriction
package. Staff anticipates that this expense would be part of that funding total.
Respectfully submitted,
Paul W. Abbott
Chief of Police
Prepared by:
Scott Fletcher, Captain
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: City Manager's Office
CM: George Campbell, City Manager
SUBJECT
Receive a report, hold a discussion and give staff direction regarding nominations to the City's
Boards and Commissions.
BACKGROUND
Attached are the nominations Council has submitted for board and commission positions since
the June 21st meeting and the vacancies that still need nominations. Council will be voting on
approval of these nominations at the July 19th meeting.
If you require any further information, please let me know.
Respectfully submitted:
Jennifer Walters
City Secretary
S:ACity- Secretan-Toards & Comm\Agenda Info Sheet for Nominations WSII.doc
07/08/2011
BOARD AND COMMISSION NOMINATIONS
Board
Council Member
Nomination
Airport Advisory Board
Roden
Bill Schofield (R)
Gregory
Engelbrecht
Watts
Kamp
Jim Clark (R)
King
Burroughs
Karen Dickson (N)
Animal Shelter Advisory Committee
Engelbrecht
Watts
Burroughs
Kari Jo Zika (N)
Community Development Advisory Cmte.
Roden
Dorothy Watts (R)
Gregory
Amber Briggle (N)
Watts
Margaret Fiedler (N)
Kin
Health & Building Standards Commission
Roden
Engelbrecht
Jeff Wawro (R)
Kamp
Jim Strange (R)
King
Burroughs
Frank Conner (R)
All
David Hoenin (Gregory) (N)
Historic Landmark Commission
Roden
Michelle Tangora Lynn (N)
Gregory
Deb Conte (N)
Engelbrecht
Watts
Kamp
King
All
Murray Ricks (R)
Human Services Advisory Cmte.
Roden
David Sanchez (N)
Engelbrecht
Kamp
Teddy Griffin (R)
King
Burroughs
Sheryl English (R)
All
Victoria Campbell (N)
All
Mari Metzgar (R)
All
Library Board
Roden
Anyah Martinez (R)
Gregory
Kamp
Kin
R - Reappointment
N - New Nomination
07/08/2011
BOARD AND COMMISSION NOMINATIONS
Board
Council Member
Nomination
Parks, Recreation & Beautification Board
Roden
Vicki Byrd (R)
King
Burroughs
Janet Shelton (R)
Planning and Zoning Commission
Roden
Devin Taylor (N)
Gregory
Brian Bentley (R)
Watts
Burroughs
Walter Ea leton (R)
Public Art Committee
Roden
Billy Mohair (R)
Kamp
Carol Phillips (R)
Kin
Public Utilities Board
Roden
John Baines (R)
Gregory
Bill Cheek, ,Jr. (R)
Kamp
Dick Smith (R)
Burroughs
Leonard Herring (N)
Traffic Safety Commission
Watts
Kamp
Wally Campbell
King
Burroughs
Brian Finn (N)
Zoning Board of Adjustment
Roden
Millard Heath (R)
Engelbrecht
Reggie Hill (R)
Watts
King
Burroughs
Phil Jordan (R)
All
Craig Thomas - Gregory (N)
All
Gre Johnson (R)
Economic Development Partnership
All
Carol Ann Simmons - Kamp (N)
Board
R - Reappointment
N - New Nomination
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Economic Development
ACM: Jon Fortune
SUBJECT
Receive a report, hold a discussion and give staff direction regarding the request for City
sponsorship of the First Annual Susan G. Komen Race for the Cure to be held in Denton on
September 24, 2011.
BACKGROUND
Representatives from Susan G. Komen for the Cure visited with the Mayor, Mayor Pro Tem, and
several City staff on June 20, 2011. They provided information (attached) on their first Denton
Race for the Cure and requested in-kind sponsorship from the City of Denton. Specifically, they
requested Police and Fire/EMS support and barricades for street closures. In return, the City
would be considered an event sponsor at a sponsorship level equal to the in-kind value. As you
know, staff is preparing sponsorship guidelines for Council's approval. This event would qualify
for sponsorship under the draft guidelines.
The organization recently acquired several new counties to support, and Denton was chosen as
the most appropriate City in which to hold a new one-day race. This is planned as an annual
event. This year's race is expected to attract 3,000 to 5,000 attendees. Komen for the Cure has
been working with the University of North Texas (UNT) and together they have identified a race
course, which contains the majority of the race on the UNT campus. The race will be held on
September 24th, the same day as UNT's second home game this year, and UNT will be "Going
Pink" for the occasion.
The costs to provide these services are outlined below:
Police: Denton Police Department representatives met with the UNT Police Department and
learned that UNT has committed to cover most of the 30 plus intersections along the race route.
Denton Police are being asked to cover eight intersections and to provide two motorcycle
officers and at least two bike officers to assist with monitoring certain portions of the route.
Estimated Cost: $2,800. Note: The estimate includes 12 officers and one supervisor. If
a barricade company is hired to handle the street closures, the need for three or four
officers could be eliminated and the cost would be approximately $2,000.
Fire/EMS: The Fire Department estimates the need for eight medical personnel at two medical
stations.
Estimated Cost: $2,250
Street Barricades: A barricade company estimate for this service indicates a cost of:
$1,985 for the 5K course and
$1,145 for the 1 mile course
$3 130
Agenda Information Sheet
Susan G. Komen Race for the Cure
July 12, 2011
Page 2
This cost does not include the development of a traffic control plan.
The following was pulled from the Susan G. Komen for the Cure website to provide Council
with information on the organization:
Komen for the Cure is the world's largest grassroots network of breast cancer survivors
and activists fighting to save lives, empower people, ensure quality care for all and
energize science to find the cures. Thanks to events like the Komen Race for the Cure, we
have invested more than $1.9 billion to fulfill our promise, becoming the largest source of
nonprofit funds dedicated to the fight against breast cancer in the world.
Since 1982, Komen for the Cure has played a critical role in every major advance in the
fight against breast cancer - transforming how the world talks about and treats this
disease and helping to turn millions of breast cancer patients into breast cancer survivors.
We are proud of our contribution to some real victories.
ESTIMATED SCHEDULE OF PROJECT
Race coordinators would begin setting up for the race on September 21, 2011. The race would
be held the morning of September 24 at 7:15 a.m. The event would end at 10:00 a.m. A detailed
schedule is attached.
FISCAL INFORMATION
Estimated costs to provide requested services are:
Police: $2,000 to $2,800
Fire: $2,250
Barricades: $3,130
Total $7,380 to $8,180
Komen for the Cure representatives requested in-kind services, and assumed that the City could
provide City-owned barricades. We do not have sufficient barricades to handle the race. For
other events involving street closures, we require a professional traffic control plan and barricade
plan. If Council should consider funding the barricades, a funding source must be identified.
Fire and Police estimates reflect over-time personnel for this event.
EXHIBITS
Susan G. Komen for the Cure Information
Respectfully submitted:
{,V
Linda Ratliff, Director
Economic Development Department
•
Susan
Komen4
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'.TEXAS
Event Description:
City of Denton
Susan G. Komen North Texas Denton Race for the Cure*
The first-ever Susan G. Kamen North Texas Race for the Cure in Denton on Saturday, September 24, 2011, will
have an estimated 3,000 - 5,000 attendees from Denton and the surrounding Counties. The Race for the Cure i5
our greatest tool for raising both funds and awareness In the fight against breast cancer. fur fundraising goal
for the Denton Race is $300,000. This landmark event will generate funds from participant registration fees,
individual and team fundraising, as well as sponsor contributions.
in order to minimize event expenses and fnaxlmize mission Investment, we rely heavily on our generous in-kind
and cash sponsors. This model has proven successful for our Plano Race, where our expenses have year-after-
year been well below 2D% of total funds raised. This directly impacts how much we are able to grant back out to
the communities we serve.
We will invest 75% of the net funds raised In local breast health education, screening and treatment programs
for underserved women and men in Collin, Cooke, Denton, Fannin, Grayson, Hunt, Montague, and Wise
countles; the remaining 2S% will fund national scientific research. WltIn your help we will be able to impact even
more livesl
Potential Partnership Elements,
1. Pre-(face liaison
2, Race Day Support Services
3. Race Set-up/Race Day On-Site Security
4. Course-6RelatedTraffic Control Support
5. Educational Booths (Fire, Safe#y and/or other triity initiatives)
City of Denton Benefits Could Include,
Opportunityto connect with city and county residents, visitors far U NT fam i ly weekend and Indiana
game, visitors from surrounding counties on an deep emotional level by supporting the leading health
concern among U.S. women and the leading charity in the fight against breast cancer
Additional revenue for City of Denton businesses generated 17y viskarsto the area drawn by the Denton
Race
All benefits of Kamen Race sponsorshlp commiserate with value of the Clty of Denton's contribution -
could include on-event signage, Inclusion In Race advertising, logolname on official Race t-sh!rl,
Inclusion In Kamen North Texas corn munication assets*, breast health education workshop for city
employees and/or residents, etc...see brochure for details (please remember that the deadline for
Kamen North Texas Denton Race collateral inclusion is June 23, 2011)
• Role 1n Race Day agenda for Mayor or other designated city offlcial
Advisory Role for a city representative either on our Denton Race Committee and/orsuggesting
additional partnerships that Kamen North Texas should pursue in connection with the Race
*Kofwn North Texas communication MO.' reach:
• Komezinorthtexas. arg (55,06NI
■ X-weekly Denton Mare Mews *du eCtirlg 10,000+)
■ Komen,vrx Facebvok 0„900+J
Kamen Nrx Twitter 2006)
UNT MEAN GREEN + fCOMEN NTX COLLABORATION OVERVIEW
•
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Pre-event collaboration -Jury through September
II. Denton Dace activation- Sat, September 24th
Ill. Mean Green Goes Pink merchandise-August and beyond
IV, Mean Green Goes Pink Game Night: activation at football game vs. Indiana State -Sat, September 24`"
DETAILS
Pre event collaboration -July through September: Kamen to attend various UNT events to promote the
Denton Race and Evenfng football game benefiting Kornern NT
o Kornen NTX speaker+ educational materials at UHT Women's Football Clinic (on July 36t)
o Kamen NTX booth at UNT Athletics Dept 5K (on August 6, finished by S AM, in its 3`d year, -750
participants, mostly runners)
o Kornen NTX booth at UNT student/pared orientation Resource Fair Expo (at basketball coliseum)
o Kamen NTX booth at Mean Green Fling Expo (Wed, Aug. 24'"--day before classes start, in the middle of
campus, -12,000 people attend)
o Kamen NTX presence at Rec Extravaganza (Aug 31°x)
o Kamen NTX presence at the Denton "Hosp€tallty Hill'* Block Party far Family Weekend and Indiana guests
staying at the Best Western, Hilton Garden Inn and the Courtyard (Friday, Sept. 23'x)
ll. Denton Race activation -Sat, September 20' at UNT's Tradition Fields
o UNT billing as "Host Sponsor'
* Need to set Race course
0 1,000+ pas king spats available for Sorvivors, Sponsors and Key Volvnteers
a Other partlcipants (not residing on campus) gill be encouraged to park at Golden Tr[angIa Mall and be
shuttled over to UNT
o Explore if U NT buses can be used for shuttles
o Athletics department booth and bounce horse in Kids for the Cure area (also at Plana Race)
o IntermuraI department booth
o Booths for other departments (Student Life, Greek Life, etc.)--TBD
o UNT Athletics department Race team(s) - ask staff, players, students and fans to join
o UNT Presldent to start 1 Mile Family Fun Run---TBD
o Kamen NTH{ can set up a dlscount code for folks coming in for family weekend to get $5 off their benton
Race reglstrat[on
o Leverage 2TA and Greek Life to create volunteer teams, recru[t wlaIk/runners, and Tinkled fink ports-potty
decoration contest participants/sponsors
UPDATED. 6/2012011 9:54 AM page 1
aoea ~s
UNT MEAN GREEN + KOMEN NTX COLLABORATION OVERVIEW
III. Mean Green Goes Pink IMGGP) merchandise -
o The UNT Bookstore will ofera specially designed, commemorative t-shirt Mean GreerF Goes Pink (MGGP) in
its stores with a "hit" day of August 15th
o The t-shirt will be offered in Women's Cut 5-XL, Adult C+ t (Unisex) 54XL or 3XL and possibly a youth line
o The retail sales price of the Item is TBD...it is likely to be similar to standard price points currently offered by
the store
o (Retail venue includes. Student Union bookstore, new stadium bookstore and online bookstore
o Addltlonai fundraising ideas Include: Saturday or weekend donation on 211 pink items sold (merchandise near
MGGP t-shirt), ask customers for a donation at register-could also offer paper pink ribbon to post in-store
(folks can write in name of person to honorlremember)
o Rodney will confirm with Jamie which UNIT logo should be used on the t-shirt
o Bookstore can highlight MGGP item (s) on home page and Facebook
o Other promotional opportunltles tould Include: via standard Family Weekend communications, UNT
Athletics events in August in new stadlum, other campus events
o Komen NTX can acknowledge MGGP and related merchandise through aurtammunicatlons assets (web,
eNews and social media)
IV. Mean Green Goes Pink Game Might: activation at football game vs. Indlana State -Sat, September 20' (this is
the 2nd home game in the new stadium, le 11 possibly be televised and it is Family Weekend)
o Kornen NTX to get 100 free tickets (for "pink section") to distribute to survivors; survivor guests pay full
price; estimate around 300 people 1n the pink section
o Kornen NTH( to host tailgate area like (rent a tent„ survivor +4-6 guests, donated food all coordinated by
Komen)-need UNT to confirm where Komen should set up
o Komen to explore Komen tailgate gift (Rally towel, cup?)
o VNT to highlight Komen NTX on the game board (PSA video, logo, etc,)
o VNT to see If any player has connection to breast canoer, if `yes' ask his survivortia do coin toss
o Mean Green players to elther wear pink wristbands, pink athletic tape or pink glare tape
o UNT Athletics tan push out a message about the MGGP game during their September 10`h game
o Otherfundraisingfawarenessidea s:
Komen NTX booths at stadlum to distri bute ed. materials collect donations
■ Special discount or gift for purchasers of game ticket if they are wearing pink, Denton Race t-shirt or a
Denton Race hib?
■ Pink on the field: UNIT Cheerleaders use pink pompoms, Survivors carne down for halftime photo, paint
on grass, on referees, stand concession sales staff, security, etc,??
■ HaINrne play Komen PSA, ask for donations online from smart phones'
■ UNT Athletics to include a quick MGGP message into their video shooting schedule In July and use this
video for pre-event promotion? Kornen NTX can help craft script.
NOTES
o We i11 need to sign a Kamen NTX Denton Race agreement for 'Host Sponsorship"
o We will need to sign Komen NTX 3rd party agreement for the Pink Game Night
o We will need to sign Korn en. NTX 3`0 party agreement for tale t-shirt sales
o Name for game night is "Mean Green Goes Pink" -this will be an the oommemorative t-shirt bookstore wall sell
o Kamen NTX to mention in social media all of the above and put pink game info on kornennorthtexas.org; would
like UNT to do the same
o Hank Dicker SVn facilitating Introductlon to Mr. & Mrs. Ice Greene far Honorary Race Chair request
o UNT Athletics will think abort other sports throughout the academic year that could do pink nights
UPDATED: 6/20/20119 :54 AM page 2
UNT MEAN GREEN 4 KOMEN NT COLLABO RAT1 0 N OVERVIEW
o Since T A21 is TV part ner for Mean Green games and Komen NTX Plano Race media sponsor, see if they will give
Mean Green Goes Pink coverage on Friday, September 23'4.
o Contact Dr. Betsy Warren, Housing Director to get RAs involved?
o Send flyer or post[ard to staff in each department (ask Survivors wanting to be involved to contact Komen
NT )-Coordinate through Office of the President?
o Share information w1th various U N T comrnunicaVon outlets: school Raper, alumni magazine, web master, rad€o
station, etc.
o Thus far, Komen NTX has been In touch with these UNTdepartmentsfofflces:
* Athletics- Hank, Jamie and Matt
■ Center for Leadership and Service-Array Simon and Kirsten Bishop
■ Greek Life- Alex Seltzer
■ IntramuraIs- Britton and Stuart
■ Office of the President-limberly D. Reasoner, Esq.
■ Parking & Transportation.-Joe Richmond
■ Police -Captain Jaynes Coffey
■ student Activities (Family Weekend) - Stephanie Lee
■ Student Activities {Mean Green Fling }--Tracy Frier
■ LINT Bookstore - Rodney and Cyndy
UPDATE=D: 6/2 0/2011. 9:54 A page 3
DENTON RACE FOR THE CURE - HIGH-LEVEL LOGISTICS REVIEW
•
susan North Twx" AM11sto
Ko m e n74 P. O. Box 426973U, Ram, 77{ 75429
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Race Set-up (Sept. 21-23, 2011
* installation of tents, start line stage, rnain stage, sound system, jumbo TV,
* Delivery and striking of event barricades, tables, chairs, trash collection, hauling, generators, port-a-lets,
lifts, carts
* Arrival aad set-up of sponsor and city booth items, products and branded vehicles
* Execution of Race Committee Site Walkthrough
+ Use of volunteers for set-up and Race Day activities managed through onIine volunteer registration
Process.
Race Day Time Line (Sept. 24, 2011):
2:45 am - Race Director Arrives
2:45am - Course Set-up Begins: Positioning of traffic barricades at key intersections (Start area - Highland &
Ave C, Highland & Ave D, W Highland & A; Finish Area (hl TX Blvd/Ave E & Eagle Dr, N TX Blv&Ave B
& Prairie St,, N TX Blvd/Ave E Hickory, N T Blvd/Ave E & Stella, N TX BivdlAve E & Sycamore,
N TX Blvd/Ave E & Chestnut
3:00arn - Balloon Arch set-up begins at Start Line and Finish Line
4-30am - Race Committee and Volunteers start arriving
5:00am Start and Finish Line Set-up by chip timing company
5,00am-6;30am - Road closures put in place by UNT Police and City of Denton (times and locations will be
agreed upon by KNTX, UNT Police and City of Denton Policc)
7:15am- I Mile Family Fun kunl alk participants start lining lip
7:30am - 1-Mile Family Fun RunJalk Starts
7:35am - Competitive Sk Run participants gather in 'l'imed Runners Corral
7:45arn - Competitive Sic Run Starts
7:55 am - Casual 5k Run/Walk Starts
9:34am - Survivor Celebration 1 Awards Ceremony Starts
10,00arn - Survivor Celebration I Awards Ceremony Ends
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AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Human Resources
All
ACM: Jon Fortune YT_
SUBJECT
Consider approval of a resolution of the City of Denton, Texas approving a revised City
personnel policy regarding Equal Employment Opportunity; and declaring an effective date.
BACKGROUND
The Human Resources (HR) department is responsible for ensuring City policies are up-to-date
and are in compliance with local, federal, and state laws. To that end, HR reviews policies from
time to time, with the assistance of the Policy Review Committee. The Policy Review
Committee is comprised of approximately 20 employees at various levels representing different
departments/divisions. The members are expected to distribute the proposed changes to individuals
in their area and solicit comments, questions, and concerns regarding the proposed changes.
Policies are typically comprised of two sections - a "Policy Statement" which is approved by
City Council and "Administrative Procedures" which are approved by the City Manager. So any
time changes are required in the "Policy Statement," the policy will be sent to the City Council
for review and approval.
One of the policies needing revisions is policy no. 100.01 - Equal Employment Opportunity. The
Genetic Information and Nondiscrimination Act (GINA) of 2008 became effective November 21,
2009. Under Title II of GINA, it is illegal to discriminate against employees or applicants
because of genetic information. Title II of GINA prohibits the use of genetic information in
making employment decisions, restricts employers and other entities covered by Title 11 from
requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of
genetic information. Although GINA has been in effect for over one year, the Equal Employment
Opportunity Commission's final regulations on GINA did not become effective until January 10,
2011. Professionals in the Human Resources field recommend employers update their Equal
Employment Opportunity and other non-discriminatory policies.
Members of the employee Policy Review Committee support the proposed changes.
OPTIONS
Approve the policy as proposed; not approve the policy; or make modifications.
Agenda Information Sheet
July 12, 2011
Page 2
RECOMMENDATION
Staff recommends that the City Council amend the Equal Employment Opportunity policy as
drafted.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
There has been no prior action or review on this agenda item.
FISCAL INFORMATION
There is no fiscal impact on the City of Denton associated with this recommendation.
EXHIBITS
Resolution
Proposed revised City of Denton Equal Employment Opportunity Policy (No. 100.01)
Respectfully sunitted:
Carla Haggmark-Romine 9
Director of Human Resources
RESOLUTION NO.
A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY
PERSONNEL POLICY REGARDING EQUAL EMPLOYMENT OPPORTUNITY; AND
DECLARING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES:
SECTION 1. Policy numbered 100.01 "Equal Employment Opportunity" of the
Personnel Policies and Procedure Manual of the City of Denton attached hereto and incorporated
by reference herein, is hereby approved as official policy of the City of Denton, Texas, and
replaces former policy 100.01.
SECTION 2. The foregoing policy is attached hereto and made a part hereof and shall be
filed in the official records with the City Secretary.
SECTION 3. This resolution shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of
2011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
ZAkew1utionsll lleeo policy,docx
CITE' OF DENTON PAGE I OF I
POLICY/ADIVIINISTRATiVF. PR0CF,nTTRF.1AnM1NTaTRATTVV nTUVv`TTXT_
SECTION: HUMAN RESOURCES
REFERENCE NUMBER:
100.01
SUBJECT: EQUAL EMPLOYMENT OPPORTUNITY
INITIAL EFFECTIVE DATE:
07/04/92
TITLE: EQUAL EMPLOYMENT OPPORTUNITY
LAST REVISION DATE:
07/12/11
POLICY STATEMENT:
It is the policy of the City of Denton to afford equal opportunity in employment to all individuals regardless
of race, color, religion, gender, sexual orientation, gender identity, age, disability status, national origin,
genetics, or any protected classification under Federal or state law. Therefore, the City is committed to the
following principles of Equal Employment Opportunity law which are designed to achieve a diversified
work force:
1. To recruit, hire and promote all job classifications without regard to race, color, religion, gender, sexual
orientation, gender identity, age, disability status, national origin, genetics, or any protected classification
under Federal or state law.
2. To base decisions of employment so as to further the principles of equal employment opportunity and
work force diversity.
3. To ensure that in-house advancement decisions are made in accordance with the principles of equal
employment opportunity by imposing only valid requirements for in-house advancement opportunities.
4. To ensure that all personnel actions, including but not limited to compensation, benefits, transfers,
layoffs, return from layoff, training, education through tuition reimbursement will be administered
without regard to race, color, religion., gender, sexual orientation, gender identity, age, disability status,
national origin, genetics, or any protected classification under Federal or state law.
5. To ensure that all facilities of the City of Denton are available to employees on a non-discriminatory
basis; and that all social and recreation programs sponsored for employees be open to participation
without regard race, color, religion, gender, sexual orientation, gender identity, age, disability status,
national origin, genetics, or any protected classification under Federal or state law.
HR/POLICY/100.01
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Human Resources
ACM: Jon Fortune
SUBJECT
Consider approval of a resolution of the City of Denton, Texas approving a revised City
personnel policy regarding Harassment Prevention/Workplace Abuse; and declaring an effective
date.
BACKGROUND
The Human Resources (HR) department is responsible for ensuring City policies are up-to-date
and are in compliance with local, federal, and state laws. To that end, HR reviews policies from
time to time, with the assistance of the Policy Review Committee. The Policy Review
Committee is comprised of approximately 20 employees at various levels representing different
departments/divisions. The members are expected to distribute the proposed changes to individuals
in their area and solicit comments, questions, and concerns regarding the proposed changes.
Policies are typically comprised of two sections - a "Policy Statement" which is approved by
City Council and "Administrative Procedures" which are approved by the City Manager. So any
time changes are required in the "Policy Statement," the policy will be sent to the City Council
for review and approval.
One of the policies needing revisions is policy no. 108.10 - Harassment Prevention/Workplace
Abuse (formally titled "Harassment Prevention"). This policy was revised to eliminate
redundancies with the language under the various forms of harassment outlined in the original
policy. We combined the many forms of harassment under one section defined as
"discriminatory harassment." We also expanded on examples of sexual harassment and added
language covering workplace abuse.
Other major changes were made to the "Administrative Procedures" that better emphasizes
protection from retaliation under this policy and addresses consensual romantic relationships.
Members of the employee Policy Review Committee support the proposed changes.
OPTIONS
Approve the policy as proposed; not approve the policy; or make modifications.
Agenda Information Sheet
July 12, 2011
Page 2
RECOMMENDATION
Staff recommends that the City Council amend the Harassment Prevention/Workplace Abuse
Policy as drafted.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
There has been no prior action or review on this agenda item.
FISCAL INFORMATION
There is no fiscal impact on the City of Denton associated with this recommendation.
EXHIBITS
Resolution
Proposed revised City of Denton Harassment Prevention/Workplace Abuse Policy (No. 108.10)
Respectfully sunitted: J
Carla Haggmark-Romine
Director of Human Resources
RESOLUTION NO.
A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY
PERSONNEL POLICY REGARDING HARASSMENT PREVENTION/WORKPLACE
ABUSE; AND DECLARING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES:
SECTION 1. Policy numbered 108.10 "Harassment Prevention/Workplace Abuse" of the
Personnel Policies and Procedure Manual of the City of Denton attached hereto and incorporated
by reference herein, is hereby approved as official policy of the City of Denton, Texas, and
replaces former policy 108.10.
SECTION 2. The foregoing policy is attached hereto and made a part hereof and shall be
filed in the official records with the City Secretary.
SECTION 3. This resolution shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 32011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
{
BY:
ZAResoiutionsV Igwassmem prevention policy_doc
CITY OF DENTON PAGE 1 OF 6
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
SECTION: HUMAN RESOURCES
REFERENCE NUMBER:
108.10
SUBJECT: STANDARDS OF CONDUCT FOR EMPLOYEES
INITIAL EFFECTIVE DATE:
12/01/87
TITLE: HARASSMENT PREVENTION/WORKPLACE ABUSE
LAST REVISION DATE:
07/12/11
POLICY STATEMENT:
The City of Denton's employees and others acting on the City's behalf are entitled to respectful treatment
in the City of Denton's workplace. A respectful workplace is about more than compliance with the law. It
is a working environment that is. free of inappropriate behavior of all kinds, including all forms of
harassment.
It is the policy of the City of Denton to prohibit any form of sexual, racial, ethnic, disability, age,
sex/gender, sexual orientation, pregnancy, national origin, genetic, or religious harassment of its
employees, volunteers, applicants, and other applicable parties. The City of Denton recognizes that any
form of harassment may be a violation of federal and state laws. The City maintains a strict policy that any
harassment in the work place or after hours outside the workplace, is not acceptable and will not be
tolerated.
It is also the policy of the City of Denton to prohibit any form of workplace abuse, including but not
limited to, persistent treatment that is humiliating, embarrassing, undignified, or bullying.
All employees, including managers, supervisors, and representatives of the City, are expected to refrain
from being disrespectful, exhibiting any unwelcome behavior, or displaying conduct toward any other
individual which could be interpreted as harassment or workplace abuse.
DEFINITIONS:
1. Discriminatory harassment is unwelcome conduct toward an individual because of his or her
genetics, age, disability, marital status, national origin, ethnicity, race or color, religion,
sex/gender, or sexual orientation, when the conduct creates an intimidating, hostile, or offensive
work environment that:
• Causes work performance to suffer; or
• Negatively affects job opportunities.
Harassment is against the law in the United States. Examples of harassment that may violate the
law and will violate this policy include, but are not limited to:
A. Oral or written communications that contain offensive name-calling, jokes, slurs, negative
HR/POLICY/108.10
PAGE 2 OF 6
POLICY/ADMINISTRATIVE PROCEDURE/ADNIINISTRATNE DIRECTIVE (Continued)
TITLE: HARASSMENT PREVENTION[WORKPLACE ABUSE REFERENCE NUMBER:
108.10
stereotyping, or threats. This includes comments or jokes that are distasteful or targeted at
individuals or groups based on genetics, age, disability, marital status, national origin, race or
color, religion, sex/gender, or sexual orientation.
B. Nonverbal conduct, such as staring, leering, and giving inappropriate gifts.
C. Visual images, such as derogatory or offensive pictures, cartoons, drawings or gestures. Such
prohibited images include those in hard copy or electronic form.
NOTE: Disability means, with respect to an individual, a physical or mental impairment that
substantially limits one or more of the major life activities of such individual, as such term is
defined in the Americans with Disabilities Act, 42 USC 12102; a record of such an impairment; or
being regarded as having such an impairment. This would include, but not be limited to, an
individual with a loss of limb, visual impairment, mobile impairment (wheelchair bound, artificial
limb, etc.), sight impairment (blindness), hearing impairment (deafness), medical conditions such
as heart disease, epilepsy, muscular dystrophy, cancer, mental illness, alcoholism, HIV disease,
and other physical and mental medical conditions which are protected by Federal law.
II. Sexual harassment is a form of harassment that is based on a person's sex or that is sex-based
behavior. It is also sexual harassment for anyone in a position of authority to tie hiring, promotion,
termination or any other condition of employment to a request or demand for sexual favors.
Sexual Harassment includes, but is not limited to unsolicited and unwelcome sexual advances,
requests for sexual favors, and other verbal (slurs, jokes), non-verbal, electronic, written, or
physical conduct of a sexual nature when:
A. Submission to such conduct is made either explicitly or implicitly a term or condition of
employment; or
B. Submission to or rejection of such conduct by an individual is used as the basis for
employment decisions affecting the individual; or
C. Such conduct has the purpose or effect of interfering with an individual's performance or
creates or maintains an intimidating, hostile, abusive or offensive working environment.
NOTE: Sexual harassment takes many forms - subtle and indirect or blatant and overt. Examples
include, but are not limited to:
1. Unwelcome sex-oriented verbal "kidding;"
2. Unwelcome teasing or jokes;
HR/POLICY/108.10
PAGE 3 OF 6
POLICY/ADNIINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued)______
TITLE: HARASSMENT PREVENTION/WORKPLACE ABUSE REFERENCE NUMBER:
108.10
3. Unwelcome sex-oriented texts, emails, or other electronic communication;
4. The distribution, display, or discussion of any written or graphic material, including
calendars, posters, and cartoons that are sexually suggestive, or shows hostility toward
an individual or group because of sex;
5. Suggestive or insulting sounds; leering; staring; whistling; obscene gestures;
6. Subtle pressure for sexual activity;
7. Physical contact such as patting, pinching or constant brushing against another's body;
or
8. Demands for sexual favors.
111. Workplace abuse refers to repeated, unreasonable actions of individuals (or a group) directed
towards an employee (or a group of employees), which is intended to intimidate and/or create a risk
to the health and safety of the employee(s).
Workplace abuse takes one or more of the following forms:
. Verbal abuse;
• Offensive conduct/behaviors (including nonverbal) which are threatening, humiliating, or
intimidating; or
• Work interference - sabotage - which prevents work from getting done.
Workplace abuse would not include:
The normal exercise of supervisory responsibilities, including performance reviews,
direction, counseling and disciplinary action where necessary, provided they are conducted
in a respectful, professional manner, in accordance with City policies and procedures.
• Social interactions, jokes and bantering, which are mutually acceptable, provided the
interactions are respectful and there is no negative impact for others in the work
environment.
• Disagreements, misunderstandings, miscommunication, and/or conflict situations, provided
the behavior of the individuals involved remains professional and respectful.
FHUPOUCY1108.10
PAGE 4 OF b
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE Continued
TITLE: HARASSMENT PREVENTION/WORKPLACE ABUSE REFERENCE NUMBER:
108.10
ADMINISTRATIVE PROCEDURES:
1. Employees are responsible for ensuring their behavior is respectful and professional at all times,
no matter the situation. If approached with concerns by another employee, employees should be
open to understanding another's perspective and apologize as needed.
II. Under no circumstances should employees engage in behavior that has the purpose or effect of
harassing or abusing others. Employees need to be sensitive to how others may perceive their
actions, and remember that their actions not only reflect upon them, but may reflect on the City as
well.
III. Supervisors are responsible for maintaining their work place free of abuse and harassment of any
kind. This duty includes discussing and enforcing this policy and procedure with all employees and
assuring them that they are not required to endure insulting, degrading, or exploitative treatment.
IV. Individuals who feel they experience abuse or harassment should make it clear that such behavior
is offensive to them. Any employee who feels that he or she has been the victim of any form of
abuse or harassment should immediately report the facts of the incident or incidents and the names
of the individuals involved to his or her supervisor and the Director of Human Resources or
designee. Should the immediate supervisor be the offending party, the employee must report the
alleged act to the next level of management and the Director of the Human Resources or designee.
In situations where the employee is not comfortable reporting the allegation to his/her immediate
supervisor or the next level of management, he/she has the option to report his/her complaint only
to the Director of Human Resources or designee. The Director of Human Resources and the
manager/supervisor are mutually responsible for notifying each other when an allegation is
reported.
V. All allegations of abuse or harassment observed by or reported to a supervisor must be investigated
immediately by the Human Resources Director or designee. All findings, decisions, and
recommendations will be made on an individual basis considering the record as a whole on the
totality of the circumstances, such as the nature of the behavior and the context in which the
alleged incidents occurred. If abuse or harassment is found to exist, appropriate management and
supervisory personnel shall take prompt corrective action. Any time that sexual harassment
becomes an issue of an alleged act of sexual assault, the investigation must be coordinated with the
City of Denton Police Department.
VI. An individual's intentions and motives are not the decisive factors in considering alleged
harassment behavior. The effect of one employee's behavior upon another employee is the decisive
HR/POLICY/108.10
PAGE 5 OF 6
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continue
TITLE: HARASSMENT PREVENTION/WORKPLACE ABUSE REFERENCE NUMBER:
108.10
factor. If an individual's behavior is considered to be offensive by another individual or if it has an
intimidating effect upon another individual, harassment may be present.
VII. Appropriate disciplinary action will be taken when the findings warrant such action. Such
disciplinary action should be determined by the nature of the wrongful act or acts and may result in
immediate dismissal.
VIII. Disclosure of any investigation conducted under this policy shall be made only to those City
employees and others with a right to know.
PROTECTION AGAINST RETALIATION:
The City's Problem Solving Policy #115.02 encourages employees to report any alleged infraction
without fear of retaliation. The City of Denton supports the State of Texas Retaliation Act, Policy
#108.06, which protects a public employee who files or responds to a bona fide complaint of
discrimination or harassment; appears as a witness in the investigation of a complaint; or serves as an
investigator. Retaliation and/or reprisals against an individual who in good faith reports or provides
information about behavior that may violate this policy are against the law, against the City's policy,
and will not be tolerated. However, making a false report or providing false information is grounds for
discipline.
CONSENSUAL ROMANTIC RELATIONSHIPS:
1. An employee who is involved in a personal relationship with another employee may not occupy a
position in the saline chain of command as, work directly for or supervise the employee with whom
he or she is involved. Consensual romantic relationship is defined as a relationship between
individuals who have or have had a continuing relationship of a romantic or intimate nature. The
City of Denton reserves the right to take prompt action if an actual or potential conflict of interest
arises concerning individuals who occupy positions at any level (higher or lower) in the same line
of authority that may affect employment decisions.
II. When a conflict or the potential for conflict arises because of a personal relationship between
employees, even if there is no line of authority or reporting involved, the employees may be
separated by reassignment or dismissed from employment. If such personal relationship is
established after employment, it is the responsibility and obligation of the employees involved to
immediately disclose the existence of the relationship to their manager and/or department head.
When a conflict or a potential for conflict arises because of the relationship affecting employment,
the individuals concerned will be given the opportunity to decide who is to apply for another
position or resign if no position is available. If the decision is not made within 30 calendar days,
HR/POLICY/108.10
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ROLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued)
TITLE: HARASSMENT PREVENTION/WORKPLACE ABUSE REFERENCE NUMBER:
108.10
management will decide who is to apply for another position or, if necessary, be dismissed from
employment. Factors to be considered by management include, but are not limited to, length of
service, work performance, and/or criticality of the position to the operation.
HR/POLICY/108.10
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Human Resources
A~T
ACM: Jon Fortune
SUBJECT
Consider approval of a resolution of the City of Denton, Texas approving a revised City
personnel policy regarding Anti-Substance Abuse and Rehabilitation; and declaring an effective
date.
BACKGROUND
The Human Resources (HR) department is responsible for ensuring City policies are up-to-date
and are in compliance with local, federal, and state laws. To that end, HR reviews policies from
time to time, with the assistance of the Policy Review Committee. The Policy Review
Committee is comprised of approximately 20 employees at various levels representing different
departments/divisions. The members are expected to distribute the proposed changes to individuals
in their area and solicit comments, questions, and concerns regarding the proposed changes.
Policies are typically comprised of two sections - a "Policy Statement" which is approved by
City Council and "Administrative Procedures" which are approved by the City Manager. So any
time changes are required in the "Policy Statement," the policy will be sent to the City Council
for review and approval.
One of the policies needing revisions is policy no. 108.12 - Anti-Substance and Rehabilitation.
The changes to the policy statement allow for an appeal process in the event of a positive drug
test and clarifies that volunteers are covered by this policy.
Other changes were made to the "Administrative Procedures" that better clarify or define issues
associated with drug testing. Some of the most notable changes made to the "Administrative
Procedures" include language regarding oral fluid drug testing for vehicular or equipment
accidents, a better definition of a "licensed physician," the process for dealing with insufficient
amounts of a urine sample, and appeal procedures in the event of a positive drug test.
Members of the employee Policy Review Committee support the proposed changes.
OPTIONS
Approve the policy as proposed; not approve the policy; or make modifications.
Agenda Information Sheet
July 12, 2011
Page 2
RECOMMENDATION
Staff recommends that the City Council amend the Anti-Substance Abuse and Rehabilitation
Policy as drafted.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
There has been no prior action or review on this agenda item.
FISCAL INFORMATION
There is no fiscal impact on the City of Denton associated with this recommendation.
EXHIBITS
Resolution
Proposed revised City of Denton Anti-Substance Abuse and Rehabilitation Policy (No. 108.12)
Respectfully submitted:
Carla Haggmark-Romine
Director of Human Resources
RESOLUTION NO.
A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY
PERSONNEL POLICY REGARDING ANTI-SUBSTANCE ABUSE AND
REHABILITATION; AND DECLARING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES:
SECTION 1. Policy numbered 108.12 "Anti-Substance Abuse and Rehabilitation" of the
Personnel Policies and Procedure Manual of the City of Denton attached hereto and incorporated
by reference herein, is hereby approved as official policy of the City of Denton, Texas, and
replaces former policy 108.12.
SECTION 2. The foregoing policy is attached hereto and made a part hereof and shall be
filed in the official records with the City Secretary.
SECTION 3. This resolution shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of , 2011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
ZAlesolutionsll llanti sub abuse_docx
CIT./ OF DENTON PAGE 1 OF 19
POLICY/ADMINISTRATNE PROCEDURE/ADMINISTRATIVE DIRECTIVE
SECTION: HUMAN RESOURCES REFERENCE NUMBER:
108.12
SUBJECT: STANDARDS OF CONDUCT FOR EMPLOYEES INITIAL EFFECTIVE
DATE: 07/15/91
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION LAST REVISION DATE:
POLICY 07/12/11
POLICY STATEMENT:
The City of Denton recognizes that employee substance abuse can have a serious, adverse impact on its
image as a major employer in Denton, its ability to deliver quality services to its citizens, and the general
health, welfare, and safety of its employees and the public. The pervasive presence of substance abuse in our
society and the adverse effect on employee health, safety, and productivity in the work place requires the
establishment of an Anti-substance Abuse and Rehabilitation Program.
The City, in considering its daily operations of providing quality services to its citizens, recognizes its
responsibility to implement appropriate measures necessary to the safe, efficient, and effective use of its
resources, people, facilities, equipment, and finances. It is the City's responsibility to ensure public trust
and, in doing so, must implement comprehensive safety measures that protect the well-being of its
employees and citizens.
It is the policy of the City that employees are prohibited from manufacturing, using, possessing, selling,
distributing, consuming, or transporting any controlled substances as defined by the Federal Controlled
Substances Act or the Texas Controlled Substances Act, or any alcoholic beverages or intoxicating
substances on City property or at any time when conducting City business or performing their job duties and
responsibilities, including during any lunch or rest breaks that may be given in which the employee is
required to return to work immediately following.
An employee is prohibited from performing his or her job duties while under the influence of alcohol or
drugs, or if performance is impaired, while under the influence of lawfully prescribed or over-the-counter
substances. An employee shall not have drugs or alcohol in his or her urine, blood stream, or breath except
pursuant to a valid personal prescription. An employee shall not use or possess alcohol outside of work hours
on City property where prohibited by this policy, state, or local law. An employee should not use or possess
alcohol or drugs during any lunch or rest breaks that may be given in which the employee is required to
return to work immediately following. The employee shall not use alcohol or drugs while wearing a City of
Denton uniform or any other article of clothing furnished by the City to employees with an approved City of
Denton logo(s) (refer to Public Usage and Standards Policy no. 505.02) or name, irrespective of whether the
employee is on duty.
There is no intent to intrude upon the private lives of employees or applicants. However, the City is
concerned with those job-related situations where the use of drugs or alcohol interferes with the health and
safety of employees and the public, affects the employee's work performance during work hours, adversely
HR/POLICY/108.12
Page 2 of 19
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued)
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
affects the job performance of other employees, is considered serious enough to be detrimental to the City's
conduct of business, or affects the reputation of the City to the general public or threatens its integrity.
It is the policy of the City to have an appeal process in the case of employees with confirmed positive tests for
drugs or alcohol and to deny employment to applicants with confirmed positive tests for drugs.
The City of Denton complies with all applicable regulations and drug and alcohol testing programs, including
the Department of Transportation (DOT) and American with Disabilities Act (ADA). Unless otherwise
specified, the City of Denton has adopted the drug and alcohol testing procedures and guidelines of the DOT.
This policy applies to all employees- regular full-time, regular part-time, temporary, and seasonal. Civil
Service employees are subject to the applicable provisions of Chapter 143 of the Texas Local Government
Code, Local Rules of the City of Denton Fire Fighters and Police Officers Civil Service Commission, and the
general orders of the Police and Fire Departments, which may include the provisions of this policy. This
policy also applies to persons serving in an official capacity as a volunteer for the City of Denton as outlined
in the Volunteer Procedures policy 4 409.07.
ADMINISTRATIVE PROCEDURES:
1. Definitions
A. Adulterated test results occur when an agent is added to the urine sample by the donor at
the time of collection in an attempt to prevent detection of drug use.
B. Alcohol is defined as ethyl alcohol. Alcohol, as used herein, includes any beverage,
mixture, or preparation containing ethyl alcohol.
C. Alcohol testing is testing for blood alcohol content by an intoxilizer instrument
device operated pursuant to state law.
D. Cutoff levels are established by analytical methods in the laboratory to determine a
quantitative level of a drug in the body. The specific cut-off level is a standard selected
by the DOT.
E. City property or premises for purposes of this policy, includes ALL property, facilities,
buildings, structures, parking areas, and vehicles owned, operated, leased, or under control
of the City. An employee is not considered in violation of this policy by transporting or
possessing alcoholic beverages on City streets if he or she is:
1. off duty;
2. not wearing a City of Denton uniform or any other article of clothing furnished by
the City to employees with an approved City of Denton logo(s) or name;
3. not operating a City-owned, leased, or borrowed vehicle;
4. in a public access area; and
HR/POLICY/108.12
Page 3 of 19
rvL,l%.x1a1PivuvxK")JL-KA11VhrKIJULI)U1KE1AL)MI-NISSl'KA'1'1VEDIRECTIVE Continued
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
5. in compliance with all applicable laws.
F. Detectable level indicates the presence of a drug or substance found in the body in
amounts exceeding an established cut-off level. A detectable level of alcohol, as defined
by the DOT, is .01 or greater.
G. Drug is a controlled substance, controlled substance analogue, narcotic drug, or opiate as
defined in Schedules I-V of the Federal Controlled Substance Act, or the Texas Controlled
Substance Act, Texas Health & Safety Code, Chapter 481, if obtained or used without a
valid prescription for the user or possessor (refer to section IV of this policy). This
definition includes but is not limited to marijuana, hashish, cocaine, heroin, morphine,
codeine, amphetamines, barbiturates, hallucinogens, inhalants producing mood and mind-
altering vapors, and substances chemically similar to these drugs.
H. Drug test is the collection of a urine specimen by trained personnel, laboratory analysis of
that specimen by Enzyme Immunoassay (EMIT) screening, and confirmation of
drug-positive EMIT tests using gas chromatography/mass spectrometry (GC/MS) methods
and procedures, or other medically acceptable technology (such as oral fluid drug testing)
deemed appropriate by the City of Denton.
I. Emergency Call-Back is defined as those employees that on a continuous basis may be
asked, but are not scheduled, to report to work outside of normal working hours in an
emergency situation.
J. Impaired is an employee's diminished capacity to perform duties of the job as determined
by a supervisor and/or physician's statement.
K. Intoxicating substances is defined to means those substances that are being utilized for
the intentional purpose of causing a physical or mind altering state.
L. Negative Dilute test results occur when the creatinine and specific gravity levels
approach "substituted" values, which might indicate that an attempt has been made by
the donor to avoid drug detection.
M. On-Call is defined as a period of time during which an employee is advised by his/her
supervisor to be accessible for return to work for operational requirements that may
develop outside normally scheduled work hours.
N. Paraphernalia is defined as equipment, a product, or material that is used or intended for
use in planting, propagating, cultivating, growing, harvesting, manufacturing,
compounding, converting, producing, processing, preparing, testing, analyzing,
packaging, repackaging, storing, containing, or concealing a drug or in injecting,
ingesting, inhaling, or otherwise introducing into the human body a drug.
HRJPOLICY/108.12
Page 4 of 19
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued)
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
0. Positive Dilute test results occur when it has been determined by the laboratory through
confirmation of the creatinine and specific gravity values that an attempt was made by the
donor to avoid drug detection by "flushing out' 'the drug or by lowering the level of the
drug to a concentration less than that of the testing cutoffs.
P. Random testing describes the process of testing that assures each employee has an equal
chance of being tested each time covered employees are selected for testing. All test results
and selected employee names are confidential, and records are maintained separate from
employee personnel files.
1. The Department of Transportation (DOT) regulates the percentage of covered
employees who are to be randomly tested for drugs and alcohol per calendar year.
2. Employees in other "safety sensitive" positions (as defined in section 1-0 of this
policy) are tested at a minimum of the rate as employees falling under DOT.
Q. Reasonable suspicion is a suspicion based on some objective fact derived from the
surrounding circumstances to lead a reasonable person to suspect that an employee may be
under the influence of alcohol or prohibited substances while on duty.
R. Safety-sensitive position is a job where an employee's use of drugs or alcohol could create
a threat to safety whereby the employee's ability to perform assigned duties is impaired and
the performance of those duties in such mental or physical condition creates or could create
a safety hazard that has caused or could cause injury or harm to the employee or other
employees or citizens or damage to property.
Examples of "safety-sensitive" positions may include, but are not limited to:
a. positions involving the use of a vehicle and/or motorized equipment, such as cars,
trucks of any size, tractors, mowers, trimmers, trash compactors, saws, and drills as
an incidental (10% of time or yearly average of 8 hours per pay period) or as a
primary duty (more than 50% of time)
b. positions using a deadly weapon
c. positions with access to controlled substances and/or hazardous
materials/chemicals as defined by the Texas Department of Health
d. positions falling under the Department of Transportation rules and regulations
e. fire civil service personnel, or
f. designated field personnel in water/wastewater utilities, electric utility, streets,
traffic, solid waste, and parks maintenance.
H"OLICY/108.12
Page 5 of 19
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE Continued
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
S. Substituted test results occur when the creatinine concentration of the urine sample is less
than or equal to 5 mg/dL and the specific gravity of the urine sample is less than or equal to
1.001 or greater than or equal to 1.020 on both the initial and confirmatory creatinine and
specific gravity tests. These results suggest that the donor has altered the specimen to
avoid detection of drug use.
T. Unsuitable for testing test results occur when unidentified adulterants or endogenous
products are detected in the donor's urine and interfere with any of the testing process.
U. Vehicular Accident is defined as an event where any damage occurs to a vehicle, motor-
driven equipment, or other property, or where an injury occurs to any person, due to the
operation (use of or failure to use steering, braking, acceleration, and/or operational
systems) of a vehicle or motor-driven equipment by an employee. However, this does not
include normal wear and tear or incidents that the operator had no control over (such as
flying debris that cannot be avoided) as determined by the supervisor.
V. Work Hours includes any time an employee is performing work for the City.
II. Prohibited Items. The manufacture, use, possession, sale, distribution, consumption, or
transportation of any of the following substances by employees while on City property, conducting
City business, or performing job duties and responsibilities is prohibited. These violations will
result in notification of appropriate law enforcement personnel, reasonable suspicion drug, and/or
alcohol testing, and will result in disciplinary action, up to and including dismissal.
A. Drugs (as defined in section I-G of this policy)
B. Alcoholic beverages or other intoxicating substances (as defined in sections I-B and I-K of
this policy) -however, an employee may possess, consume, or transport alcoholic
beverages while off duty (in compliance with section I-E of this policy) unless local or
state law otherwise prohibits the possession or consumption of alcoholic beverages.
C. Drug paraphernalia (as defined in section I-N of this policy).
Prohibited items do not include the possession or transportation of any substance or item by
Police Department personnel in fulfillment of legitimate law enforcement activities, nor is this
description intended to infringe upon or impede any lawful law enforcement function associated
with the investigation of criminal offenses under the Federal or State Controlled Substances Act,
or ordinances of the City of Denton.
III. Prescriptions and Over-The-Counter Medications. Prescriptions and over-the-counter medications
are prohibited except when all of the following conditions are met:
HR/POLICY/108.12
Page 6 of 19
rulAu Y IA1J1Vlllrl!11 KA 11 V E YKV(:EVUKEIA )M11N1STKXf1VE DIRECTIVE (Continued)
TITLE: .ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
A. The prescription drugs are prescribed by a physician licensed to practice medicine in the
United States or its territories for the person in possession of the drugs;
B. The prescription has been filled by a registered/licensed pharmacist within the last twelve
(12) months for the person possessing the drug or medication;
C. The drugs or medications are ingested. or adnriinistered only in the prescribed or
recommended therapeutic dosages;
D. The employee or applicant must be able to produce evidence of a valid prescription to a
medical review officer as requested, and
E. The employee taking the drug or medication has informed his or her supervisor that he or
she is taking a medication that could impair his or her ability to perform his or her job
duties, including but not limited to the operation of vehicles or motorized equipment.
The City, at all times, reserves the right to have a designated City physician determine if a
prescription drug or medication produces hazardous effects and may restrict the job duties
performed while using any drug or medication accordingly.
IV. Conferences
Employees attending training and conferences may participate in social functions associated with
the conference. This may include the consumption of alcohol, so long as the employee is not
wearing a City of Denton uniform or any other article of clothing furnished by the City to
employees with an approved City of Denton logo(s) or name and the employee's conduct does not
reflect adversely upon the City. Employees who consume alcohol at these functions shall follow
the law and exercise caution in driving personal vehicles and shall not operate a City-owned, City-
leased, or City-rented vehicle.
V. Emergency Call-Back .
Employees subject to continuous emergency call-back are required to declare to their supervisors
the use of alcohol or drugs including prescribed medication that might affect their ability to perform
under an emergency. The supervisor shall determine if the employee is fit to work and in what
capacity.
VI. On-Call
Because employees with on-call status are potentially required to be actively working, an "on call"
employee is prohibited from consuming alcoholic beverages or using drugs that may impair his or
her performance. If an employee is taking prescription medication that may impair his or her
I IR/POLICY/l 08.12
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YVLiu rIA"M1n1a!1A11yE YRL)UEDUREIAllMINISTRATIVE DIRECTIVE (Continued)
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
performance when called back to work, he or she should notify his or her supervisor. The
supervisor shall determine if the employee is fit to work and in what capacity.
VII. Use of Substances Outside of Work Hours
An employee shall not use or possess drugs or alcohol outside of work hours on City property as
defined by section I-E, including during any lunch or rest breaks that may be given in which the
employee is required to return to work immediately following. An employee shall not use alcohol
or drugs before or after work hours while wearing a City of Denton uniform or any other article of
clothing furnished by the City to employees with an approved City of Denton logo(s) or name.
VIII. Notice of Testing Policy
The Human Resources Department shall provide informed and/or written notice of its drug and
alcohol testing policy to all job applicants and employees. The notice shall contain the following
information:
■ the need for drug and alcohol testing;
• circumstances under which testing may be required;
■ the procedure for confirming an initial positive drug and/or alcohol test result;
■ consequences of a confirmed positive test result;
■ consequences of refusing to undergo a drug and/or alcohol test;
the appeal procedures available for a positive test result; and
■ the availability of drug abuse counseling and referral services.
Applicants will be notified of the City's policy to conduct drug testing as part of the employment
process. When an applicant reports to a testing site for testing, he or she shall first present valid
picture identification, such as issued by the Department of Public Safety or a passport to the tester.
IX. Consent
Before a drug or alcohol test is administered, the employee or job applicant will be required to
sign a consent form authorizing the test and permitting release of test results to those City
officials with a need to know or as required by law, except those exempt pursuant to DOT
regulations 49 Part CFR 40.27. The consent form shall provide space for employees and
applicants to acknowledge that they have been notified of the City's drug testing policy. By
continuing employment with the City of Denton, employees have consented to the adoption
of this policy and testing program,
A. Refusal to Test
1. Applicants: A job applicant who refuses to consent to a drug test will be denied
employment with the City.
MOOLICYA 08. l2
Page 8 of 19
rvL,iL; xiAijivliivta 1.KAi iv u rxuc:hmHE+'IADMINISTRATIVE DIRECTIVE (Continued)
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
2. Employees: An employee who refuses to consent to a drug and/or alcohol test will be
subject to dismissal.
The consent form shall not be altered or changed by the applicant or employee.
Altering or refusing to sign the consent form shall be considered a refusal to consent
to the drug and/or alcohol test.
B. Complaints or Grievances
Any complaints or grievances about the testing procedure arc to be made by the employee
through his/her normal chain of command pursuant to the City of Denton Problem Solving
Policy 115.02. Those conducting the testing shall not be harassed or abused either verbally
or physically during any drug or alcohol testing procedure. Any conduct that is perceived
by the testing personnel as harassing or verbally or physically abusing will be deemed as
failing to cooperate fully with the collection of breath, saliva, and/or urine samples and shall
be considered as insubordination and thus subject to disciplinary action up to and including
dismissal.
X. Types of Testing
A. Pre-Employment (Job Applicant Testing)
Upon a conditional offer of employment, all applicants are required to pass a drug screen prior
to his or her final appointment. An applicant will be notified of drug testing at the time of
application and will be allowed the opportunity to withdraw his or her application anytime upon
request.
B. Reasonable Suspicion
The decision to conduct reasonable suspicion alcohol and drug testing will be determined on a
case-by-case basis. Note: With reasonable suspicion, an alcohol test will be conducted first. If
the alcohol test is negative, then the employee will be subject to a drug test.
1. Criteria which may be used by appropriately trained management and supervisory personnel
to determine if a test for an employee is necessary include, but are not limited to, the
following:
a. Observed alcohol or drug use during working hours;
b. Apparent physical state of intoxication or drug induced impairment of motor
function;
HR/POLICY/108.12
Page 9 of 19
rVL14- VAUMIIN111KA1 tVh JrHOUE+'DUIWAllMINIS TRA` IVE DIRECTIVE (Continued)
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
10$.12
c. Incoherent or irrational mental state;
d. Marked changes in personal behavior or attitude not attributable to other factors;
e. Deteriorating work performance, attendance, or tardiness problems not attributable
to other factors;
f. Information received from appropriately trained sources in determining reasonable
suspicion that indicates the employee has been involved in alcohol or drug use;
g. Other employee actions or conduct that leads to a suspicion of drug or alcohol
use such as presence of physical symptoms that may include glassy or blood-shot
eyes, alcohol beverage odor on breath, slurred speech, poor coordination or
reflexes, unsteady gait, mood changes (including inappropriate gaiety or
lethargic behavior), unpredictable responses to ordinary requests, etc. which
leads managers and supervisors to believe that the employee is under the
influence of alcohol or drugs, suffers from substance abuse or is in violation of
City or departmental rules, regulations, or procedures concerning the use of such
substances;
h. Any violation of the City of Denton's Drug Free Work Place Policy (108.11).
2. Supervisory Procedures in the Event of Reasonable Suspicion
a. An appropriately trained supervisor (in compliance with section XV of this
policy) may require an employee to undergo alcohol and drug testing if the
supervisor has reasonable suspicion that the employee is under the influence of
alcohol and/or drugs during work hours as described above. Supervisors are
required to complete an "Observation Checklist", which can be found on the
City's Intranet site, to list the symptoms or observations that formed the basis for
their determination that reasonable suspicion existed to warrant the testing of an
employee. This documentation shall be forwarded to the Human Resources
Department. The facts underlying the determination of reasonable suspicion
should be disclosed to the employee at the time of request. .
b. If an employee refuses to consent to a reasonable suspicion test, he/she should be
escorted to the Human Resources department if during normal work hours. If
after normal work hours, he/she should be escorted home by appropriate
supervisory personnel or another City employee with departmental authority and
placed on administrative leave with pay until contacted by his or her supervisor.
In the rare instances when a supervisor or another City employee with
departmental authority is unable to escort the employee home, the supervisor may
make arrangements for a reasonable party to pick-up the employee from the
HR/POLICY/t0$.12
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rULIUVADMENISIRAHVE PROUEDUIZEIADMINISTRATIVE DIRECTIVE Continued
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
worksite.
C. Once the supervisor has established reasonable suspicion, an employee must
submit to an alcohol and drug screen immediately upon request. An alcohol test
will be conducted first. If the alcohol test is negative or the results are at a
detectable level below.039, then the employee will be subject to a drug test. The
employee's supervisor shall give the employee a direct order, as a condition of
employment, to submit to an alcohol and drug screen with the warning that
refusal to comply will result in dismissal. (For results that are not negative or are
.039 or above, refer to section M. B. of this policy.)
d. The employee shall be further instructed to cooperate throughout the alcohol and
drug screening procedure, including following all directions received from
trained personnel at the alcohol and drug screening collection site. The
employee, in no case, shall be permitted to continue working or remain
unattended while screening approval or arrangements are being effected.
The employee will be placed on administrative leave with pay pending
results of the test.
C. The department supervisor shall immediately, if during normal weekday office
hours (7 a.m. to 5 p.m., Monday through Friday), notify the Director of Human
Resources or designated representative in the Human Resources Department to
arrange for the alcohol and drug screening. If the necessity to arrange for an
alcohol and drug screening occurs, the supervisor or another City employee
with departmental authority must escort the employee to the designated
drug screening collection site. The employee shall never be permitted to
operate a vehicle or motorized equipment.
f. Supervisory personnel or appropriate medical personnel shall remain with the
employee at all times and shall take the necessary actions to prevent the
employee's alteration or falsification of the alcohol and drug screen procedure.
An appropriate chain of custody procedure will be followed at the collection site
to ensure the accuracy and integrity of the testing procedure and test results.
g. The employee should not return to work in any capacity until results are
confirmed negative.
h. If the results are "non-negative," the employee needs to be escorted home by
appropriate supervisory personnel or another City employee with departmental
authority. In the rare instances when a supervisor or other City employee
with departmental authority is unable to escort the employee home, the
I IR/POLiCY/108.12
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MIU VAMVILMIN l MA I'1 V 1+.' YHOUE'l1 U KE/All1Vlll~l l~ 1 KA l 1VE I)MECTIVE (Continued)
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108.12
supervisor may make arrangements for a reasonable party to pick-up the
employee from the worksite.
C.
Post Accident
Vehicular Accidents (includes City vehicles and motorized equipment as well as leased
vehicles, personal vehicles, rental vehicles, or borrowed vehicles if being operated to
conduct City business):
1. An employee should ALWAYS be tested for DRUGS if any one or more of the
following conditions apply:
a. there has been a death to a citizen or another employee during work hours due
to a vehicular accident;
b. there has been a vehicular accident from which injury to an employee or
citizen has occurred during work hours that requires immediate treatment at a
doctor's office or hospital;
c. there has been any damage to City and/or citizen property during work hours
due to a vehicular accident (exceptions include employee's vehicle being hit
from behind while legally stopped); or
d. there has been a vehicular accident on a public street during work hours and
the police officer issues a citation to the employee .
2. An employee should ALWAYS be tested for ALCOHOL if any one or more of the
following conditions apply:
a. there is reasonable suspicion as determined by an appropriately trained
supervisor; or
b. an employee has a commercial driver's license and is required to use the
license to perform his/her job duties and has an accident while using his/her
commercial driver's license that involves one or more of the following:
i. a human fatality;
ii. a bodily injury which requires immediate medical treatment away from
the scene AND a citation is issued to the employee (a DOT test is not
required if a citation is not issued); or
HR/POLICY/108.12
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POLICY/ADMENISTRA IVE YROCEDUREIADMIMSTRATIVE DIRECTIVE Continued
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108.12
iii. there has been disabling damage to any motor vehicle requiring tow
away AND a citation is issued to the employee (a DOT test is not
required if a citation is not issued).
3. A drug test must be conducted along with ANY post-accident alcohol test unless
the alcohol test results are .04 or greater.
4. Under no circumstances 'should a post-accident test be waived i an o the
above.criteria are met
a. If required, an alcohol test should be conducted immediately (if there
are no incapacitating injuries). If an alcohol test is not conducted
within two (2) hours after the accident, a memo should be written as to
why an alcohol test was not conducted within that time frame. This
memo should be forwarded to the Human Resources department to be
filed. All attempts to test should cease if it has been longer than eight
(8) hours.
b. A drug test should be conducted immediately (if there are no
incapacitating injuries). If a drug test is not conducted within two (2)
hours, a memo should be written as to why a drug test was not
conducted within that time frame. This memo should be forwarded to
the Human Resources Department to be filed. All attempts to test
should cease if it has been longer than thirty-two (32) hours.
5. It is the employee's responsibility to contact his or her supervisor
immediately, unless incapacitated, after an accident has occurred so that
appropriate action can be taken. Failure to report an accident will result in
disciplinary action, up to and including dismissal.
b. The employee shall be escorted to the alcohol and/or drug screening
collection site by appropriate supervisory personnel or other City employee
with departmental authority. The employee shall not be permitted to
operate a vehicle or motorized equipment.
7. Employees who are tested as a result of a non-DOT accident may return to work
and assigned duties as long as the result(s) of the drug and/or alcohol test (where
applicable) is/are confirmed negative.
Employees who are tested as a result of a DOT accident will be escorted to the
testing facility for an alcohol test and a split specimen urine drug screen. In this
instance, the employee may return to work and assigned duties as long as the
initial result(s) of the alcohol and/or drug test is/are confirmed negative.
HR/POLICY/108.12
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rULIUV/A )AII IIS'1'KA'I`1VE YRUC:EDURE/ADIVHIVISTRATIVE DIRECTIVE (Continued)
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
If the result(s) is/are "non-negative," the employee needs to be escorted home by
appropriate supervisory personnel or another City employee with departmental
authority and will not be able to return to work until the results are confirmed
negative.-In the rare instances when a supervisor or another City employee
with departmental authority is unable to escort the employee home, the
supervisor may make arrangements for a reasonable party to pick-up the
employee from the worksite.
D. On-the-Job Injuries
1. If there is a reasonable suspicion that the employee is under the influence of
alcohol and/or drugs during work hours and that drugs or alcohol contributed
to the injury, then a supervisor or trained personnel may require an employee,
in compliance with sections X B and XV of this policy, to undergo alcohol
and drug testing.
2. It is the employee's responsibility to contact his or her supervisor
immediately, unless incapacitated, after an injury has occurred so that
appropriate action can be taken. Failure to report an injury will result in
disciplinary action, up to and including dismissal.
The Director of Human Resources or designated representative of the Human Resources
Department shall be responsible for notifying the Department Head or designee of the alcohol
and/or drug screening results as soon as this information is available. When requested, copies
of the laboratory report reflecting the alcohol and drug screening results shall be transmitted to
the aforementioned officials when the report is available.
E. Employees Transferring to Other Jobs within the City
Any employee moving from a "non-safety" sensitive position to a "safety-sensitive" position or
moving from a "safety-sensitive" position (as defined by the City) to a DOT "safety-sensitive"
position (as defined by the Department of Transportation) will be required to pass a drug
screen as a condition of final appointment.
Questions concerning whether a specific position is deemed safety-sensitive should be
addressed to the Human Resources Department.
F. Random Testing
I . Federally Regulated Random testing
In response to the DOT 49 CFR regulations, employees who are in positions that
HR/POLICY/10$.12
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POLICY/ADMINISTRATIVE PROCEDURVADNIINISTRA,TIVE DIRECTIVE Continued
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108.12
require the use of a commercial driver's license (CDL) are subject to random drug and
alcohol testing according to federal regulations and guidelines.
2. Random testing per City of Denton Policy
Employees in positions that are considered safety-sensitive positions (as defined by
section I-R of this policy) are subject to random drug and alcohol testing. Questions
concerning whether a specific position is deemed safety sensitive should be addressed
to the Human Resources Department.
Employees who are tested under random testing may return to work and assigned
duties pending confirmed results of the test. If the results are confirmed negative, no
further action is taken. If the results are "non-negative," the employee needs to be
escorted home by appropriate supervisory personnel or another City employee with
departmental authority and will not be able to return to work until the results are
confirmed negative. In the rare instances when a supervisor or another City
employee with departmental authority is unable to escort the employee home, the
supervisor may make arrangements for a reasonable party to pick-up the
employee from the worksite.
If results of the random drug test come back as a confirmed positive, the employee
will be subject to dismissal as outlined in section XI.
G. Follow-up Testing
In the event an employee self refers in accordance with section XII or appeals a termination
in accordance with section XI.C.2, the employee may be subject to follow-up testing.
Follow-up tests are unannounced. Follow-up tests will be conducted in accordance with
the recommendation of the Substance Abuse Professional. However, for DOT
employees at least six (6) tests must be conducted in the first 12 months after the
employee returns to duty. Follow-up testing may be extended for up to 60 months
following return to duty.
XI. Confirmation of Test Results
A. Confirmed Positive Results of Drug Screen
In the event an oral fluid drug test is conducted and the results are non-negative or for DOT tests,
the employee will be escorted by the supervisor or another City employee with departmental
authority to the drug screening collection site for a urine drug test. For all drug testing, if the initial
urine drug test is non-negative, a second test of the same sample will be performed to confirm
HR/POLICY/148.12
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rul,i<c. XIADIV]Lt1y111KA11V,tL rKUUEJLPUREIADAU-NIS'I'KA'I'1VEll1RECTIVE (Continued)
TITLE: ANTI-SUBSTANCE ABUSE AND REHABILITATION REFERENCE NUMBER:
108.12
results. The results of a positive urine drug test shall not be released until the results are confirmed
through GC/MS testing and MRO review.
1. Drugs tested and cut off levels
List of Druffs Tested For
*Amphetamines
*Methamphetamines
*Opiates
* Cannabinoids
*Cocaine
*Phencyclidine
Cut-off Levels
Urine
Oral Fluid
500 ng/ml
50 ng/ml
(incl. in Amph)
50 ng/ml
2,000 ng/ml
40 ng/ml
50 ng/ml
12 ng/ml
150 ng/ml
20 ng/ml
25 ng/ml
10 ng/ml
*Detection limit in a given specimen will vary within the listed range and will depend on
which class members and/or metabolites are present.
* Detection limits have also been set by HHS.
However, nothing contained in the above cut off levels shall conflict with standards
promulgated by the Department of Transportation (DOT).
The City reserves the right to modify the drugs to be tested given the circumstances of the
reasonable suspicion test, unless it conflicts with DOT rules and regulations.
2. Retest of original sample
An employee or applicant who does not pass the drug test may request a retest of the
original sample within three (3) business days of his or her receipt of the drug test results
at his/her expense. The employee or applicant may request retesting by the same
laboratory or by a second laboratory that is certified to perform drug tests by the HHS
(Department of Health and Human Services) under the National Laboratory Certification
Program (NLCP). The originating laboratory must follow the external chain-of-custody
procedure outlined in the HHS mandatory guidelines for federal workplace drug testing
programs when transferring the sample. If the two tests have conflicting results, a third test
will be run at a different, approved lab and funded by the City. The result of the third test
will be binding.
3. Any employee requesting a retest of the original sample will be required to use any
accrued vacation time pending the results of the test. If the employee has no accrued time,
the employee will be placed on administrative leave without pay. If the final test is
confirmed negative, the employee will be reimbursed for vacation time used or the time
placed on administrative leave without pay and the cost of the second test. Procedure for
Insufficient Amount of Urine
HR/POLICY/108.12
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rUL1U V/A NH1N1STKA11VE YRMEDUREIADA NISTRATIVE DIRECTIVE (Continued)
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108.12
a. If an employee or applicant is unable to give a sufficient sample as defined by DOT,
he/she will follow DOT guidelines for insufficient amount of urine for a drug test (49
CFR Part 40.193) - These guidelines allow the individual to drink up to 40 ounces of
fluid, distributed reasonably through a period of up to three hours, or until the
individual has provided a sufficient urine specimen, whichever occurs first. If the
applicant/employee refuses to make the attempt to provide a new urine specimen or
leaves the collection site before the collection process is complete, the collection
process will be discontinued. This will be considered a refusal to test (as defined in
section IX-A of this policy).
b. The applicant/employee may obtain, within five days, an evaluation from a licensed
physician, acceptable to the MRO, who has expertise in the medical issues raised by the
applicantiemployee's failure to provide a sufficient specimen. If accepted by the MRO,
the test will be cancelled. If not accepted by the MRO, the test will be considered a
refusal to test (as defined in section IX-A of this policy).
4. Procedures for Dilute, Unsuitable, Substituted, or Adulterated Drug test Results
If the initial drug screen is reported as a negative dilute, no further action will be required
UNLESS the creatinine concentration of the specimen was equal to or greater than
2mg/dL, but less than or equal to 5 mg/dL.
Under these circumstances, a job applicant or employee will be required to provide a new
sample immediately under direct observation (direct observation means a trained lab
technician will visually observe the production of the urine specimen). The result of the
second test will be the test of record.
a. If the initial drug screen is reported as a positive dilute, this will be considered a
refusal to test (as defined in section IX-A).
b. If the initial drug screen is reported as unsuitable or rejected for testing, the
employee or job applicant must provide a new sample under direct observation as
soon as possible.
c. If the initial drug screen is reported as substituted or adulterated, this will be
considered a refusal to test (as defined in section IX-A).
B. Detectable levels and Confirmed Positive Results of Alcohol
If the initial alcohol test is above .000, a second test will be performed to confirm results.
The results of a positive alcohol test shall not be released until results are confirmed.
1. If an employee's confirmed test result is between .001 and .019, he/she will be
removed immediately from his/her safety-sensitive position until there is no
kHUPOLICY/108.12
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POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE Continued
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108.12
detectable level of alcohol in his/her system and will be subject to discipline, up to
and including dismissal.
2. If an employee's confirmed test result is between .02 and .039, he/she will be
removed immediately from his/her safety-sensitive position for a minimum of
twenty-four (24) hours and be subject to discipline, up to and including dismissal
3. If an employee's confirmed Blood Alcohol Content test result is .04 or greater,
he/she will be dismissed from employment unless appealed and overturned.
C. Consequences of a Confirmed Positive Test Result
Applicants: A job applicant will be denied employment with the City if his or her
initial positive test results have been confirmed. Applicants who are denied
employment due to a positive drug test result must wait two years before applying
for another position with the City.
2. Employees: If an employee's "non-negative" test result has been confirmed positive,
the employee will be dismissed. However, the employee will be allowed to appeal
his/her dismissal from employment. The appeal must be submitted in writing to the
Human Resources Director within 10 business days of the dismissal. The appeal should
include a thorough explanation as to why the employee feels he/she should not be
dismissed. Upon request of an appeal, the employee will be required to meet with a
Substance Abuse Professional (SAP) through the City's Employee Assistance Program
(EAP). The employee must meet with the SAP within three (3) business days of
appealing the dismissal. If this timeframe cannot be met due to the SAP's schedule, the
employee must notify the Human Resources Director or designated representative prior
to the expiration of the three (3) business days.
After the employee meets with the SAP, any report provided by the SAP will be sent to
the City's Human Resources Department. A panel consisting of the City Manager, an
Assistant City Manager, and the Human Resources Director or alternate member at the
discretion of the City Manager will meet to review the appeal and any report sent by
the SAP. If the panel overturns the dismissal, the employee may be required to
complete any recommendations of the SAP. If an employee is dismissed because of a
positive test result, he/she must wait two years before applying for another position
with the City.
HRJPOLICY/108.12
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POLICY/ADNHINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued)
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108.12
XII. EAP Self-Referral
Except for all civil service and non civil service positions in the police department and divisions of
the police department, disciplinary action may not be taken against employees who voluntarily
identify themselves as having a drug or alcohol problem and obtain counseling and rehabilitation
through the City's Employee Assistance Program. However, employees are responsible for violation
of policies and procedures and for performing job duties and responsibilities at an acceptable level.
Disciplinary action may be imposed for an employee who violates policies and procedures or fails
to properly perform job duties and responsibilities both prior to and after the self-referral. An
employee may not make a self-referral in order to avoid a potential drug or alcohol test or
disciplinary action. An employee may only self-refer once. Employees will be required to enter
into an agreement with the City, which will include participation in a follow-up testing program.
XIII. Confidentiality of Test Results
All information from an employee's or job applicant's drug and alcohol screen shall be disclosed
only to those with a need to know of test results, including but not limited to the City Manager, City
Attorney, Human Resource Director or Designated Employer Representative, Risk Manager,
Department Head, and/or Supervisor. The City and its agents may communicate test results among
themselves for official purposes both orally and in writing, and at a judicial or administrative
proceeding, including applicable state or federal agencies. Disclosure of test results to any other
person, agency, or organization is prohibited to persons not eligible to receive the test results under
any applicable law. The results of a positive drug test shall not be released until the results are
confirmed.
XIV. Laboratory Testing Requirements
All drug and alcohol testing of employees and applicants shall be conducted at facilities or
laboratories selected by the City (with the exception of a retest as outlined in section XI). To be
considered as a testing site, a facility or laboratory must submit in writing a description of the
procedures that will be used to maintain test samples. Factors to be considered by the City in
selecting a testing facility include:
A. Testing procedures that ensure privacy to employees and job applicants consistent with the
prevention of tampering;
B. Methods of analysis which ensure reliable test results, including the use of gas
chromatography/mass spectrometry to confirm positive test results;
C. Chain-of-custody procedures which ensure proper identification, labeling, and handling of test
samples; and
HR/POLICY/109.12
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108.12
D. Retention and storage procedures that ensure reliable results of confirmatory tests of original
samples.
XV. Education and Training
The City shall train supervisory personnel on the physical, behavioral, and performance indicators
of probable drug use and alcohol misuse. The City shall also provide information to employees
covered under the DOT on the effects and consequences of prohibited drug use on personal health,
safety, and the work environment, and on the signs and symptoms that may indicate prohibited drug
use.
XVI. Employment At-Will
Like all other City of Denton policies, this policy does not alter the employment at-will relationship.
This provision shall not be construed as creating contractual rights or as establishing ajust cause"
disciplinary or dismissal standard.
HR/POLICY/108.12
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Human Resources
ACM: Jon Fortune
SUBJECT
Consider approval of a resolution of the City of Denton, Texas approving a revised City
personnel policy regarding Demotions; and declaring an effective date.
BACKGROUND
The Human Resources (HR) department is responsible for ensuring City policies are up-to-date
and are in compliance with local, federal, and state laws. To that end, HR reviews policies from
time to time, with the assistance of the Policy Review Committee. The Policy Review
Committee is comprised of approximately 20 employees at various levels representing different
departments/divisions. The members are expected to distribute the proposed changes to individuals
in their area and solicit comments, questions, and concerns regarding the proposed changes.
Policies are typically comprised of two sections - a "Policy Statement" which is approved by
City Council and "Administrative Procedures" which are approved by the City Manager. So any
time changes are required in the "Policy Statement," the policy will be sent to the City Council
for review and approval.
One of the policies needing revisions is policy no. 109.02 - Demotions. The current policy does
not exclude Police and Fire Civil Service employees when referring to involuntary demotions.
However, Police and Fire Civil Service employees are governed by Chapter 143 of the Texas
Local Government Code, and this Chapter governs the process when considering an involuntary
demotion. The process required by Chapter 143 is different from the process required by this
policy. To avoid confusion, the policy has been updated to differentiate between voluntary and
involuntary demotions and to reflect that involuntary demotions covered by the policy will only
apply to non-Civil Service employees.
Members of the employee Policy Review Committee support the proposed changes.
OPTIONS
Approve the policy as proposed; not approve the policy; or make modifications.
Agenda Information Sheet
July 12, 2011
Page 2
RECOMMENDATION
Staff recommends that the City Council amend the Demotions Policy as drafted.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
There has been no prior action or review on this agenda item.
FISCAL INFORMATION
There is no fiscal impact on the City of Denton associated with this recommendation.
EXHIBITS
Resolution
Proposed revised City of Denton Demotions Policy (No. 109.02)
Respectfully submitted:
Carla Haggmark-Romine
Director of Human Resources
RESOLUTION NO.
A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY
PERSONNEL POLICY REGARDING DEMOTIONS; AND DECLARING AN EFFECTIVE
DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES:
SECTION 1. Policy numbered 109.02 "Demotions" of the Personnel Policies and
Procedure Manual of the City of Denton attached hereto and incorporated by reference herein, is
hereby approved as official policy of the City of Denton, Texas, and replaces former policy
109.02.
SECTION 2. The foregoing policy is attached hereto and made a part hereof and shall be
filed in the official records with the City Secretary.
SECTION 3. This resolution shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of
2011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
ZAResokutionAl Mamotions policy.d=
CITY OF DENTON PAGE I OF I
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
SECTION: HUMAN RESOURCES REFERENCE NUMBER:
109.02
SUBJECT: DISCIPLINE AND SEPARATION INITIAL EFFECTIVE DATE:
04/19/88
TITLE: DEMOTIONS LAST REVISION DATE:
07/12/11
POLICY STATEMENT:
An involuntary demotion may be considered when a non-civil service employee fails to satisfy the
requirements and performance standards established for a position but is able to function productively in
another capacity. Chapter 143 of the Texas Local Government Code will govern involuntary demotions for
Police and Fire civil service employees.
A voluntary demotion may be requested by an employee (non-civil service and Police and Fire civil service),
but approval is at the discretion of the department head upon consultation with the Director of Human
Resources. A voluntary demotion must be in the best interest of the City of Denton and the specific
department(s) involved before approval is granted.
ADMINISTRATIVE PROCEDURES:
Definition: A demotion is a move to a position with less responsibility and a lower salary range.
The following points, factors and circumstances must be evaluated prior to a final decision:
1. Demotions will be accomplished after careful and thorough review of an employee's qualifications,
work history, and documented performance appraisals.
U. Demotion should not be considered unless the employee has been informed of and understands
those standards established for his/her current position and has been counseled and given sufficient
time to correct any existing deficiencies.
111. Demotions shall take effect as soon as is practical without undue disruption or interruption of
departmental operation.
1V. When an involuntary demotion is proposed, the department head shall afford the employee a due
process hearing in accordance with the Administrative Procedures contained in the Disciplinary
Appeal Policy 109.03.
Policy 109.01 regarding disciplinary action and Policy 104.06 regarding transfers may provide additional
information.
H"OLICY/109.02
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Human Resources
A~T
ACM: Jon Fortune
SUBJECT
Consider approval of a resolution of the City of Denton, Texas approving a revised City
personnel policy regarding a Workers' Compensation/Salary Continuation Program; and
declaring an effective date.
BACKGROUND
The Human Resources (HR) department is responsible for ensuring City policies are up-to-date
and are in compliance with local, federal, and state laws. To that end, HR reviews policies from
time to time, with the assistance of the Policy Review Committee. The Policy Review
Committee is comprised of approximately 20 employees at various levels representing different
departments/divisions. The members are expected to distribute the proposed changes to individuals
in their area and solicit comments, questions, and concerns regarding the proposed changes.
Policies are typically comprised of two sections - a "Policy Statement" which is approved by
City Council and "Administrative Procedures" which are approved by the City Manager. So any
time changes are required in the "Policy Statement," the policy will be sent to the City Council
for review and approval.
One of the policies needing revisions is policy no. 409.01 - Salary Continuation Program
(formally titled "Occupational Injury Benefits Program"). The most notable change to this policy
includes removal of all language that reiterated benefits and procedures that are contained in the
Workers' Compensation Act ("the Act"). Since the language in the Act can be amended by the
legislators, or changed based on case law, it made sense to remove this language and simply state
that the City will pay benefits as prescribed in the Act. This will prevent the City from having to
revise the policy any time legislative or case law changes occur.
By removing the superfluous language, the policy is easier to read and it is easier to find the
important provisions that actually deal with the salary continuation benefits. Other changes were
made to the "Administrative Procedures" that better clarify how salary continuation will be
handled.
Members of the employee Policy Review Committee support the proposed changes.
Agenda Information Sheet
July 12, 2011
Page 2
OPTIONS
Approve the policy as proposed; not approve the policy; or make modifications.
RECOMMENDATION
Staff recommends that the City Council amend the Salary Continuation Program Policy as
drafted.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
There has been no prior action or review on this agenda item.
FISCAL INFORMATION
There is no fiscal impact on the City of Denton associated with this recommendation.
EXHIBITS
Resolution
Proposed revised City of Denton Salary Continuation Program Policy (No. 409.01)
Respectfully submitted:
j
Carla Haggmark-Romine
Director of Human Resources
RESOLUTION NO.
A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING A REVISED CITY
PERSONNEL POLICY REGARDING WORKERS' COMPENSATION/SALARY
CONTINUATION PROGRAM; AND DECLARING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES:
SECTION 1. Policy numbered 409.01 "Workers' Compensation/Salary Continuation
Program" of the Personnel Policies and Procedure Manual of the City of Denton attached hereto
and incorporated by reference herein, is hereby approved as official policy of the City of Denton,
Texas, and replaces former policy 409.01.
SECTION 2. The foregoing policy is attached hereto and made a part hereof and shall be
filed in the official records with the. City Secretary.
SECTION 3. This resolution shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of , 2011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: L a
ZMesolutionAl 14orken comp policy.duc
CITE' OF DENTON PAGE I OF 8
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
SECTION: FINANCE
REFERENCE NUMBER:
409.01
SUBJECT: HUMAN RESOURCES/RISK MANAGEMENT
INITIAL EFFECTIVE DATE:
11/01/94
TITLE: WORKERS' COMPENSATION/SALARY
LAST REVISION DATE:
CONTINUATION PROGRAM
07/12/11
POLICY STATEMENT:
It is the City of Denton's policy to provide workers' compensation benefits to regular full-time, regular
part-time, and temporary/seasonal employees, as detailed in Texas Labor Code, Title 5, Subtitle A,
Texas Workers' Compensation Act and Subtitle C, Chapter 504 (collectively referred to as the "Act")
This policy seeks to establish procedures which ensure the efficient application of the Act. The City
also seeks to establish procedures which ensure the fair application of a salary continuation program
for eligible full-time employees who are injured on the job and are unable to perform their regular
duties as a result of these injuries.
ADMINISTRATIVE PROCEDURES:
I. DEFINITIONS
A. "Abbreviated work day" means the employee is released to return to duty but for less
hours per day than is usual for the position (i.e. four hours versus a full eight-hour shift).
B. "Act" means Tex. Labor Code Chapter 504 (Vernon Supp. 1995), or its successor, as
same may be amended from time to time.
C. "Business necessity" terminations occur when a division's productivity is adversely
affected because an employee is unable to perform his regular duties as a result of an
on-the-job injury (procedure addressed in "Off Duty Injury or Illness Policy" #107.05).
D. "Course and scope of employment" means an activity of any kind or character that is
related to and originates in the work, business, trade, or profession of the employer, and
that is performed by an employee while engaged in or about the furtherance of the affairs
or business of the employer.
E. "Full Duty Status" shall mean that the employee has been certified by his or her
physician to assume his or her normal job duties without restrictions.
PAGE 2 OF 8
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued)
TITLE: WORKERS' COMPENSATION/SALARY REFERENCE NUMBER:
CONTINUATION PROGRAM 409.01
F. "Injury" means damage or harm to the physical structure of the body and those diseases
or infections naturally resulting from the damage or harm. The term also includes
occupational diseases.
G. "Light duty" means temporary work, which can be accomplished by an injured employee
within the stipulated medical or physical limitations, and without exposing others to the
risk of being harmed. Light duty, when accomplished, will contribute to the fulfillment
of the mission of the department as distinguished from "make work" assignments created
solely to accommodate injured employees.
H. "Net after tax pay" shall mean the employee's regular rate of pay after deductions for
income tax withholding and social security.
L "Occupational disease" means a disease arising out of and in the course of employment
that causes damage or harm to the physical structure of the body. The term includes other
diseases or infections that naturally result from the work-related disease.
The term does not include an ordinary disease of life to which the general public is
exposed outside of employment, unless that disease is an incident to a compensable
injury or occupational disease.
J. "Regular, full-time employees" are employees budgeted to work at least forty (40) hours
per week on a continuing basis.
11. GENERAL RULES
A. The City of Denton shall comply with, and provide all benefits as prescribed in, the Act.
B. The Act applies to regular full-time, regular part-time, and temporary/seasonal
employees. The Act applies only to physical injuries and occupational diseases that arise
out of and in the course of employment. It does not apply to natural illnesses, or ordinary
diseases of life, which are not caused or aggravated by any such physical injury.
C. An employee who is injured on the job must notify his or her supervisor immediately
unless the injury is of a nature that prohibits notification, such as unconsciousness.
D. Risk Management shall be responsible for the overall supervision, coordination, and
implementation of the City's Workers' Compensation Program. All questions relative to
the specific application of the Act should be directed to Risk Management, who will
coordinate with the Legal and Human Resources Departments, as appropriate.
PAGE 3 OF 8
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE Continued
TITLE: WORKERS' COMPENSATION/SALARY REFERENCE NUMBER:
CONTINUATION PROGRAM 409.01
E. Additionally, questions related to the Act may be directed to the Texas Department of
Insurance, or the Ombudsman at the local office of the Texas Department of Insurance
Division of Workers' Compensation.
F. In some cases, the position of an employee who has been injured on the job may need to
be filled due to business necessity. In such cases, his or her benefits under the Act will
not be affected. Terminations will be carried out in accordance with State law and any
policies of the City (refer to "Off Duty Injury or Illness Policy" #107.05 for procedure).
G. Employees who have been injured on the job and who engage in any secondary
employment without written approval of the Risk Manager or the Director of Human
Resources shall be subject to disciplinary action and/or loss of salary continuation
benefits.
III. SUPERVISOR'S RESPONSIBILITIES
A. The supervisor shall ensure that all occupational injuries are immediately reported to
Risk Management.
B. The supervisor shall arrange for personal contact with all employees who suffer lost time
injuries. The supervisor or his designee is encouraged to contact an injured employee
within forty-eight (48) hours after the initial report of injury. Concern by the supervisor
for the morale and well-being of an injured employee can partially alleviate anxieties.
Failure to maintain regular contact with an injured employee may be interpreted by that
employee as a lack of concern on the part of the City.
C. The supervisor should analyze all accident reports and take appropriate, corrective action
to minimize the re-occurrence of such accidents.
D. The City Accident Injury Report (available on the City Intranet under Risk Management)
must be completed by the department and received by Risk Management as soon as
possible, but no later than three (3) calendar days after any occupational injury.
E. The supervisor must notify Risk Management whenever an injured employee's duty
status changes from working to non-working (i.e., a previously injured employee who
returns to work and begins to lose time again due to the same injury) or non-working to
working status. These circumstances may recur numerous times and, if so, a separate
notification must be made at each status change.
The initiation and discontinuance of Workers' Compensation benefits is triggered
by the timely notification by the supervisor. Therefore it is imperative that
notification of a status change be made as soon as possible.
PAGE 4 OF 8
POLICY/ADMINISTRATIVE PROCEDUREIADMINISTRATIVE DIRECTIVE (Continued)
TITLE: WORKERS' COMPENSATION/SALARY REFERENCE NUMBER:
CONTINUATION PROGRAM 409.01
F. If an employee is seriously injured or dies, Risk Management must be notified
immediately. If the accident occurs other than during normal working hours, the
department should immediately notify the Risk Manager or the Safety & Claims
Administrator by cell phone.
G. Department Directors shall devote particular attention to making sure that all provisions
of this policy are understood by both supervisors and employees in their departments. It
is of particular importance that Department Directors and supervisory personnel require
employees returning from an examination or treatment to deliver a completed copy of the
DWC-73 form as specified by the Act.
H. Each supervisor shall notify any injured employee of his or her obligation to contact the
supervisor at least once each week, and that failure to do so could subject the employee
to disciplinary action and/or loss of salary continuation benefits.
IV. INDIVIDUAL EMPLOYEES' RESPONSIBILITIES
A. Each employee who is injured on the job must immediately notify his or her supervisor
when the injury occurs, unless the injury is of a nature that prohibits such notification.
The Act requires an employee to notify his or her employer within thirty (30) calendar
days of the date of the injury and to report such injury to the Texas Department of
Insurance Division of Workers' Compensation (DWC) within one (1) year. The DWC
will send forms to the employee to be completed. An employee may forfeit his or her
rights to all benefits if he or she fails to notify his or her supervisor or the DWC.
B. An employee who is on leave due to an on-the-job injury must contact his or her
supervisor at least once each week. If the employee is unable to make contact personally,
he or she shall have someone contact his or her supervisor on his or her behalf. The City
must be aware of the employee's status in order to plan and assign work duties and
responsibilities in an efficient manner.
C. An employee who fails to contact his or her supervisor in accordance with the above
requirements may be subject to disciplinary action and/or loss of salary continuation
benefits.
V. NON-CIVIL SERVICE EMPLOYEES' EMPLOYMENT STATUS
A. This section does not apply to employees governed by Chapter 143 of the Texas Local
Government Code, as amended.
B. The employment status of an employee who suffers an occupational injury or illness
PAGE 5 OF 8
POLICY/ADMIMSTRATIVE PROCEDUREIADM MSTRATIVE DIRECTIVE Continued
TITLE: WORKERS' COMPENSATION/SALARY REFERENCE NUMBER:
CONTINUATION PROGRAM 409.01
shall be governed in accordance with the following provisions:
1. An employee is required to return to work when released to do so by the physician.
Failure to return to work when released may result in appropriate disciplinary. action
and/or the loss of salary continuation benefits.
2. An employee who is released to return to work in less than a full-duty status by the
physician may be required to work in a position or department other than his or her
original position or department. Work duties shall be assigned in accordance with
the employee's limitations and the best interests of the City.
3. No less-than-full-duty (light duty) assignments will extend beyond 960 total hours.
VI. SALARY CONTINUATION
A. In addition to the benefits prescribed under the Act, the City shall provide salary
continuation benefits to all eligible full-time employees.
B. Employees in the Fire and Police Departments who are subject to Chapter 143 of the
Texas Local Government Code, as amended, are entitled under Chapter 143 to a leave of
absence for an illness or injury related to the person's line of duty in lieu of a wage
supplement/salary continuation. The leave is with full pay for a period commensurate
with the nature of the line of duty illness or injury, up to a period of one year. The City
Council may extend this leave at full or reduced pay. Barring such action, the employee
may then use accumulated sick leave, vacation leave, or other accrued benefits.
C. For eligible non-civil service, full-time employees, salary continuation benefits will
begin on the first full day of lost time following the injury. Salary continuation benefits
will be paid for those hours an eligible employee is unable to work due to an on-the-job
injury or illness up to a maximum of 960 hours. To receive this benefit, an employee
must meet the following conditions:
1. The employee must obtain treatment from a physician approved by the City and
must present a DWC-73 form from the treating physician stating that the employee
is unable to return to work.
2. The employee must be a regular, full-time employee. Temporary/seasonal,
part-time, and employees who have been employed for less than six consecutive
months in a full-time capacity, are not eligible for salary continuation.
D. The total amount paid to an injured employee for salary continuation benefits will not
exceed the full net regular after-tax pay he or she would have received for such period at
PAGE 6 OF 8
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued)
TITLE: WORKERS' COMPENSATION/SALARY REFERENCE NUMBER:
CONTINUATION PROGRAM 409.01
his or her regular rate of pay.
E. Employees receiving salary continuation benefits shall continue to accrue vacation and
sick leave at regular rates, and maintain all other benefits allocated with their
employment, for up to 960 hours, provided the absence is necessary and prescribed in
writing by a physician.
F. Employees who are able to perform "light duties" on a full-time basis as determined by
the treating physician will be required to do so if a suitable job activity is available.
Employees in this status may be assigned to another Department within the City.
G. Employees who are able to perform their regular duties on an "abbreviated work day," as
determined by the physician, will be required to do so if suitable job duties are available
and such schedule can be accommodated by the City. Salary continuation benefits will
be pro-rated accordingly.
H. Employees who are not eligible for salary continuation, whose salary continuation
benefits have ended, or whose payroll check is less than their payroll deductions, are
responsible for paying all benefit premiums for themselves (and any covered
dependents), credit union loans, and other deductions by means other than their payroll.
It is the employee's responsibility to make the appropriate arrangements.
I. Salary continuation benefits shall not be paid under the following conditions:
1. When an employee becomes unable to perform regular or full-time work as a result
of any injury or illness sustained prior to the date of employment with the City. This
includes any later aggravation or re-injury while on the job with the City.
2. When an employee becomes unable to perform regular or full-time work as a result
of an injury or illness sustained while off duty. This includes any later aggravation
or re-injury while on the job with the City.
3. When an employee is injured while traveling to or from work, engaging in
"horseplay," or while they are "intoxicated," as these terms are defined by the Act.
4. When an employee is injured while failing to follow established City, Department,
or Division safety policies and procedures.
7. An employee shall forfeit all rights to any continued salary continuation benefits, and
will only be able to receive the benefits available under the Act, if he or she:
1. Fails to give written consent for the release of all pertinent medical information to
the City, or the City's designated agent, when requested, or later withdraws consent
PAGE 7 OF 8
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued)
TITLE: WORKERS' COMPENSATION/SALARY REFERENCE NUMBER:
CONTINUATION PROGRAM 409.01
while receiving salary continuation benefits.
2. Is found to be working for any compensation at any job not approved in writing by
the Director of Human Resources or the Risk Manager and not specifically
recommended by the treating physician.
3. Resigns for any reason while receiving salary continuation benefits.
4. Is discharged for any reason while receiving salary continuation benefits.
5. Consistently fails or refuses to comply with, follow, or consistently disregards or
violates the treating physician's instructions regarding treatment of his or her injury
or illness.
6. Retires or dies while receiving salary continuation benefits.
7. Refuses to perform light, partial, or part-time duty when offered by the City and
authorized by the treating physician.
8. Refuses to acceptor perform a different job with the City offered by the Director of
Human Resources, or designee, when it is within the employee's physical capacity
and if he or she is qualified or can be trained.
9. Falsifies or misrepresents his or her physical condition or capacity while receiving
salary continuation benefits.
10. Refuses to return to duty after he or she has been released to regular duty, light duty
or abbreviated duty by the physician.
11. Fails to contact and notify his or her immediate supervisor on a weekly basis of his
or her condition and expected date of return.
12. Refuses to be treated by a physician approved by the City or fails to provide
certified documentation from the treating physician stating that he or she is not able
to return to work.
K. Salary continuation benefits will not be paid for any relapse or re-injury after the
expiration of one year from the date of the original injury.
VII. EXPIRATION OF SALARY CONTINUATION BENEFITS
A. This section does not apply to employees subject to Chapter 143 of the Texas Local
PAGE 8 OF 8
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE Continued
TITLE: WORKERS' COMPENSATION/SALARY REFERENCE NUMBER:
CONTINUATION PROGRAM 409.01
Government Code, as amended.
B. Employees who are unable to return to duty after expiration of salary continuation
benefits will be placed on the appropriate workers' compensation pay code.
C. After the expiration of salary continuation benefits employees may elect to use accrued
leave on a pro-rated basis to supplement Workers' Compensation payments. Total pay
will not exceed the employee's net pre-injury wages.
D. After the expiration of salary continuation benefits the employees' employment status
will be managed in accordance with all other applicable City policies and directives.
E. Paid leave (sick leave and vacation) will cease to accrue after the expiration of salary
continuation benefits.
F. The expiration of salary continuation benefits will not affect the employee's benefits
under the Act.
VIII. FAMILY AND MEDICAL LEAVE
A. All benefits paid under the Act and/or this policy shall be administered concurrently with
the Family and Medical Leave policy (#107.04).
B. Employees who qualify for family and medical leave must comply with all provisions of
the Family and Medical Leave policy (#107.04).
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Mike Ellis, 349-8424
ACM: Jon Fortune p
SUBJECT
Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his
designee to execute a purchase order through the Buy Board Cooperative Purchasing Network
for the replacement of two existing Bomb Technician Response vehicles for the City of Denton
Fire Department; providing for the expenditure of funds from the Urban Areas Security Initiative
Grant therefor; and providing an effective date (File 4743-Purchase of Two Bomb Response
Vehicles for the City of Denton Fire Department awarded to Caldwell Country Chevrolet in the
total amount of $139,576).
BID INFORMATION
This purchase request is for the replacement of two Bomb Technician Response Vehicles and
miscellaneous equipment including public safety radio systems and emergency lights. These
vehicles are designed to transport certified bomb technicians and specialized equipment to
Chemical, Biological, Radiological, Nuclear, and Explosives (CBRNE) incidents. This
equipment was recommended and approved for 100 percent funding through the 2010 Urban
Areas Security Initiative (UASI). Therefore, Fleet Services proposes that vehicle FD0526 and
FD0527 be replaced with the purchase of two Bomb Technician Response Vehicles, using the
funds from the USAI grant. FD0526 and FD0527 were purchased as part of a previous
Homeland Security Grant project and are beyond their useful life. The replacement vehicles are
part of a Homeland Security Grant enhancement project to allow the bomb technicians to
transport more specialized equipment. Once the new response vehicles are in service, the
vehicles that are being replaced will be disposed of per the State Administrative Agency's
protocol.
Three quotes were obtained for the vehicles, including a quote from the local Chevrolet dealer.
Caldwell Chevrolet was $11,906 lower than the next competitive quote, received from Defender
Public Safety Equipment. A price comparison sheet is included as Exhibit 1.
Item Description Price Ea Department Contract#
I Bomb Response Truck $ 69,788 Fire Prevention Dept BB4358-10
2 Bomb Response Truck $ 69,788 Fire Prevention Dept BB4358-10
TOTAL $139,576
Agenda Information Sheet
July 12, 2011
Page 2
RECOMMENDATION
Approve the purchase of two Bomb Technician Response Vehicles in the amount of $139,576
from Caldwell Country Chevrolet through the Buy Board Cooperative Purchasing Network
(Exhibit 2).
PRINCIPAL PLACE OF BUSINESS
Caldwell Country Chevrolet
Caldwell, TX 77836
ESTIMATED SCHEDULE OF PROJECT
Upon receipt of a purchase order, delivery will take an estimated 120 days.
FISCAL INFORMATION
The vehicles will initially be funded from an Operating Account (4342020.8537) but this account
will be reimbursed 100 percent from the 2010 Urban Areas Security Initiative (UASI) grant.
Requisition 4103508 has been entered in the Purchasing software system.
EXHIBITS
Exhibit 1: Comparison of Quotes Received
Exhibit 2: Quote from Caldwell Country Chevrolet
Respectfully submitted:
Antonio Puente, Jr., 349-7283
Assistant Director of Finance
I -.CIS-File 4741
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Exhibit 2
QUOTE# OOBBD CONTRACT PRICING WORKSHEET
End User: CITY OF DENTON
Contractor: CALDWELL COUNTRY
Contact Name: MIKE ELLIS
CALDWELL COUNTRY
Email: MIKE.ELLIS@CITYOFDENTON.COM
Prepared By: Averyt Knapp
Phone 940-349-8410
Email:
aknapp@caldwellcountry.com
Fax 940-349-8492
Phone 800-299-7283 or 979-
567-6116
Location City & State: DENTON, TX
Fax 979-567-0853
Date Prepared: JUNE 30, 2011
Address: P. 0. Box 27,
Caldwell, TX 77836
Contract Number: BUY BOARD #358-10
Tax ID # 14-1856872
Product Description: 2011 CHEVROLET 3500 CREWCAB 4X4 DOOLEY CK30943
A Base Price & Options:
$69,588
B Published Options
Code
Description
Cost
Code
Description
Cost
4X4, LT PACKAGE,
INCL
DOOLEY-FULL FOUR
DOOR, 6.6L DURAMAX
DIESEL, ALLISON 1000
6-SPD AUTOMATIC, CAB
LIGHTS, 17" PAINTED
STEEL WHEELS,
AMFM/CD W/NAVIGATION
SYSTEM, REARVIEW
CAMERA SYSTEM,
FACTORY CHROME NERF
BARS, MARKER LIGHTS,
TWO YEAR ONSTAR,
POWER BUCKET SEATS,
POWER MIRRORS-(NON
TOW FOLD IN TYPE),
ALL ITEMS PER SCAN
OF 4/25, ARE DCU 23"
TALL, .035 GAUGE
ALUM, PAINT TO MATCH
41U BLACK, SOLID
METAL FRONT-NO
WINDOW, SOLID METAL
LIFT REAR DOOR-NO
WINDOW, SOLID METAL
SIDE LIFT DOORS-NO
WINODWS, TOOL BOXES
(1 EACH SIDE)
HORIZONTAL SHELVES
IN TOOL BOXES (1
EACH SIDE, (4) 12V
INTERIOR LIGHTS, ALL
INSTALLED
1500 WATT INVERTER,
INCL
CALDWELL COUNTRY
6012-6204-6034-6033
15" CONSOLE W/FLOOR
PLATE, ARMREST,
CUPHOLDER, 6039 LOCK
BOX W/ARMREST &
LOCK, CCSRN2 CENCOM
GOLD SIREN/LIGHT
CONTROLLER W/PA,
CCMACX20 20' MIC
EXTENSION, SA315P
100 WATT SPEAKER
SAK1 SPEAKER
BRACKET, 4-VTX609C
VERTEX HIDEAWAY LED
WHITE, DP6600
DOMINATOR-6 LAMP ALL
RED, SLPMMRR SUPER
LED SLIMLIGHTER
RED/RED, AVN2RR DUAL
AVENGER RED/RED,
UHF2150A UNIVERSAL
HEADLIGHT FLASHER,
RANCH HAND FULL
REPLACEMENT FRONT
BUMPER W/GRILL GUARD
& REC, RANCH HAND
REAR BUMPER W/BOLT
RECEIVER, D&R 26'
SINGLE DRAWER
CABINET W/DIVIDERS
(TS-01-26 & 933-
0068A), COPUSTAR-
VEHICLE ALARM SYSTEM
W/REMOTE START, EB-
1290 EXTENDO BED
W/48" X 90" DECK,
WINDOW TINT, WINCH-
9.5T & CARRIER
W/QUICK CONNECT, ALL
LABOR, APX7500 DUAL
BAND MID POWER,
APX7000 DIGITAL
PORTABLE RADIO, VEH
EXTERNAL KIT,
PROGRAMMING
PO BOX 27
CALDWELL,TEXAS 77836
INCL
Subtotal B
C Unpublished Options
Code
Description
Cost
Code
Description
Cost
Subtotal C
D Other Price Adjustments (Installation, Delivery, Etc...)
INCL
Subtotal D
E Unit Cost Before Fee & Non-Equipment Charges(A+B+C+D) $69,588
X
Quantity Ordered
2
Subtotal E
$139,176
F
Non-Equipment Charges (Trade-In, Warranty, Etc...)
BUY BOARD
$400
G.
Color of Vehicle: WHITE
H.
Total Purchase Price (E+F)
$139,576
Estimated Delivery
Date:
120 DAYS APPX
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR
HIS DESIGNEE TO EXECUTE A PURCHASE ORDER THROUGH THE BUY BOARD
COOPERATIVE PURCHASING NETWORK FOR THE REPLACEMENT OF TWO
EXISTING BOMB TECHNICIAN RESPONSE VEHICLES FOR THE CITY OF DENTON
FIRE DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS FROM THE
URBAN AREAS SECURITY INITIATIVE GRANT THEREFOR; AND PROVIDING AN
EFFECTIVE DATE (FILE 4743-PURCHASE OF TWO BOMB RESPONSE VEHICLES FOR
THE CITY OF DENTON FIRE DEPARTMENT AWARDED TO CALDWELL COUNTRY
CHEVROLET IN THE TOTAL AMOUNT OF $139,576).
WHEREAS, pursuant to Ordinance 2005-034, the Buy Board Cooperative Purchasing
Network has solicited, received, and tabulated competitive bids for the purchase of necessary
materials, equipment, supplies, or services in accordance with the procedures of state law on
behalf of the City of Denton; and
WHEREAS, the City Manager or a designated employee has reviewed and recommended
that the herein described materials, equipment, supplies, or services can be purchased by the City
through the Buy Board Cooperative Purchasing Network programs at less cost than the City
would expend if bidding these items individually; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of
funds to be used for the purchase of the materials, equipment, supplies, or services approved and
accepted herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The items shown in the "File Number" referenced herein and on file in
office of the Purchasing Agent, are hereby accepted and approved as being the lowest
responsible bids for such items:
FILE
NUMBER VENDOR AMOUNT
4743 Caldwell Country Chevrolet $139,576
SECTION 2. By the acceptance and approval of the items set forth in the referenced file
number, the City accepts the offer of the persons submitting the bids to the Buy Board
Cooperative Purchasing Network for such items and agrees to purchase the materials, equipment,
supplies, or services in accordance with the terms, conditions, specifications, standards,
quantities and for the specified sums contained in the bid documents and related documents filed
with the Buy Board Cooperative Purchasing Network and the purchase orders issued by the
City.
SECTION 3. Should the City and persons submitting approved and accepted items set
forth in the referenced file number wish to enter into a formal written agreement as a result of the
City's ratification of bids awarded by the Buy Board Cooperative Purchasing Network, the City
Manager or his designated representative is hereby authorized to execute the written contract
which shall be attached hereto; provided that the written contract is in accordance with the terms,
conditions, specifications and standards contained in the Proposal submitted to the Buy Board
Cooperative Purchasing Network, and related documents herein approved and accepted.
SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates
the authority to take any actions that may be required or permitted to be performed by the City of
Denton under the File 4743 to the City Manager of the City of Denton, Texas, or his designee.
SECTION 5. By the acceptance and approval of the items set forth in the referenced file
number, the City Council hereby authorizes the expenditure of funds therefor in the amount and
in accordance with the approval purchase orders or pursuant to a written contract made pursuant
thereto as authorized herein
SECTION C. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this day of , 2011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
s
BY: 0 1 A 'i 1A
4-ORD-File 4743
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011 Questions concerning this
acquisition may be directed
DEPARTMENT: Materials Management to Keith Gabbard 349-7144
ACM: Jon Fortune
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and
approving the expenditure of funds for the purchase of Cem-Lime from TXI, which is available
from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas
Local Government Code exempting such purchases from the requirements of competitive
bidding; and providing an effective date (File 4747-Purchase of Cem-Lime for Street Department
in the unit price amount of $135/dry ton for an annual estimated amount of $300,000).
FILE INFORMATION
This item will be used by the Street Department to modify or stabilize the subgrade of streets to
improve constructability. Cem-Lime, a product combination of lime and cement, provides
strength, durability, and more resistance to water when compared to typical hydrated lime. Lime
works well to bring the plasticity index (PI) of the soil to workable levels. The cement produces
the strength necessary to bind particles together to provide a stronger sub-base with better
waterproofing characteristics. This product is more suitable for soil types found in the Denton
area. This additional lime content adds calcium hydroxide, the primary compound responsible
for lowering the plasticity index of clay soils found in North Texas.
Chapter 252 of the Texas Local Government Code exempts from the competitive bid process,
those supplies and resources protected by copyright or patent and available from only one
source. TXI is the only known source of this product and therefore this is considered a sole
source acquisition.
RECOMMENDATION
Award to TXI in the unit price amount of $135/dry ton for an annual estimated amount of
$300,000.
PRINCIPAL PLACE OF BUSINESS
TXI
Dallas, TX
Agenda Information Sheet
July 12, 2011
Page 2
ESTIMATED SCHEDULE OF PROJECT
This item can be delivered and installed within two days of receipt of an order.
FISCAL INFORMATION
This item will be charged to the individual project account as street surfacing projects are
scheduled.
EXHIBITS
Exhibit 1: Quote/Sole Source Letter from TXI
Respectfully submitted:
Antonio Puente, Jr., 349-7283
Assistant Director of Finance
I AIS-File 4747
Exhibit 1
TXI ..__-..-7-_T7 OFFICE
1341 west Mc 37 J Lane . 9allas,Texas 75247 - 972.647.6700 - wwwxxi.co
CEM-LIME
June 10, 2011
City of Denton
901 B Texas Street
Denton, TX 76209
Attn: Karen Smith
TXI Operations, LP has a product called Cem-Lime which is a cementitious
product. This product is produced at our cement mill located in Midlothian, Texas
and is available in a dry powder form. At significant cost to itself, TXI has
developed the processes and components necessary to manufacture Cem-Lime
through internal experimentation, expertise and inventiveness. However,
because of the proprietary nature of the Cem-Lime product and manufacturing
processes, TXI believes that it is the sole supplier that can provide you with Cem-
Lime.
Cem-Lime price to the City of Denton is $136.00 per dry ton delivered and
spread. This price is valid through July 1, 2012.
If you have any questions or need more information, please contact me at 214-
519-1622.
Sincerely,
Jason Stilwell
`,-i'North Texas Cement & Aggregates
Senior Sales Representative
972-647-6739 Office
214-619-1622 Mobile
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR,
AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE
PURCHASE OF CEM-LIME FROM TXI, WHICH IS AVAILABLE FROM ONLY
ONE SOURCE IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF
CHAPTER 252 OF THE TEXAS LOCAL GOVERNMENT CODE EXEMPTING
SUCH PURCHASES FROM THE REQUIREMENTS OF COMPETITIVE BIDDING;
AND PROVIDING AN EFFECTIVE DATE (FILE 4747-PURCHASE OF CEM-LIME
FOR STREET DEPARTMENT IN THE UNIT PRICE AMOUNT OF $135/DRY TON
FOR AN ANNUAL ESTIMATED AMOUNT OF $300,000).
WHEREAS, Section 252.022 of the Local Government Code provides that
procurement of items that are only available from one source, including; items that are
only available from one source because of patents, copyrights, secret processes or natural
monopolies; films, manuscripts or books; electricity, gas, water and other utility
purchases; captive replacement parts or components for equipment; and library materials
for a public library that are available only from the persons holding exclusive distribution
rights to the materials; need not be submitted to competitive bids; and
WHEREAS, the City Council wishes to procure one or more of the items
mentioned in the above paragraph; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The following purchase of materials, equipment or supplies, as
described in the "File" listed hereon, and on file in the office of the Purchasing Agent,
and the license terms attached are hereby approved:
FILE
NUMBER VENDOR AMOUNT
4747 TXI $13 5/dry ton
SECTION 2. The acceptance and approval of the above items shall not
constitute a contract between the City and the person submitting the quotation for such
items until such person shall comply with all requirements specified by the Purchasing
Department.
SECTION 3. The City Manager is hereby authorized to execute any contracts
relating to the items specified in Section 1 and the expenditure of funds pursuant to said
contracts is hereby authorized.
SECTION 4. This ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this the day of , 2011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: , L A c P I i
3-ORD-File 4747
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Wastewater
ACM: Howard Martin, Utilities 349-8232
SUBJECT
Consider adoption of an ordinance authorizing the City Manager of the City of Denton, Texas, or
his designee, to execute for and on behalf of the City a Pipeline Crossing Agreement, by and
between the City of Denton, Texas, and the Union Pacific Railroad Company, relating to the
constriction, maintenance and operation of a sanitary sewer pipeline within the railroad right-of-
way, located immediately north of said railroad right-of-way's intersection with McKinney
Street at Mile Post: 718.95, Choctaw Subdivision within the Buffalo Bayou, Brazos and
Colorado Railroad Company Survey, Abstract Number 185, City and County of Denton, Texas;
authorizing the expenditure of funds therefor; and providing an Effective Date. The Public
Utility Board recommended approval (6-0).
BACKGROUND
As a component of the Pecan Creek Interceptor Phase II 36" sanitary sewer project, it is
necessary to seek formal authorization from the Union Pacific Railroad Company to cross their
right-of-way with the subject wastewater improvements. Union Pacific Railroad Company is
requiring the City of Denton to execute the Pipeline Crossing Agreement prior to its execution,
which is outside standard practice of the City.
OPTIONS
1. Approve the Pipeline Crossing Agreement.
2. Not approve the Pipeline Crossing Agreement.
3. Table for future consideration.
RECOMMENDATION
Staff recommends approval of the Ordinance.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
Pecan Creek Interceptor Phase 11:
September 27, 2010 - The Public Utility Board recommended approval (6-0).
October 19, 2010 - The City Council unanimously approved Ordinance 2010-266 authorizing
acquisition of all land rights necessary for the Phase II segment of the Project.
UPRR Pipeline Crossing Agreement:
May 23, 2011 - The Public Utility Board recommended approval (6-0).
FISCAL INFORMATION
There is a one-time payment fee of $9,600.00 to Union Pacific Railroad Company. Funding for
Pecan Creek Interceptor II will come from existing bond funds. The Wastewater Department will
be the funding department for this project. The project numbers for this project are 640126539
and 640126540.
BID INFORMATION
Staff intends to bid the Pecan Creek Interceptor Phase II project in July, 2011. Constriction for
the project is estimated to begin shortly thereafter.
EXHIBITS
1.
Ordinance
2.
Agreement
3.
Location Map
4.
PUB Minutes
Respectfully submitted,
Frank G. Payne, P.E.
City Engineer
Prepared by,
Paul Williamson,
Real Estate Manager
s:Megallour documentslordinanceski I\uprr pipe4ine crossing agreement ordinance doc
ORDINANCE NO.
AN ORDINANCE AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
FOR AND ON BEHALF OF THE CITY A PIPELINE CROSSING AGREEMENT, BY AND
BETWEEN THE CITY OF DENTON, TEXAS AND THE UNION PACIFIC RAILROAD
COMPANY, RELATING TO THE CONSTRUCTION, MAINTENANCE AND OPERATION OF
A SANITARY SEWER PIPELINE WITHIN THE RAILROAD RIGHT-OF-WAY, LOCATED
IMMEDIATELY NORTH OF SAID RAILROAD RIGHT-OF-WAY'S INTERSECTION WITH
MCKINNEY STREET AT MILE POST: 718.95, CHOCTAW SUBDIVISION WITHIN THE
BUFFALO BAYOU, BRAZOS AND COLORADO RAILROAD COMPANY SURVEY,
ABSTRACT NUMBER 185, CITY AND COUNTY OF DENTON, TEXAS; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute a Pipeline
Crossing Agreement ("Agreement") by between the City of Denton, Texas and the Union Pacific
Railroad Company in the form of the Agreement attached to and made a part of this ordinance for all
purposes, for the purpose of constructing, maintaining and operating a City sanitary sewer pipeline.
SECTION 2. The City Manager is authorized to make the expenditures as set forth in the
attached Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 12011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: 44z~~
Pipeline Crossing 080808 Poldcr No. 02579-79
Last Modified: 03/29110
Form Approved, AVP-Law
PIPELINE CROSSING
AGREEMENT
Mile Post: 718,95, Choctaw Subdivision/Branch
Location: Denton, Denton County, Texas
THIS AGREEMENT ("Agreement') is made and entered into as of May 11, 2011, ("Effective
Date') by and between UNION PACITIC RAILROAD. COMPANY, a Delaware corporation,
("Licensor"} and CITY OF DENTON, a Texas municipal corporation to be addressed at 901 A Texas St,
Denton, Texas 76209 ("Licensee").
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
Article 1. LICENSOR GRANTS RIgHT.
In consideration of the license fee to be paid by the Licensee and in further consideration of the
covenants and agreements herein contained to be by the Licensee kept, observed and performed, the
Licensor` hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to
maintain and operate
one 36 inch encased with a 48 inch steel casing pipeline for transporting and conveying wastewater only
across Licensor's track(s) and property (the ".Pipeline") in the location shown and in conformity with the
dimensions and specifications indicated on the print dated September 29, 2009 and marked Exhibit A,
attached hereto and hereby made a part hereof. Under no circumstances shall Licensee modify the use of
the Pipeline for a purpose other than transporting and conveying wastewater, and the Pipeline shall not be.
used to convey any other substance, any fiber optic cable, or for any other use, whether such use is
currently technologically possible, or whether such use may ovine into existence during the life of this .
Agreement.
Article 2. LICENSE FEE.
Upon execution of this Agreement, the Licensee shall pay to the Licensor none-time License Fee
of Nine Thousand Six Hundred Dollars ($9,600.00),
Article 3. CONSTRUCTION MAINTENANCE
AND
OPERATION.
The grant of right herroin made to the Licensee is subject to each and all of the terms, provisions,
conditions, limitations and covenants set forth herein and in Exhibit B, attached hereto and hereby made.
a part hereof.
Article 4. CQNTRACTORS.
If a contractor is hired by Licensee for any work performed on the Pipeline (including initial
construction and subsequent relocation or maintenance and repair work), then the Licensee shall provide a
copy of this Agreement to its contractor; require its contractor (and its subcontractors) to comply with all
the terms and provisions hereof relating to the work to be performed; and require each contractor (and its
Subcontractors) to execute and . deliver to Licensee before entering Licensor's property. the
"Endorsement" attached hereto as Exhibit E, and made part hereof, which Licensee shall promptly
delivery to Licensor upon Licensor's request.
Article 5. JNSURANCE,
A. During the life of the Lease, Licensee shall fully comply with the insurance requirements
described in Exhibit C.
B. Failure to maintain insurance as required shall entitle, but not require, Licensor to terminate
this License immediately,
C. If the Licensee is subject to statute(s) limiting its insurance liability and/or limiting its Ability
Ito obtain insurance in compliance with Exhibit C of this lease, those statutes shall apply.
D,' Licensee hereby 4Anowledges that is has reviewed the requirements of Exhibit C, including;
without limitation the requirement for Railroad Protective Liability. insurance during construction,
maintenance, installation, repair or removal of the pipeline which is'the subject of this Agreement.
Article G. TERM.
This Agreement shall take effect as of the Effective Date first herein written and shall continue in
full force and effect until terminated as herein provided.
IN. WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written.
UNION PACIFIC RAILROAD COMPANY CITY OF DENTON
By. By:.
Manager - Contracts
Naine Printed:
Title:
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS,.CITY ATTORNEY
BY:
PLACE.ARROW INDICATING NORTH. a FORMDR-0404-B
DIRECTION RELATIVE TO CROSSING REV. 5-15-98
ENCASED NON-FLAMMABLE (If3rr.com
PIPELINE CROSSING
NOTE: ALL AVAILABLE DIMENSIONS MUST BE
?~,?x NO SCALD FILLED III TO PROCESS THIS. APPLICATION.
_ ~ / _ Y RR•S R/N
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FTC ; - -
LIt1
r-~ fkX FT. . j . (SEE IAFE 36 1) (SE E !•6 S) Tll~ FL 1
INCAAESf R. R• TORN/ 4ti1 - µ{1N TRACk NtGLE DF CROSS INGI - toREAAISf A. RC' fl.
^1-. y~ s
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wo- . ~ -tank" S Ncr fk ~V(IfeT (TVr s.. n) M(? ~I 6 I
4~ ,1,, (DES laC tIXED.O6JICT ESCRI £ IKEA 0 JEC J" J
4W ate, v,? (SEE 1:01E 6) ISFE NOTE S~
[DIS)ANCE JLONO TAA£A fRW 3ECI100 L[ttC CROSSII+0 A 1-40- 3'R +u! YID FT.
[NO FE: TNIS DIVENSIDU X[OUfREO III $L CASES, Lot,
AT LOCAIIONS 1:01 USING SECTIONS, DISrAIiCt -
- T6 A LEGLL SURVEY LIIA IS-RCOU_IR_£0) -
PR' S AiX-0 3y e - -
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I I GROUND STEEL CASING WALL
1vllt. GIST SAAFACE THICKNESS' CHART
` ~ 5X~ Nate 2~• 1 -
. - - I SLBGRIDE - I IHIMUEM CASING DIAMETER of
THICKHI NE55 DAAIH0 PIPE-
-
KUAUOLU I 500' E/4• 12, 4A LE55 - -
.312S S116- OVER 12 .18"
(,FT. + .3T50' 3/8' OVER 18'-22'
I4.9 Fr vIH.) I .43TS- 7116" OVER 22 =Z0•
_FT. (20 fl uAX,) I~FT+ SEAL CASING $000' I/2" OVER 201-34"
SEAL C►S NG .5625, 11111; OVER 34 -4r.
Jr. CASING PPP {See tfatr 41 13 Fr. milk) , 6240" SL8 w
. OVER 42"-4p
/ - ^ ~ - T CARAFEA PIPE ^ OVER .4$'• MUST BE
APPROVED BY R. F4 CO.
NOTEt TNIS CHART IS ONLY
0 FOR SMOOTH STEEL CASINO
rNIMW YIELD
I - + + STRENGTH .OF 35I 000 PSI.
2 D. ~5 F6~ I Z (
. - arr. Eats FT. `1
I., FT. FORMULA TO FIGURE CASING
LENGTH WITH ANGLE OF
IOU FT. CROSSING .OTNER THAN 90•-
L-FT. 8,a+
HOt£S I (CASING LEGGIN -AHEM VEkSURED AlLONO PIPELINE.)
II ALL HORIZONTAL DISTANCES to BE YEARAEO AT RIGHT ANGLES !ROVE OF IRACA: - [A SIN - e -
1. CASING TO EXTEND OtTONO THE E OF TRACK Af RICHT ANGLES THE OREAFEROF 20 • 20 FI,. OR SO FF., - .,.yh+g ~
AM BEYOND LMT Or RAILAOAO RIONT-OF-WAY If NCCESSARY 10 PROVIDE PROPER. LENGIN OUTSIDE OF MACK. M]F7, p 1ST.
31 WINIR I OF 30' SR011 TNC ENO OF ANY RAILROAD E1R10OC, 4 Of ANY CIAVEATI OR fAOV ANY STIITCHING AREA. % INOTE 2)
43 SIONAL ACPRESENTAItVE WST 0E PRESENT OUEENO INSTALLATION If RAILROAD SIGIIALS ARE IN ?NE VICINITY Or CROSSING. IRA R
S) ALCOVAOLC FIXED OBJECTS INCLUDE( DACIRALLS OF 6RIOGEST 4 OF ROAD CROSSINGS 0 OVERNEAD VIADUCTS IOIVC AOAO NAVE), 02 CIRVER76•
61 CASINO I" OAARIEA ►IPt WSl BC PIAtEO A k11NIµA1 OF 2 FEET 411011 THE EXIST)NO r10ER OPTIC CABLE. ANY tRCAVAlIOH REQUIRED IFI THIN -
S..... .-TNC EK tar INO IF= OPTIC EAGLE MIST BE MkNp DUO. -
A) 15 PIPELINE CROSSING WITHIN DEDICATED STREET ?-YES;-,X-NO; EXHIBIT "A
0.1 IF YES, NAME OF STREET FOR AMLIM RAC Gen
Of DISTRIBUTION LINE OR TRANSMISSION LINE
C) BIER PIPE : UNION PACIFIC RAILROAD CO.
COMMODITY TO BE CONVEY (t V[L 1
OPERATING PRESS 'E PSI I(~y,41M4J
WALL THICKNESS FOIAMETER `=MATERIAL lIC ; ,susdtYismvi -
E) CASING PIPE : j; It . E. S. 1+ 641
WALL THICKNESS ,DIAMETER Il (MATERIAL t + . ; M. P •1S
NOTE :CASING MUST HAVE 2".CLEARANCE BETWEEN GREATEST ENCASED O:st~.•; CROSSING AT
CASINGEPDIPE. W14ENOFURNISHINGPDIMENSIONS, GIVE OUTSIDE OFF ~[kT6h Oe-A ' x
CARRIER PIPE AND INSIDE OF CASING PIPE. - Luunenn Ieoud„ Isr.ep -
FI METHOD OF INSTALLING CASING PIPE UNDER TRACK($): P 0# n`«i~»
J~___ORY BORE AND JACK (WET BORE NOT PERMITTED)
- TUNNEL ; OTHER RR FILE NO. DATE
GI WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? YES;: -.-..RIO;
JA VD
H) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BQ N JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK
IT A R x I H c
1) APPLICANT HAS CONTACTED 1-800-336-9143 I30' AIIN. IN AIt OEC►SIWK, W P. COUNINICAIIONS
U. P. COM10.IN1 TION DEPARTMENT, AND HA DETERMINED FIBER pEPARTLFNT SLTo DE CONTACTED X IEN AovAA D
OPTIC CABLE A DOES ; DOES NOT EXITST 1 VICINITY OF or Ra°' To DETERMINE ESrENtc AND
2rl _14 I C> 4-f, tocArEON or FETTER OPTIC CIAIf.
WORK TO BE PERFORMED 71CXET NO. /
PHONE 4
I-eoo-)JC-r,e~
Pipeline Crossing 07120108
room Approved, AvP Law
EXHIBIT B
Section 1. LIMITATION AND SUBORllJ1YaXON OF RIGMS„ GRANTED.
A. The foregoing grant of right is subject and. subordinate to the prior and continuing right and
obligation of the Licensor to use and maintain its entire property` including the right and power of
the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate
railroad tracks, signal, communication, fiber 'optics, or other wirelines, pipelines and other
facilities upon, along or across any or all parts of its property, all or any of which may be freely
done at any time or times by the Licensor without liability to the Licensee or to any ocher party
for compensation or damages.
B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of
licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renav
and extend the same, and is made without covenant of title or for quiet enjoyment.
Section 2. CONSTRUC'T`ION. MAINTENANCE AND OPERATION.
A. The Pipeline shall be designed, constructed, operated, maintained, repaired, renewed, modified
and/or reconstructed by the Licensee in strict conformity with (i) Licensor's current standards and
specifications ("UP Specifications?'), except for variances approved in advance in writing by the
Licensor's Assistant Vice President Engineering - Design, or his authorized representative; (ii)
such other additional safety standards as the Licensor; in its sole discretion, elects to require,
including, without limitation, American Railway Engineering and Maintenance-of-Way
Association ("AREMA") standards and guidelines (collectively, "UP Additional Requirements"),
and (iii) all applicable laws, rules and regulations ("Laws"). If there is any conflict between the
requirements of any Law and the UP Specifications or the UP Additional Requirements, the most
restrictive will apply.
B. All work performed on property of the Licensor in connection with the design, construction,
maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the
satisfaction of the Licensor.
C. Prior to the commencement of any work in connection. with the design, construction,
maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline
from Licensor's property, the Licensee shall submit to the Licensor plans setting out the method
and manner of handling the work, including the shoring and cribbing, if any, required to protect
the Licensoes operations, and shall not proceed with the work until such plans have been
approved by the Licensor's Assistant Vice President Engineering Design, or his authorized .
representative, and then the work shall be done to the satisfaction of the Licensor's Assistant Vice
President Engineering Design or his authorized representative. The Licensor shall have the right,
if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks
during the time of construction, maintenance, repair; renewal, modification; relocation,
reconstruction or removal of the Pipeline, and, lit the .event the Licensor provides such support,
the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered
therefore, all expenses incurred by the Licensor in connection therewith, which expenses shall
Include all assignable costs.
D. The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the
grade even with the adjacent surface of the ground.
8. In the prosecution of any work covered by this Agreement, Licensee shall secure any and all
necessary permits and shall comply with all applicable federal, state.and local laws, regulations
and enactments affecting the work including, without.limitation, all applicable Federal Railroad
Administration regulations.
Section 3. NOTICE OF COMMENCEME T OF ORI{ LICENSOR REPKESENTATM.
SUPERVISION ! FLAGGING ! SAFE, T
A. If an emergency should arise requiring immediate attention, the Licensee shall provide as much
notice as practicable to Licensor before commencing any work. In all other situations, the
Licensee shall notify the Licensor at least ten (I O) days (or such other time as the Licensor may
.
allow) in advance of the commencement of any work upon property of the Licensor in connection
with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or . .
removal of the Pipeline. All such work shall be prosecuted diligently to completion. The
Licensee will coordinate its initial, and any subsequent work with the following employee of
Licensor or his or her duly authorized representative (hereinafter "Licensor Representative" or
"Railroad Representative"):
Lonnie Matteson- MTM Harvey Lantrip - MSM
Union Pacific Railroad Company Union Pacific Railroad Company
Idmattes@up.com 1400 N Dallas St
903.415.2485, Cell 432.923.9450 Ennis, V 75119
402.501.4371, Cell 214.316.7836
B. Licensee, at its own expense, shall adequately police and supervise all work to be performed. The
responsibility of Licensee for safe conduct and adequate policing and supervision of work shall
not be. lessened or otherwise affected by Licensor's approval of plans and specifications involving
the work, or by Licensors collaboration in performance of any work, or by the presence at the
work site of a Licensor Representative, or by compliance by Licensee with any requests or.
recommendations made by the Licensor Representative.
C." At the request of Licensor, Licensee shall remove from Licensoes;.property any employee 'who
fails to conform to the instructions of the Licensor representative in connection with the work on
Licensor's property. To the extent allowed by law; Licensee shall indemnify Licensor against any '
claims arising from the removal of any such employee from Licensor's property.
D. Licensee shall notify the Licensor Representative at least ten (10) working days in advance of
proposed performance of any work in which any person or equipment will be within twenty-five
(25) feet of any track, or will be near enough to any track that any equipment extension (such as,
but not limited to, a crane boom) will reach to within twenty-lave (25) feet of any track. No work
of any kind shall be performed, and . no person, equipment; machinery, tool(s), material(s),
vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of
any of Licensors track(s) at any time, for any reason, runless and until a railroad flagman is
provided to watch for trains. Upon receipt of such ten .(10) day notice, the Licensor.
Representative will determine and inform Licensor whether a flagman need be present and
whether any special protective or safety measures need to be implemented. If flagging or other
special protective or safety measures are performed by Licensor, Licensor will bill Licensee for
such expenses incurred by Licensor, unless Licensor and a federal, state or local governmental
entity have agreed that Licensor is to bill such expenses to the federal, state or local governmental
entity. If Licensor will be sending the bills to Licensee, Licensee shall pay such bills within thirty'
(30) days of receipt of billing. If Licensor performs any flagging, or other special protective. or
safety measures are.performed by Licensor, Licensee agrees that Licensee is not relieved of any
responsibilities or liabilities set forth in this Agreement.
E. The rate of pay per hour for each flagman will bb the prevailing hourly rate in effect for an eight-
hour day for the class of flagmen used during regularly assigned hours and overtime in
accordance with Labor Agreements and Schedules in effect at the time the work is performed: hi
addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare,
supplemental sickness, Railroad Retirement and unemployment compensation, supplemental
pension, Employees Liability and Property Damage. and Administration will be included, .
computed on actual payroll. The composite charge will.be the prevailing composite charge in
effect at the time the work is performed. One and one-half tunes the current hourly rate is paid
for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays.
Wage rates are subject to change, at any time, by law or by agreement between Licensor and its
employees, and may be retroactive as a result of negotiations or a ruling of an authorized
governmental agency. Additional charges on labor are also subject to change. If the wage rate or
additional charges are changed, Licensee (or the governmental entity, as applicable) shall pay on
the basis of the new rates and charges.
I;
F. Reimbursement to Licensor will be required covering the full eight-hour day during which any
flagman is furnished, unless the flagman can be assigned to other railroad work during a portion
of such day, in which event reimbursement will not be required for the portion of the day during
which the flagman is engaged in other railroad work. Reimbursement will also be required for
any day not actually worked by the flagman following the flagman's assignment to work on the
project for which Licensor is required to pay the flagman and which could not reasonably be
avoided by Licensor by assignment of such flagman to other work, even though Licensee may not
be working during such tune. When it becomes necessary for Licensor to bulletin and assign an
employee to a flagging position in compliance with. union collective bargaining agreements,
Licensee must provide Licensor a minimum of five (5) days notice prior to the cessation of the
need for a flagman. If five (5) days notice of cessation is not given, Licensee will still be required
to pay flagging charges for the five (5) day notice period required by union agreement to be given
to the employee, even though flagging is not required for that period. An additional ten (10) days.
notice must then be given to Licensor if flagging services are needed again after such five day
cessation notice has been given to Licensor.
Q. Safety of personnel, property, rail operations and the public is of paramount importance in the
prosecution of the work performed by Licensee or its. contractor. Licensee shall be responsible
for initiating, maintaining and supervising all safety, operations and programs in connection with
the work. Licensee and. its contractor shall at a minimum comply with Licensor's safety standards
listed in. Exhibit D, hereto attached, to ensure uniformity with the safety standards followed. by
Licensor's own forces. As a part of Licensee's safety responsibilities, Licensee shall notify
Licensor if it determines that any of Licensors safety standards are contrary to good safety
practices, Licensee and its contractor shall furnish copies of Exhibit D to each of its employees
before they enter the job site.
H. Without limitation of the provisions of paragraph G above, Licensee shall keep.the job site free
from safety and health hazards and ensure that their employees are competent and adequately
trained in all safety and health aspects of the job.
1. Licensee shall have proper first aid supplies available on the job site so that prompt first aid
services may be provided to any person injured on the job site. Prompt notification shall be given
to licensor of any U.S. Occupational Safety and Health Administration reportable injuries.
Licensee shall have a non-delegable duty to control its employees while they are on the job site
or any other property of Licensor, and to be certain they do not use, be under the influence.of, or
have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe
performance of any work.
J. If and. when requested by Licensor, Licensee shall deliver to Licensor a copy of its safety plan for.
conducting the work (the "Safety Plan"j. Licensor shall have the right, but not the obligation, to
require Licensee to correct any deficiencies in the Safety Plan. The terms of this Agreement shall
control if there are any inconsistencies between this Agreement and the Safety Plan.
Section q. LICE N EE TO BE R ENTIRE EXPENSE,
The Licensee shall bear the entire cost and :expense incurred in connection with.the design,
construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal
or reconstruction of the Pipeline, including any and all expense which may be incurred by the Licensor in
connection therewith for supervision, inspection, flagging, or otherwise.
Section 5. MINFORCEMENT. RE, LOCATION DR REMOVAL OF PIPELINE.
A. The license herein granted is subject to the needs and requirements of the Licensor in the safe and
efficient operation of its railroad and in the improvement and use of its property. The Licensee
shall, at the sole expense of the Licensee, reinforce or otherwise modify the Pipeline, or move all
or any portion of the Pipeline to such new location, or remove the Pipeline from the Licensor's
property, as the Licensor may designate, whenever, in the furtherance of its needs and
requirements, the Licensor, at its reasonable discretion, °A-its sole ele finds such action
necessary ep desirable.
B. All the terms, conditions and stipulations herein expressed with reference to the Pipeline on
property of the Licensor in the location hereinbefore. described shall, so far as the Pipeline
remains on the property, apply to the Pipeline as modified, changed or relocated within .the
contemplation of this section:
Section 6. N TE FERE E WITH ICEN R'S OPERATION.
A. The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor
shall be designed, constructed and, at all times, maintained, repaired,. renewed and operated.in
such manner as to cause no interference whatsoever with the constant, continuous and
uninterrupted use of the tracks, property and facilities of the Licensor and nothing shall be done
or suffered to be done by the Licensee at any time that would in any manner impair the safety
thereof.
B. Explosives or other highly. flammable substances shall not be stored: on Licensor's property
without the prior written approval of Licensor.
..C. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over
Licensoe's trackage shall be installed or used by Licensee or its contractors without the prior
written permission of Licensor.
D. When not in use, any machinery.and materials of Licensee or its contractors shall be kept at least
fifty (50) feet from the centerline of Licensor's nearest track.
E. Operations of Licensor and work. performed by Licensor's personnel may cause delays in the
work to be performed by Licensee. Licensee accepts this risk and agrees that Licensor shall have
no liability to Licensee or any other person or entity for any such delays. Licensee shall.
coordinate its activities with those of Licensor and third parties so as to avoid interference with
railroad operations. The safe operation of L.iceirsoes train movements and other activities by
Licensor take precedence over any work to be performed by Licensee.
Section 7. PROTECTION OF FIBER OPTIC CABLE STEMS.
A. Fiber optic cable systems may be buried on the Licensoes property. Protection of the f iber optic
cable systems is of extreme importance since any break could disrupt service to users resulting in
business interruption and loss of revenue and profits. Licensee shall telephone the Licensor
during normal business hours (7:00 a.m. to 9;00 p.m. Central Time, Monday through Friday,
except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency -calls) to
determine if fiber optic cable is buried anywhere on the Licensee's premises to be used by the
Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved,
arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic
cable, all at Licensee's expense, and will commence no work on the Licensoe's property until all
such protection or relocation has been accomplished. To the extent allowed by law, Licensee
shall indemnify and hold the Licensor harmless from and against all costs, liability and expense
whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of
or caused in anyway by Licensee's failure to comply with the provisions of this paragraph.
B. IN ADDITION TO OTHER INDEMNITY PROVISIONS IN THIS AGREEMENT, TO
THE EXTENT ALLOWED BYLAW, THE LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNITY, DEFEND AND HOLD THE LICENSOR:
HARMLESS FROM AND AGAINST ALL COSTS, LIABILITY AND EXPENSE
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES,
COURT COSTS AND EXPENSES) CAUSED BY . THE NEGLIGENCE OF `THE
LICENSEE, ITS CONTRACTOR, AGENTS AND/OR EMPLOYEES, RESULTING IN (1)
ANY. DAMAGE TO OR DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM
ON LICENSOR'$ PROPERTY, AND/OR .(2) ANY INJURY TO OR DEATH OT ANY
PERSON EMPLOYED BY OR ON BEHALF OF ANY TELECOMMUNICATIONS
INOW COMPANY, AND/OR : ITS CONTRACTOR, AGENTS AND/OR EMPLOYEES, ON
LICENSOR'S PROPERTY, EXCEPT TO THE EXTENT IF SUCH COSTS, LIABILITY
OR EXPENSES ARE CAUSED SOLELY BY THE DIRECT ACTIVE NEGLIGENCE OF
THE LICENSOR. LICENSEE FURTHER AGREES THAT IT SHALL NOT HAVE OR
SEEK RECOURSE AGAINST LICENSOR FOR ANY CLAIM OR CAUSE OF ACTION
FOR ALLEGED LOSS OF PROFITS OR REVENUE .OR LOSS OF. SERVICE OR
OTHER CONSEQUENTIAL DAMAGE TO A TELECOMMUNICATION COMPANY
USING LICENSOR'S PROPERTY OR A CUSTOMER OR USER OF SERVICES OF
THE FIBER OPTIC CABLE ON LICE, NSOR'S PROPERTY.
Section 8. CLAIMS AND LIEN FOR L BOR A ATE, RI AL; TAXES.
A. The Licensee shall fully pay for all materials joined or affixed to and labor performed upon
property of the Licensor in connection with the construction, maintenance, repair, renewal;
modification or reconstruction of the Pipeline, and shall not permit or suffer any mechanic's or
materialman's lien of any kind or nature to be enforced against the property for any work done or
materials furnished thereon at the instance or request or on behalf of the Licensee. To the extent
initial allowed by law, T4te Licensee shall indemnify and hold harmless the Licensor against and from
any and all liens, claims, demands,. costs and expenses of whatsoever nature in any way
connected with or growing out of such work done, labor performed, or materials furnished.
B. The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in
respect to, or on account of the Pipeline, to prevent the some from becoming a charge or Tien upon
property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect
to such property shall not be increased because of the location, construction or maintenance of the
Pipeline or any improvement, appliance or fixture connected therewith placed upon. such.
property, or on account of the Licensee's interest therein. Where such tax; charge or assessment
may not be separately made or assessed to the Licensee but shall be included in the assessment of
the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion
of such taxes determined by the value of the Licensee's property upon property of the. Licensor as
compared with the entire value of such property.
Section 4, RESTORATION Or LICENSORS PROPERTY.
In the event the Licensee in any manner moves or disturbs any of the property of the Licensor in
connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or
removal of the Pipeline, then in that event the. Licensee shall, as soon as possible and at Licensee's sole
expense, restore such property to the same condition as the same were before such property was moved or
disturbed, and to the extent allowed by law, the Licensee shall' indemnify and hold `harmless the Licensor,
its officers,.agents and employees, against and from any and all liability, loss, damages, claims, demands,
costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from
injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever,
when such injury, death, damage, loss or destruction grows out of or arises from the moving.. or
disturbance of any other property of the Licensor.
Section 10. RDEMIXEM.
A. As used in this Section, "Licensor" includes other railroad companies using the Licensors'
property at or near the location of the Licensee's installation and their officers, agents, and
employees; "Loss" includes loss, damage; claims, demands, actions, causes of action, penalties;
costs, and expenses of whatsoever nature, including count costs and attorneys' fees, which may
result from: (a) injury to or death of persons whomsoever (including the Licensoe's officers,
agents, and employees, the Licensee's officers, agents, and employees, as well as Any other
person); and/or (b) damage to or lost or destruction of property whatsoever (including Licensee's
property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property
in its care or custody).
B. AS A MAJOR INDUCEMENT AND IN CONSIDERATION OF THE LICENSE AND
PERMISSION HEREIN GRANTED, TO THE FULLEST EXTENT PERMITTED BY
.
LAW, THE LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO,
RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE LICENSOR FROM
ANY LOSS WHICH IS DUE TO OR ARISES FROM:
1. THE PROSECUTION OF ANY WORK CONTEMPLATED BY THIS AGREEMENT
INCLUDING THE INSTALLATION, CONSTRUCTION, MAINTENANCE, REPAIR;
RENEWAL, MODIFICATION, RECONSTRUCTION, RELOCATION, OR REMOVAL
OF THE PIPELINE OR ANY PART THERE OF;
2. ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE;
3. THE PRESENCE, OPERATION, OR USE OF THE PIPELINE OR CONTENTS
ESCAPING THEREFROM; .
4. THE ENVIRONMENTAL STATUS OF THE PROPERTY CAUSED` BY OR
CONTRIBUTED TO BY LICENSEE;
5. ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S. OFFICE RS, AGENTS,'
INVITEES, EMPLOYEES, OR CONTRACTORS OR ANYONE DIRECTLY OR
INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR
EXERCISE CONTROL OVER; OR
{tea 6. LICENSEE'S BREACH OF THIS AGREEMENT,` EXCEPT TO THE EXTENT
WHERE THE LOSS IS CAUSED BY THE SOLE DIRECT AND ACTIVE NEGLIGENCE
OF THE LICENSOR, AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF
COMPETENT JURISDICTION, IT BEING THE INTENTION OF THE PARTIES THAT
THE ABOVE INDEMNITY WILL OTHERWISE APPLY TO LOSSES CAUSED BY OR
ARISING FROM, IN WHOLE OR IN PART, LICENSER'S NEGLIGENCE.
C. ;
preeeeding bmught against -i td by any ,
and hold.
Initial
~VVV..II//~~ defense, '
limited to, reasenable aiierfty is fees, i;veefigaters' fees, lifigaiien and appeal empeases,
settlement paymenis amid adnetints paid in satisfaefien of judgments.
Section 11. REMOVAL OF PIPELINE, UPON TERMINATION OF AGREEMENT.
Prior to the termination of this .Agreement howsoever, the Licensee shall, at Licensee's sole
expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track
or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such
property to. as good a condition as they were in at the time of the construction of the Pipeline, If the
Licensee fails to do the foregoing, the Licensor may, but :is not obligated, to perform such work of
removal and restoration at the cost and expense of the Licensee. In the event of the removal by the
Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein
provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the
Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or
impair any right of action for damages, or otherwise, that the Licensor may have against the Licensee.
Section 12. WAIVER, QE BREACH.
The waiver by the Licensor of the breach of any condition, covenant or agreement herein
contained to be kept, observed and performed by the Licensee shall. in no way impair the right'of-the
Licensor to avail itself of any remedy for any subsequent breach thereof
Section 13. TER.MINATI
A. If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the ,
Licensee continues in default in the performance of any covenant or agreement herein contained
fora period of thirty (30) days after written notice from the Licensor to the Licensee specifying
such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by
written notice.
B. In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by
written notice given by either party hereto to the other on any date in such notice stated, not less,
however, than thirty (34) days subsequent to the date upon which such notice shall be given.
C. Notice of default and notice of termination may be served personally upon the Licensee or by
mailing to the last known address of the Licensee. Termination of this Agreement for any reason
shall not affect any of the rights or obligations of the parties hereto which may have accrued, or
liabilities, accrued or otherwise, which may have arisen prior thereto.
Section 14. AGREEMENT NOT TO BE ASSIGNED,
The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted,,
without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted .
transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by
operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option
of the Licensor, shall terminate this Agreement.
Section 15. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to
the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns.
Section lb. SEVERABU Y.
Any provision of this Agreement which is determined by a court of competent jurisdiction to be
invalid or unenforceable shall be invalid or unenforceable only to the extent of such determination, which
shall not invalidate or otherwise render ineffective any other provision of this Agreement.
Approved: rusurance Group
Created: 9123/05
Last WNW: 03/29/10
Fonn Approved, AVf •Law
EXHIBIT C
Union Pacific Railroad Company
Contract Insurance Requirements
Licensee shall, at its sole cost and.expense, procure and maintain during the life of this Lease (except as
otherwise provided in this Lease) the following insrnmice coverage which may be self-insurance.
A. Commercial General Liability insurance. Commercial general liability (CGL).with a limit of
not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000. CGL ;
insurance must be written on ISO occurrence form CG 00`01 12 04 (or a substitute form providing'
equivalent coverage).
The policy must also contain the following endorsement, WHICH MUST BE STATED ON-THE
CERTIFICATE OF INSURANCE: "Contractual Liability Railroads" ISO form CG 24 17 10 01 (or a
substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as
the Designated Job Site.
B. :Business Automobile„ Coverage insurance. Business auto coverage written on ISO forth CA 00
01 10 01 (or n substitute form providing equivalent liability coverage) with a limit. of not less $2,000,000
for each accident, and coverage must incl tide I iabi I ity arising out of any auto (including, owned, hired, and
non-owned autos).
The policy must contain the following . endorsements, WHICH. MUST BE STATED ON THE.
CERTIFICATE OF INSURANCE; "Coverage For Certain Operations In Connection With Railroads" ISO
form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific
I Property" as the Designated Job Site.
•
C. Workers Compensation-and Employers Liability insurance. Coverage must include but not be
limited to:
Licensee's statutory liability under the workers' compensation laws of the state(s) affected by this
Agreement.
Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit
$500,000 each employee.
If Licensee is self-Insured, evidence of state approval and excess workers compensation coverage must be
provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers'.,
Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable.
D. niIro d 1? i bi i insurance. Licensee or its contractors must maintain "Railroad
Protective Liability" insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form
providing equivalent coverage) on behalf of Railroad only as named insured, with a limit of not"less than
$2,000,000 per occurrence and an aggregate of $6,000,000
The definition of "JOB LOCATION" and "WORK" on the declaration page of the policy shall refer to
this Agreement and shall describe all WORK or OPERATIONS performed under this agreement
E. Umbrella or Excess insurance. If Licensee utilizes umbrella or excess policies, and these
policies must "follow form" and afford no less coverage than the primary policy.
Other Re ulremen#
E. , All policy(ies).required above (except worker's compensation and employers liability) must
include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA
20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as
additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26,
and CA.20 48 provide coverage for Railroad's negligence whether sole or partial, active or passive, and
shall not be limited by Licensee's liability under the indemnity provisions of this Agreement.
G. Punitive damages exclusion; if any, must be deleted (and the deletion indicated on the certificate
of insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that
may arise tinder this agreement, or (b) all punitive damages are prohibited by all states in which this
agreement will be performed,
A. Licensee. waives all rights of recovery, and its insurers also waive all rights of subrogation of.
damages against Railroad and its agents, officers, directors and employees for damages covered by the.
workers compensation and employers liability or commercial umbrella or excess liability obtained by
Licensee required in this agreement, where permitted by law This waiver must be stated on the certificate
of insurance.
1. Licensee is allowed to retain self-insure in whole or in part any insurance obligation under this
Agreement. Any deductible or retention shall be for the account of Licensee. I r Licensee elects to Ketain
(self-insure} in whole or in part any insurance required by this Agreement Licensee agrees that it shall
provide Railroad with the same coverage that would have been provided to it by the required commercial
insurance forms had customer obtained commercial insurance, subject to all a licable immunities and
protections afforded Licensee b taw, statute or regulation. For all coverage not retained (self
insurer!) Licensee shall rurnish Railroad with a certificate(s) of insurance, executed by a duly authorized
representative of each insurer, showing compliance with the insurance requirements in this Agreement;
which must be written by a reputable insurance company acceptable to Railroad or with. a current Best's
Insurance Guide Rating of A- and Class VII or better, and authorized to do'business in the state(s) in
which this license is granted.
J. The fact that. insurance is obtained by Licensee or by Railroad oil behalf of Licensee will not be
deemed to release or diminish the liability of Licensee, including, without limitation, liability under the..
indemnity provisions of this Agreement. Damages recoverable by Railroad from Licensee or any third
party will not be limited by the amount of the required insurance coverage.
Pipeline Cnming 07n0108
Bum ApixoYrA, AW-Law
EXHIBIT D
SAFETY STANDARDS
MINIMUM SAFETY REQUIREMENTS
The term "employees" as used herein refer to all employees of Licensee or its contractors, subcontractors,
or agents, as well as any subcontractor or agent of any Licensee.
I: Clothing
A. All employees of Licensee will be suitably dressed to perform their duties safely and in a
manner that will not interfere with their vision, hearing, or free use of their hands or feet.
Specifically, Licensee's employees must wear:
(i) Waist-length shirts with sleeves.
(ii) Trousers that cover the entire leg. If flare-legged trousers are worn, the trouser
bottoms must be tied to prevent catching.
(iii) Footwear that covers their ankles and has a defined heel. Employees Working on
bridges are required to wear safety-toed footwear that conforms to the American
National Standards Institute (ANSI) and FRA footwear requirements.
B. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or
other shoes that have thin soles or heels that are higher than normal.
C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose.
jewelry while operating or working on machinery.
II, Personal Protective Equipment
Licensee shall require its employee to wear personal protective equipment as specified by
Railroad rules, regulations, or recommended or requested by the Railroad Representative.
(i) Hard' hat that meets the American National Standard (ANSI) Z89.1 - latest revision.
Hard hats should be affixed with Licensee's company. logo or name.
(ii) Eye protection that meets American. National Standard (ANSI) for occupational and
educational eye and face protection, 287.1 latest revision. Additional eye protection
must be provided to meet specific job situations such as welding, grinding, etc...:
(iii) Hearing protection, which affords enough attenuation to give protection from noise levels
that will be occurring on the job site. Hearing protection, in the form of plugs or muffs;
must be worn when employees are within
■ 100 feet of a locomotive or roadway/work equipment
■ 15 feet of power operated tools
■ 150 feet of jet blowers or pile drivers
■ 150 feet of retarders incase (when within 10 feet, employees must wear decal ear
protection plugs and muffs)
(iv) Other types of personal protective equipment, such as respirators, fall protection
equipment, and face shields, must be worn as recommended or requested by the Railroad
Representative.
.111. On Track Safety
Licensee is responsible for compliance with the Federal Railroad Administration's Roadway`
Worker Protection regulations - 49CFR214, Subpart C. and Railroad's On-Track 'Safety rules.
Under 49CFR214, Subpart C,. railroad contractors are responsible for the training of their
employees on such regulations. In addition to the instructions contained in Roadway Worker
Protection regulations, all employees gust:
(i) Maintain a minimum distance of at least twenty-five (25) feet to any track unless the
Railroad Representative is present to authorize movements,
(ii) Wear an orange, reflectorized work wear approved by the Railroad Representative,
(iii) Participate in a job briefing that will specify the typo of On-Track Safety for the type of .
work being performed. Licensee must take special note of limits of track authority, which
tracks may or may not be fouled, and clearing the track. Licensee will also receive
special instructions relating to the work zone around machines and minimum distances
between machines while working or traveling.
IV. Eauloment
A. It is the responsibility of Licensee to ensure that all equipment is in a safe condition to.
operate. If, in the opinion of the Railroad Representative, any of Licensee's equipment is
unsafe for use, Licensee. shall remove such equipment from Railroad's property. In
addition, Licensee must. ensure that the operators of all equipment are properly trained
and competent in the safe operation of the equipment. In addition, operators must be;
■ familiar and comply with Railroad's rules on lockouthagout of equipment.
■ Trained in and comply with the applicable operating rules if operating any by-rail
equipment on=track.
■ Trained in and comply with the applicable air braise roles if operating any
equipment that moves rail cars or any other rail bound equipment.
B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and
audible back-up warning device..
C. Unless otherwise authorized by the Railroad Representative, all equipment must be
paused a minimum of twenty-five (25) feet from any track. Before leaving any
equipment unattended, the operator must stop the engine and properly secure the
equipment against movement.
D. Cranes must be equipped with three orange comes that will be used to mark the working
area of the crane and the minimum clearances to overhead powerlines.
V. General Safety Requirements
A. Licensee shall ensure that all waste is properly disposed of in accordance with applicable
federal and state regulations.
B. Licensee shall ensure that all employees participate in and comply with a job briefing
conducted by the Railroad Representative, if applicable. During this briefing, the
Railroad Representative will specify safe work procedures, (including On-Track Safety)
and the potential hazards of the job. If any employee has any questions or concerns about
the work, the employee must voice them during the job briefing. Additional job briefings
will be conducted during the work as conditions, work procedures, or personnel change.
C. All track work performed by Licensee meets the minimum safety requirements
established by the Federal. Railroad Administration's Track Safety Standards 49CFR213..
D. All employees comply with the following safety procedures when working around. any
railroad track:
(i) Always be on the alert for moving equipment, Employees most always expect'
movement on any track, at any time, in either direction.
(ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other
track components.
In passing around the ends of standing cars, engines, roadway machines or `mark
equipment, leave at least 20 feet between yourself and the end of the equipment.
Do not go between pieces of equipment of the opening is less than one car length
(50 feet),
(iv) Avoid walking or standing on a track unless so authorized by the employee in
charge.
(v) Before stepping over or crossing tracks, look in both directions first.
(vi) Do not sit on, lie under, or cross between cars except as required in the.
performance of your duties and only when track and equipmenChave been
protected against movement.
E. All employees must comply with all federal and state regulations concerning workplace
safety.
SUBMITTING REQUESTS FOR
RAILROAD PROTECTIVE LIABILITY INSURANCE
($2,000,000 per occurrence/$6,000,000 aggregate)
Application forms for inclusion in Union Pacific Railroad's Blanket Railroad Protective Liability
Insurance Policy may be obtained. by accessing the following website (includes premiums as well):
~vw%v.trprr.con/reus/rrinsure/iusurovr.shtm l
If you have questions regarding railroad protective liability insurance (i.e. premium quotes, application)
please contact the Marsh USA Service Team, Bill Smith or Cindy Long at:
Phone: (800) 729-7001
Fax: (8 16) 5 56-43 62
Email: williant.j.smith a,marsh.cont
Email: cindyIona mmnrsh.com
*PLEASE NOTE- The RPLI application and premium check should be sent directly to Marsh, USA at
the address shown below - do NOT send your check and application via overnight air, as the PA. Box.
will NOT accept overnight deliveries.
If you are in a situation where you require a RUSH, please contact Bill Smith or Cindy Long andahey
will do their best to accommodate your needs. All checks written to Marsh, USA should reference Union
Pacific Railroad in the "Menlo" section of the check.
Send Checks and Applications to the following "NEW" address: .
Marsh USA
NON 8622
PO Box 1450
Minneapolis, .MN 55485-8612
I
EXHIBIT E
CONTRACTOR'S ENDORSEMENT
F l er
NAME:
SENTATIV
PHONENUMBER.
(hereinafter "Contractor") hereby acknowledges that it has received a copy of that certain Pipeline
Crossing Agreement dated 200 ("Agreement"), between UNION PACIFIC
RAILROAD COMPANY, a Delaware corporation ("Licensor"), and
a ("Licensee").
1. As a condition to entering upon Licensors property to perform work pursuant to
said Agreement, Contractor hereby agrees, in consideration for Licensors willingness to include
Licensee's contractors (including Contractor). among the parties authorized to enter Licensors
property under the terms and conditions of the Agreement, for the benefit of Licensor, to comply
with all the terms and provisions of the Agreement applicable to Licensee relating to the work to.
be performed including, without limitation:
obtaining the required RAILROAD Protective Liability Insurance in
accordance with the requirements of Article 5 and Exhibit C to the
Agreement before Contractor enters Licensors property or commences
any work.
- complying with all terms and conditions of Exhibit E of the Agreement,
which include, without limitation, specific provisions on construction
(Section 2); notification/flagging/safety (Section 3); non-interference
with Licensor's operations (Section 6); protection of fiber optic cable
systems (Section 7); claims and liens (Section 8r and restoration
(Section 9).
- complying with the Minimum Safety Requirements in Exhibit D of the
Agreement.
2. Furthermore, Contractor hereby agrees that:
A. Fiber optic cable systems may be buried on the Licensor's property. Protection
of the fiber optic cable systems is of extreme importance since any break could disrupt service to
users resulting in business interruption and loss of revenue and profits. Contractor shall contact
the Licensor during normal business hours (7:00 a.m.. to 9:00 p.m. Central Time, Monday through
Friday, except for holidays) at 1-800-336.9193 (also a 24-hour, ?-day number for emergency
calls) to determine if fiber optic cable is buried anywhere on the Licensors property to be. used by
the Contractor. If it is, Contractor will contact the telecommunications company(ies) involved.,
arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic
cable, all at Contractor's expense, and -svil1 commence no work on the Licensor's property until .
all such protection or relocation has been accomplished.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN ADDITION TO OTHER
INDEMNITY PROVISIONS IN THIS AGREEMENT, THE CONTRACTOR SHALL, AND
SHALL CAUSE ITS SUBCONTRACTORS, AND ITS AND THEIR SUCCESSORS AND
. .
ASSIGNS, TO (1) WAIVE AND RELEASE ALL CLAIMS AGAINST LICENSOR; ITS
AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
INDEPENDENT CONTRACTORS, SUBCONTRACTORS, AGENTS, AND ITS AND THEIR
EMPLOYEES, AND- ITS AND THEIR SUCCESSORS AND ASSIGNS (HEREAFTER
"LICENSOR INDEMNIFIED PARTIES"); AND (2) INDEMNIFY, DEFEND AND HOLD
THE LICENSOR AND LICENSOR INDEMNIFIED PARTIES HARMLESS FROM AND.
AGAINST CLAIMS OR ACTIONS OR CAUSES OF ACTION NOW OR HEREAFTER
ARISING FOR ALL COSTS, LIABILITIES AND EXPENSES WHATSOEVER (INCLUDING},
WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS AND EXPENSES), LOSS
OF PROFITS OR REVENUE OR LOSS OF SERVICE OR OTHER CONSEQUENTIAL
INDIRECT, INCIDENTAL OR SPECIAL. DAMAGES OR LIABILITIES TO ANY
AUTHORIZED PERSONS OR ENTITIES USING LICENSOWS PROPERTY, INCLUDING
WITHOUT LIMITATION THOSE CAUSED BY THE NEGLIGENCE OF THE
CONTRACTOR, ITS SUBCONTRACTORS, AGENTS AND/OR EMPLOYEES, RESULTING
IN (A) ANY DAMAGE TO OR. DESTRUCTION OF ANY PROPERTY (INCLUDING
WITHOUT LIMITATION ANY TELECOMMUNICATIONS SYSTEM ON LICENSOWS
PROPERTY), (B) ANY ALLEGED LOSS OF. PROFITS OR REVENUE OR LOSS .OF
SERVICE OR OTHER INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OR OTHER'
CERTAIN CONSEQUENTIAL DAMAGES OR LIABILITIES TO ANY PERSON OR PARTY
(INCLUDING WITHOUT LIMITATION A TELECOMMUNICATIONS COMPANY USING
LICENSOR'S PROPERTY) OR TO A CUSTOMER OR END USER OF SERVICES OF THE
FIBER OPTIC CABLE ON LICENSOR'S PROPERTY, AND/OR (C) ANY. INJURY TO "OR
DEATH OF ANY PERSON EMPLOYED BY OR ON BE14ALF OF ANY PERSON. OR
PARTY (INCLUDING, WITHOUT LIMITATION, ANY TELECOMMUNICATIONS
COMPANY, AND/OR ITS CONTRACTORS, SUBCONTRACTORS, AGENTS AND/OR
EMPLOYEES, ON LICENSORS PROPERTY), EXCEPT TO THE EXTENT SUCH COSTS,
LIABILITY OR EXPENSES ARE.CAUSED BY. EITHER THE DIRECT AND ACTIVE
NEGLIGENCE, OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
LICENSOR, AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT
JURISDICTION. THE DIRECT AND ACTIVE NEGLIGENCE OR GROSS NEGLIGENCE
OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANOTHER
INDEMNIFIED PARTY.
B. In addition to and -without limiting other rights or remedies of Licensor under this
Agreement or under applicable law, for purposes of this Section B:
I. "Licensor" means each and all of Licensor and its affiliates and any other railroad
companies using the Licensee's property at or near the location of the Licensee's
installation and each of its and their directors, officers, employees, independent
contractors, subcontractors, agents, partners; joint venturers, and its and their
successors and assigns; and
2. "Loss" includes claims, demands, suits, actions, causes of action, whether or not
involving a third party claim, penalties, cost's, and expenses of whatsoever nature,
including court costs and attorneys' fees, which may result from: (a) injury to or
death of persons whomsoever (including the Licensors directors, officers,
employees, independent contractors, agents; partners, joint venturers, and its and
their successors and assigns, the Contractor's.directors, officers, agents and
employees as well as any other person); and/or (b) damage to or loss or
destruction of property whatsoever (including Contractor's property, darnage to
the roadbed, tracks, equipment, or other property of the Licensor, or property in..
its care or custody).
TO THE FULLEST EXTENT PERMITTED BY. LAW, THE CONTRACTOR SHALL, AND
SHALL. CAUSE ITS SUBCONTRACTORS TO, 'WANE AND RELEASE, INDEMNIFY,
DEFEND AND HOLD HARMLESS THE LICENSOR AND LICENSOWS INDEMNIFIED
PARTIES FROM AND AGAINST ANY LOSS WHICH IS DUE TO OR ARISES FROM:
a) THE PERFORMANCE OF OR ANY FAILURE TO PERFORM ANY WORK
CONTEMPLATED BY THIS AGREEMENT BY CONTRACTOR OR ITS
SUBCONTRACTORS, INCLUDING BUT NOT LIMITED TO THE
INSTALLATION, CONSTRUCTION, MAINTENANCE, REPAIR, -
RENEWAL, MODIFICATION, RECONSTRUCTION, RELOCATION, OR
REMOVAL OF THE WIRELIKE OR ANY PART.THEREOF;
b) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THE LICENSE;
c) THE PRESENCE, OPERATION, OR USE OF THE WIRELINE OR
ELECTRICAL INTERFERENCE OR OTHER TYPES OF INTERFERENCE
CREATED OR CAUSED BY THE WIRELINE OR ESCAPING FROM THE.
WIRELINE;
d) THE ENVIRONMENTAL STATUS OR CONDITION OF THE PROPERTY
CAUSED BY OR CONTRIBUTED TO BY CONTRACTOR OR ITS
SUBCONTRACTORS;
e) THE MOVING OR DISTURBANCE BY THE CONTRACTOR OR ITS
SUBCONTRACTORS OF ANY PROPERTY OF LICENSOR OR OTHER
AUTHORIZED PERSONS OR PARTIES ON LICENSOR'S PROPERTY
WHETHER OR NOT PERMITTED UNDER THE TERMS OF THIS
AGREEMENT;
t) ANY ACT OR OMISSION OF CONTRACTOR OR CONTRACTOR'S
DIRECTORS, OFFICERS, SUBCONTRACTORS OR ITS OR THEIR
EMPLOYEES OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY
ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL
OVER; OR
g) THE ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT BY
CONTRACTOR AND ITS SUBCONTRACTORS,
1
EXCEPT TO THE EXTENT THE LOSS. IS CAUSED BY EITHER THE DIRECT AND
ACTIVE NEGLIGENCE OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
LICENSOR, AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT
JURISDICTION.
Upon written notice from Licensor, Contractor agrees to. assume the defense of any lawsuit or
proceeding brought against Licensor or any of Licensor's Indemnified Patties by any entity,
rolating to any matter covered by this License for which Licensee has an obligation to assume
liability for and/or save and hold harmless any indemnitee, provided, however, that with respect
to any indemnity for the benefit of Licensor hereunder '(I.) Licensor or any of Licensor's
Indemnified Parties at its option may participate and appear in the defense of any such claim, and
.(2) Licensor or any of Licensor's Indemnified Parties may undertake control of such defense in
the event of a material failure of Licensee to undertake the seine. Contractor shall pay all costs
incident to such defense, including; but not limited to, reasonable attorney's fees, investigators'
fees, litigation and appeal expenses, settlement payments and amounts paid in satisfaction of
,judgments. Contractor shall not concede or settle any claim without the prior written approval. of
Licensor or any of Licensor's Indemnified Parties.
C. THE RIGHT TO INDEMNITY UNDER THIS SECTION 2 SHALL ACCRUE
UPON OCCURRENCE OF THE EVENT GIVING RISE TO THE LOSS, AND SHALL APPLY
REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNIFIED
PARTY, EXCEPT WHERE THE LOSS IS CAUSED : BY THE DIRECT AND ACTIVE
NEGLIGENCE OR GROSS NEGLIGENCE OR WH1;UL MISCONDUCT OF LICENSOR AS -
ESTABLISHED BY THE FINAL JUDGMENT OF A COURT OF. COMPETENT.
JURISDICTION. THE DIRECT AND ACTIVE NEGLIGENCE OR GROSS NEGLIGENCE
OR WILFUL MISCONDUCT OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE
RECOVERY OF ANY OTHER INDEMNIFIED PARTY.
D. CONTRACTOR EXPRESSLY AND SPECIFICALLY . ASSUMES
POTENTIAL LIABILITY UNDER THIS SECTION 2 FOR CLAIMS OR ACTIONS
BROUGHT BY CONTRACTOR'S OWN EMPLOYEES. CONTRACTOR WAIVES ANY
IMMUNITY IT MAY HAVE UNDER WORKER'S COMPENSATION OR INDUSTRIAL
INSURANCE ACTS TO INDEMNIFY LICENSOR UNDER THIS SECTION 2..
CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER WAS MUTUALLY
NEGOTIATED BY THE PARTIES HERETO.
E. NO COURT OR JURY FINDINGS IN ANY EMPLOYEE`S. SUIT PURSUANT
TO ANY WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS
LIABILITY ACT MAY BE RELIED UPON OR USED BY CONTRACTOR IN ANY
ATTEMPT TO ASSERT LIABILITY AGAINST LICENSOR.
F. THE PROVISIONS OF THIS SECTION 2 SHALL SURVIVE. THE
COMPLETION OF ANY WORK PERFORMED BY CONTRACTOR IN NO EVENT SHALL'.
THIS SECTION 2 OR ANY OTHER PROVISION OF THE HERETORI<ORE REFERENCED
AGREEMENT BE DEEMED TO LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO
ANY INDEMNIFIED PARTY BY STATUTE OR UNDER COMMON LAW.
Ia rvitness whereof, tha undersigned Contractor has executed f#iis Endarsement as af this
day of , 240-. .
(Please print Contractor's Nama above)
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PIPELINE CROSSING AGREEMENT
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DRAFT MINUTES
PUBLIC UTILITIES BOARD
May 23, 2011
After determining that a quorum of the Public Utilities Board of the City of Denton, Texas is
present, the Chair of the Public Utilities Board will thereafter convene into an open meeting on
Monday, May 23, 2011 at 9:00 a.m. in the Service Center Training Room, City of Denton
Service Center, 901-A Texas Street, Denton, Texas.
Present: Chair Dick Smith, Vice Chair Bill Cheek, Phil Gallivan, Barbara Russell, Bill
Grubbs and Randy Robinson (departed at 10:00)
Absent: John Baines
Ex Officio Member:
George Campbell, City Manager
Howard Martin, ACM Utilities
OPEN MEETING:
2) Consider a recommendation of an adoption of an ordinance authorizing the City Manager of
the City of Denton, Texas, or his designee, to execute for and on behalf of the City a Pipeline
Crossing Agreement, by and between the City of Denton, Texas, and the Union Pacific
Railroad Company, relating to the constriction, maintenance and operation of a sanitary
sewer pipeline within the railroad right-of-way, located immediately north of said railroad
right-of-way's intersection with McKinney Street at Mile Post: 718.95, Choctaw Subdivision
within the Buffalo Bayou, Brazos and Colorado Railroad Company Survey, Abstract Number
185, City and County of Denton, Texas; authorizing the expenditure of funds therefor; and
providing an Effective Date.
Howard Martin, ACM Utilities, clarified the backup regarding the fee associated with the
pipeline railroad crossing agreement. The Agenda Information Sheet states that the fee is $9,100
and it should be $9,600.
Board Member Cheek moved to approve item 2 with a second from Board Member
Russell. The motion was approved by a 6-0 vote.
Adjourned at 11:30am
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: City Manager's Office
CM: George Campbell, City Manager
SUBJECT
Consider appointments to Council committees.
BACKGROUND
Council discussed appointments to Council committees during the Work Session on June 21,
2011. Attached is the revised list of assignments for Council consideration.
If you require any further information, please let me know.
Respectfully submitted:
Jennifer Walters
City Secretary
S:ACitN- Secretan-Toards & Comm\AIS for Council Committees-IC.doc
COUNCIL COMMITTEE ASSIGNMENTS
201 1-2012
COMMITTEE
MEMBERS
Agenda
Burroughs`
Kamp
Airport Committee
Engelbrecht`
Kamp
Watts
Audit/Finance
King
Watts`
Roden
Council Appointee Performance Review
Engelbrecht`
Kamp
Burroughs
Mobility
Kamp`
Burroughs
Gregory
Environment
Watts
Kamp`
Gregory
Ethics
Engelbrecht
Roden
Gregory
Hotel Occupancy Tax
Gregory
Watts
Kamp`
EXTE
RNAL
Community Justice
Roden
Convention and Visitors Bureau
Kamp
Roden
Kin
Dallas Regional Mobility Coalition
Kamp
Lake Ray Roberts P&Z
Engelbrecht
North Texas Commission
Burroughs
Regional Transportation Council
Kamp
Texas Municipal Power Agency
Watts
AD
HOC
Development Code Review
King
Burroughs
Engelbrecht
Property Maintenance Code Committee
Engelbrecht
Watts`
King
Revised 6/29/11
CITY OF DENTON CITY COUNCIL MINUTES
June 7, 2011
After determining that a quorum was present, the City Council convened in a Work Session on
Tuesday, June 7, 2011 at 2:30 p.m. in the Council Work Session Room at City Hall.
PRESENT: Council Member King, Council Member Watts, Council Member Gregory,
Council Member Engelbrecht, Council Member Roden, Mayor Pro Tem Kamp,
and Mayor Burroughs.
ABSENT: None
Citizen Comments on Consent Agenda Items
Cathy McMullen spoke on Consent Agenda Item 4N, the gas well fees. She knew that the fee
stricture had been sent to a consulting company for suggestions. She reviewed the fees from
Fort Worth, Arlington, and Hurst and noted that Denton's fees were lower than area cities.
Currently there was no fee scheduled for watershed protection and if there was not going to be a
fee for that then drilling should not be allowed in the watershed or floodplain.
2. Requests for clarification of agenda items listed on the agenda for June 7, 2011.
Council Member Watts indicated that he would be pulling Consent Agenda Item 4N for separate
consideration.
Council Member Gregory asked about Consent Agenda Item 4H, noting that there was a lengthy
debate at the Public Utilities Board meeting regarding the purchase of a hybrid SUV as opposed
to a non-hybrid. He asked if there was an analysis done on the extra cost versus what was
anticipated savings.
City Manager Campbell stated that there were a number of different issues involved in
evaluating the hybrid, one of them being how the vehicle was going to be used. Because the use
would be a city-type use on the low end of mileage, it was determined that payback would be
much better in a four-five year period as opposed to a ten-fifteen year period for non-hybrid
vehicle. Because the payback would be quicker based on the use of the vehicle and the operating
costs would be less, it was determined that the hybrid would be a good purchase.
Mayor Burroughs asked about Consent Agenda Item 4G and whether buying local with a local
discount was considered.
Elton Brock, Purchasing Manager, stated that staff took very seriously the policy to buy local
and were working on a policy to ensure those procedures would be in place.
Council Member Watts asked about Consent Agenda Item 41 relative to future renewal of the
contracts. Some contracts were renewed by the City Manager and some by Council. He asked if
there was a policy on which ones fell into which categories.
Bryan Langley, Chief Financial Officer, stated that some contracts were being administratively
renewed if they were ministerial in function. This contract was one of those but could be
approved by Council if Council desired.
City of Denton City Council Minutes
June 7, 2011
Page 2
Council Member Watts asked about the contract price for 2012. If there was no price indicated,
he would prefer that it came back to Council.
Langley stated that the price was based on the consumer price index as noted in Section 7A.
3. Receive a report and hold a discussion concerning the status of the Denton County
Transportation Authority's A-train project and the proposed ribbon cutting events for the
A-train stations and Downtown Denton Transit Center.
Dee Leggett, DCTA, presented the information on the progress of the A-train. The project
components consisted of (1) light rail new technology vehicles, (2) a 21-mile corridor, (3)
expanded hike and bike trails, (4) a Loop 288 overpass, (5) a rail operations and maintenance
facility and (6) five stations. She reviewed the A-train constriction progress and indicated that
first responder training would be completed this week. Over 500 responders had been trained for
the corridor. The A-Train vehicle procurement was discussed. The service would open with an
interim vehicle. The new generation vehicle was currently in production. A base waiver to
operate with temporal separation of freight service had been approved by the FRA.
Mark Nelson, Director of Transportation, presented information concerning the Hickory Street
Sidewalk Enhancements. He demonstrated the median barriers, tree wells, and sidewalk
enhancements.
Council Member Roden asked for a time line when the sidewalks would be constricted.
Nelson stated that it was 30% designed at this point. Staff was looking to bid the project in late
summer and constriction in October. The project should be completed by the end of the year.
Mayor Burroughs noted that the median designs were part of what was suggested for the quiet
zones and asked about the constriction schedule on the impact of the quite zones.
Nelson stated that the design was being done now to have in place with the quiet zones.
Council Member Gregory noted that the buses would be crossing the tracks at Sycamore which
was a very hard crossing. He asked where in the discussions were they on making it a better
crossing.
Nelson stated that DCTA was working with staff on how to correct the intersection.
Leggett continued that the Robertson Street realignment had been completed. The community
seemed pleased with the design. DCTA had added additional fencing to address safety concerns.
Staff was assisting the residents with the address change. She continued with a review of the
Positive Train Control.
Council Member Roden asked about the placement of the fencing.
Leggett stated that it was along Robertson between the Fred Moore School and the corridor.
Additional fencing was added between Robertson and the culvert by the bridge. She continued
City of Denton City Council Minutes
June 7, 2011
Page 3
with the A-Train service launch and opening events, the operational schedule, and the A-Train
fare schedule.
Mayor Burroughs asked what was the current financial outlook for DCTA and if there was a
deviation from the budget.
Jim Witt, DCTA, stated that they were in better shape than anticipated. Ridership was very
important to meet goals.
Council Member Engelbrecht asked when the trains would go silent.
Leggett stated that they were near final completion and after June 16th DCTA would stop
routinely blowing horns. The Shady Shores crossing and Corinth applications were not
completed yet so the horns would continue to blow at those intersections until the process was
completed.
4. Receive a report, hold a discussion and give staff direction on the FY 2011-12 Proposed
Budget, Capital Improvement Program, and Five Year Financial Forecast.
Bryan Langley, chief Financial Officer, presented the preliminary look at the FY 2011-12
proposed budget and five year financial forecast.
The Overview and Purpose of the presentation was to (1) examine municipal budgeting concepts,
(2) review adopted 2010-11 long-term financial plan and key assumptions, (3) discuss key
aspects of the General Fund budget, (4) review the preliminary 2011-12 Five Year Financial
forecast for the General Fund, (5) discuss strategic considerations in the development of the
upcoming budget (6) review preliminary GO debt service, utility fund budgets, and other key
information and (7) outline next steps.
Municipal Budgeting Concepts - Fund accounting concept was a key to understanding municipal
budgets. Each fund had unique cost drivers and revenue stream. Policies and strategic priorities
should drive the formulation of budgets. Multi-year financial plans should be developed so that
decision makers understood long-term impact of choices.
Summary of Adopted Assumptions for 2010-11 - the 2010-11 budget assumptions in terms of
appraised value growth, sales tax growth, compensation, tax rate and future bond sales was
reviewed. The adopted 2010-11 General Fund long term plan assumed a 2% decline in ad
valorem tax in 2012; a 3% growth in 2013; and a 4% in each year after. This included a 1 cent
tax increase in 2014-15.
The General Fund would be discussed in terms of (1) fund balance, (2) revenue characteristics,
(3) sales tax, (4) appraised value, and (5) other key revenues.
Fund Balance Reserves - the beginning fund balance level was approximately $2.6 million more
than previously forecasted in the 2010-11 budget. It was expected to remain above the target
level over the planning horizon.
City of Denton City Council Minutes
June 7, 2011
Page 4
General Fund Revenue Components included (1) ad valorem taxes, (2) sales taxes, (3) franchise
fees, (4) transfers, (5) service fees, (6) fines and fees and (7) other. Approximately 85% of the
revenue was in the top four categories. The changes in sales tax collections were reviewed. The
current estimate for 2010-11 was $22.478 million. That equated to $0.9 million or 3.96% above
the budgeted amount of $21.6 million and $1.5 million or 6.96% above 2009-10 of $21 million.
Sales tax projections - to provide a clearer picture of the cost and benefits of sales tax rebate
agreements, incentives were now included in the expenditure budget. Economic Development
Incentive Agreements previously netted from revenue was shown. A 2% increase in "base" sales
tax revenue was forecasted for 2011-12.
Appraised values - using the average experience as a guide, the 2011 appraised values would fall
8.63% to $6.424 billion. A 2% decline was forecasted for financial planning purposes.
Mayor Burroughs suggested at some point to look at the trend of protests and see how those were
being resolved. The updated appraised value growth estimates assumed a moderate economic
recovery.
Langley continued with a discussion of appraised values. The preliminary Appraisal District
information indicated most properties would not increase in value in Denton County. The future
appraised value growth estimates assumed a moderate economic recovery. He reviewed the
appraised value distribution and appraised value history.
Property tax rate - the property tax rate was comprised of two components - operations and
maintenance and GO debt service. Operations and maintenance funds were deposited into the
General Fund. The GO Debt Service funds were deposited into the GO debt service fund. The
2011 total tax rate per $100 of valuation was $0.68975. There was no proposed increase tax rate
for 2011-12 but staff would seek the effective tax rate which was the tax rate that yielded the
same amount of revenue as last year.
Other Key Revenues - Franchise fees were expected to increase by approximately $587K
compared to 2011. Pending bills in the Legislature that may affect revenue included mixed
beverage taxes which could be reduced by 20%; ambulance fees that may be reduced due to
Medicaid changes; and Library support at $45K per year. Interest income was expected to
remain extremely low due to unusually low interest rates.
General Fund expenditures were discussed in terms of (1) expenditure characteristics, (2) cost
containment characteristics; (3) cost containment strategy/reductions, (4) compensation plan and
(5) preliminary FY 2011-12 General Fund Five Year Forecast. General Fund expenditure
components were presented along with General Fund budget by department.
Prior reductions - in 2009-10 approximately $1.2 million in reductions were included in the
adopted budget. The FY 2010-11 General Fund budget included approximately $5. 2 million in
reductions compared to initial forecasts.
Vacancy Management Plan - no layoffs were included in the Vacancy Management Plan but the
equivalent of 22 positions was not filled in FY 2010-11. The Vacancy Management Program
City of Denton City Council Minutes
June 7, 2011
Page 5
sought to achieve at least $1.45 million in savings. Savings were achieved by not filling
approximately 22 positions. While a specific group of vacant positions was initially targeted, the
purpose of the Plan was to manage to a total savings amount rather than a set of positions.
City Manager Campbell stated that staff was looking in the future to keep those positions.
Council Member Gregory asked to see an update list of where the vacancies were.
Cost Containment Strategy - Langley stated that for FY 2011-12 the intent was to maintain
previous reductions made in FY 2010-11 and FY 2009-10. Additional efficiencies and cost
reductions would also be explored and were not expected to be as significant as prior years.
Efficiency Team - In FY 2009-10, the Team was created to identify savings accounts across
multiple departments and functional areas. Approximately 45 potential topics were considered
by the Team. As a result, a second phase of this project was warranted with the intent to create a
permanent emphasis on efficiency and business process review. Staff did not anticipate
achieving a cost savings similar to Phase L Examples of Phase 11 projects may include the use of
equipment pools/reductions in the number of vehicles, full cost recovery fee analysis, reduction
in work week/closure of facilities, continued review of departmental budgets, and analysis of
delinquent accounts.
Compensation - FY 2009-10 included a one-time lump sum payment equivalent to 2% of pay.
The FY 2010-11 did not include any merit increases but 2% was forecasted for each subsequent
year. For FY 2011-12, a 2% merit increase was planned but was still being evaluated.
Mayor Burroughs asked for a separate demonstration that showed retirements and how that
charted out.
Langley stated that there were no costs in the General Fund for retirees except for the pension
rate.
General Fund Supplemental Packages - Over $4 million were submitted to the City Manager for
consideration in the General Fund. This amount excluded additional street maintenance funding.
Over the coming weeks, the City Management Team would review these requests and make
funding recommendations. Only $0.5 million was expected to be allocated each year for
supplemental packages in the five- year financial forecast.
The preliminary FY 2011-12 General Fund Long Term Plan was presented. Version A proposed
no reductions restored, maintained vacancies, and had no increase in street funding.
Strategic considerations discussed included (1) a review of the Strategic Plan, (2) a discussion of
key focus areas, (3) and the alignment of budget development with strategic plan objectives.
Strategic Plan Review - Council approved the Strategic Plan on April 5th. It defined who we
are, where we wanted to go, and how we planned to get there. It was intended to focus and
enhance the budget process; ensure policy and administrative decision-making based on a
proactive approach; create stability for community and organization; incorporate citizen
City of Denton City Council Minutes
June 7, 2011
Page 6
feedback; and link organizational direction to the City's established vision, mission and values.
Key focus areas included (1) organizational excellence, (2) public infrastructure, (3) sustainable
economic development and environmental stewardship, (4) safe, livable and family friendly
community, and (5) partnerships and regional leadership. The Key focus areas and goals were
reviewed.
Street Maintenance would be discussed in terms of street maintenance funding challenges, a
proposed funding solution and revised General Fund long term plans.
Street Maintenance Funding - during the Council Planning Session the issues of the OCI
(quality) rating, current level of street maintenance funding and long-term strategy was
discussed.
Street Maintenance proposal - it was proposed to create a standalone street maintenance fund
that would be separate and distinct from the General Fund. Additional street maintenance
activities would be funded through the transfer of future increases in the Franchise Fee revenue
compared to 2010-11 and the transfer of interest cost savings from Utility funds as a result of the
issuance of Certificates of Obligation instead of Utility System Revenue bonds.
Council Member Engelbrecht asked about the possibility of backing into current franchise fees
slowly to take up the slack.
Langley stated that they had looked into that but it was extremely difficult.
Funding Justification - franchise fees may appropriately be used for right-of-way acquisition,
right-of-way maintenance and the use of streets in a public right-of-way. As a result of the
issuance of Certificates of Obligation in lieu of Revenue Bonds, the interest cost savings would
be generated in the Utility Funds. Interest cost savings were proposed to be transferred from the
Utility funds to the newly created Street Maintenance Fund.
Possible Increases in Funding - Street Maintenance - Version B - the bond sale savings over the
years from 2010-2016 were reviewed. It was noted that 25%, 50% and 75% of the franchise fee
growth over FY 2010-11 would be allocated for FY 2012, 2013 and 2014 respectively. Each
subsequent fiscal year assumed 100% of growth. This was a phased-in approach.
Preliminary 2011-12 General Fund long Term Plan Version B included no reductions restored,
maintained vacancies, and increase in street funding. This version would add an additional street
maintenance line in the budget.
Possible Increases in Funding Version C would include 100% of the franchise fee growth over
FY 2010-11 allocated to each year. With that version, the preliminary 2011-12 General Fund
Long Term Plan Version C included no reductions restored, maintained vacancies, and increase
in street funding.
Mayor Burroughs announced that the Council would be going into Closed Session and would
complete the Work Session items after the completion of the Regular Meeting.
City of Denton City Council Minutes
June 7, 2011
Page 7
Council convened into Closed Session to discuss the following:
1. Closed Meeting:
A. Certain Public Power Utilities: Competitive Matters - Under Texas Government
Code Section 551.086.
1. Receive a presentation, a status report thereon, and discuss, deliberate,
consider and take action regarding public power competitive and financial
issues and matters regarding the following:
a. the recent TMPA implementation of scrubber operations, and
b. the February 2, 2011 electrical power outage and the TMPA staff
response thereto, and
c. the Texas Municipal Power Association (TMPA) financial forecast
and the impact thereof on Denton Municipal Electric reserve
funds, and
d. the effect of increasing transportation costs of Wyoming coal on
TMPA fuel costs and alternatives.
B. Consultation with Attorneys - Under Texas Government Code Section 551.071.
1. Consult with, and provide direction to, City's attorneys on legal issues
associated with existing and potential regulation of gas well drilling and
exploration within the Denton city limits and extraterritorial jurisdiction,
including legal issues and strategies associated with the imposition,
calculation and assessment of various local permitting and inspection fees
as they relate to gas well drilling and production in the Denton city limits
and extraterritorial jurisdiction.
Council convened into a Regular Session at 6:30 p.m. in the Council Chambers.
1. PLEDGE OF ALLEGIANCE
The Council and members of the audience recited the Pledge of Allegiance to the U. S. and
Texas flags.
2. OATH OF OFFICE
A. Oath of Office - District 3
Mayor Burroughs presented Jim Engelbrecht with a Certificate of Election.
City of Denton City Council Minutes
June 7, 2011
Page 8
City Secretary Walters administered the Oath of Office to Jim Engelbrecht, District Three.
3. PROCLAMATIONS/PRESENTATIONS
A. Proclamations/Awards
1. Presentation of the "Patriotic Employer" award to Lisa Manning by Leon
Tribble representing the Employer Support of the Guard and Reserve.
Mr. Tribble presented the Patriotic Employer Award to Lisa Manning and the City of Denton.
4. CONSENT AGENDA
Mayor Burroughs noted that Item P had been pulled by staff from consideration and that Item N
would be pulled for separate consideration.
Council Member Gregory motioned, Council Member King seconded to approve the Consent
agenda and accompanying ordinances and resolutions with the exception Items N and P. On roll
call vote, Council Member King "aye", Council Member Watts "aye", Council Member Roden
"aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro Tem
Kamp "aye", and Mayor Burroughs "aye". Motion carried unanimously.
Ordinance No. 2011-091
A. Consider adoption of an ordinance of the City of Denton, Texas approving a Settlement
Agreement between the Alliance of Oncor Cities ("AOC") and Oncor Electric Delivery
Company LLC ("Oncor" or "Company") regarding the company's statement of intent to
change electric rates in all cities exercising original jurisdiction; declaring existing rates
to be unreasonable; adopting tariffs that reflect rate adjustments consistent with the
settlement agreement and finding the rates to be set by the attached tariffs to be just and
reasonable; finding the city's rate case expenses reasonable; directing Oncor to reimburse
the City its reasonable rate case expenses; determining that this ordinance was passed in
accordance with the requirements of the Texas Open Meeting Act; repealing any prior
ordinances inconsistent with this ordinance and requiring delivery of this ordinance to
the company and legal counsel and providing an effective date.
Ordinance No. 2011-092
B. Consider adoption of an ordinance of the City of Denton, Texas, approving the 2012
Budget of the Denton Central Appraisal District, and providing an effective date.
Approved the Noise Exception listed below.
C. Consider a request for an exception to the Noise Ordinance for the purpose of performing
live music during Kodifest 2011, a fundraiser held at the North Texas State Fairground
on Saturday, June 18, 2011. The concerts will begin at 2:00 p.m. and conclude at 11:00
p.m. This request is for an exception to the sound ordinance for amplified sound past
10:00 p.m. Staff recommends approving the noise exception request.
City of Denton City Council Minutes
June 7, 2011
Page 9
Approved the Noise Exception listed below.
D. Consider a request for an exception to the Noise Ordinance for the purpose of playing
music and operating a public address system during the Juneteenth Celebration. The
event will be located in the Fred Moore Park on Friday, June 17, 2011, from 5:00 p.m. to
11:00 p.m., and on Saturday, June 18, 2011, from 10:00 a.m. to midnight. This request is
for an exception to the hours of operation and for an increase in sound decibels from 70
to 75 decibels for the amplified sound. Staff recommends approving the requests.
Ordinance No. 2011-093
E. Consider adoption of an ordinance on second reading to voluntarily annex approximately
1.148 acres of land located within the city's Extraterritorial Jurisdiction (ETJ) in
accordance with Chapter 43 of the Texas Local Government Code. The site is located on
the west side of Country Club Road; just north of the Education Center at Denton;
between Ryan Road to the north and Brush Creek Road to the south. The Planning and
Zoning Commission recommends approval (5-0). (All-0001, Burch Property
Annexation)
Resolution No. R2011-015
F. Consider approval of a resolution by the City of Denton, Texas, authorizing the City
Manager to sign and submit to the Department of Housing and Urban Development a
2011 Action Plan for Housing and Community Development with appropriate
certifications, as authorized and required by the Housing and Community Development
Act of 1974, as amended, and the National Affordable Housing Act of 1990, as
amended; and providing for an effective date.
Ordinance No. 2011-094
G. Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal
Cooperative Purchasing Program Agreement with the National Intergovernmental
Purchasing Alliance Company (National IPA) under Section 271.102 of the Local
Government Code, to authorize participation in various National IPA contracts for the
purchase of various goods and services; authorizing the expenditure of funds therefor;
and declaring an effective date (File 4730-Interlocal Agreement with the National
Intergovernmental Purchasing Alliance Company).
Ordinance No. 2011-095
H. Consider adoption of an ordinance of the City of Denton authorizing the City Manager or
his designee to execute a purchase order through the Houston Galveston Area Council of
Governments and Buy Board Cooperative Purchasing Network for the acquisition of five
vehicles and/or equipment items for various City of Denton Departments by way of
Interlocal Agreements with the City of Denton; and providing an effective date (File
4725-Purchase of Vehicles and Equipment for City of Denton awarded to multiple
vendors in the amount of $272,019). The Public Utilities Board recommends approval
(5-0).
Ordinance No. 2011-096
L Consider adoption of an ordinance of the City Council of the City of Denton, Texas,
authorizing the City Manager or his designee to execute a First Amendment to a
City of Denton City Council Minutes
June 7, 2011
Page 10
Professional Services Agreement for Audit Services with Weaver and Tidwell, LLP;
authorizing the expenditure of funds therefor; and providing an effective date.
Ordinance No. 2011-097
J. Consider adoption of an ordinance authorizing the City Manager to approve a Third
Amendment to an Airport Lease dated September 15, 1987 as amended by Ordinance
2010-297 dated September 7, 2010 and by Ordinance 2011-035 dated March 1, 2011
between the City of Denton, Texas and First Financial Resources, Inc. at the Denton
Municipal Airport; and providing an effective date. The City Council Airport
Committee recommends approval (3-0).
Ordinance No. 2011-098
K. Consider adoption of an ordinance of the City of Denton, Texas, providing for (I) a
change in the name of Wye Street to "Robertson Street", from the intersection of Wye
Street and Robertson Street to the intersection of Wye Street and Mill Street; and (I1)
providing for a change in the name of Robertson Street to "Jackson Street", from the
intersection of Robertson Street and Jackson Street to the intersection of Robertson Street
and Morse Street, all as more specifically provided in Exhibit "A", attached thereto;
providing for severability and an effective date.
Ordinance No. 2011-099
L. Consider adoption of an ordinance of the City of Denton, Texas, authorizing the
execution of a First Amendment to Right of Entry and Possession ("Amendment"), by
and between the City of Denton, Texas and the Denton County Transportation Authority
("DCTA"), amending that certain Right of Entry and Possession (the "Original Right of
Entry"), by and between the City of Denton and DCTA, dated May 3, 2011, said
Amendment providing the right to DCTA to allow retail sales at the Downtown Denton
Transit Center ("DDTC"), the DDTC located in the Hiram Sisco Survey, Abstract
Number 1184; and providing an effective date.
Approved the minutes listed below.
M. Consider approval of the minutes of:
April 12, 2011
April 19, 2011
May 3, 2011
May 10, 2011
Resolution No. 2011-016
0. Consider approval of a resolution by the City of Denton requesting the Texas
Commission on Environmental Quality to consider implementing control measures for
emissions of volatile organic compounds ("VOCs") from development of the Barnett
Shale resources as a part of the rate of further progress goals for the 2012 State
Implementation Plan for ozone.
This item was not considered.
P. Consider adoption of an ordinance authorizing the City Manager of the City of Denton,
Texas or his designee, to execute for and on behalf of the City a pipeline crossing
City of Denton City Council Minutes
June 7, 2011
Page 11
agreement, by and between the City of Denton, Texas, and the Union Pacific Railroad
Company, relating to the constriction, maintenance and operation of a sanitary sewer
pipeline within the railroad right-of-way, located immediately north of said railroad
right-of-way's intersection with McKinney Street at Mile Post: 718.95, Choctaw
Subdivision within the Buffalo Bayou, Brazos and Colorado Railroad Company Survey,
Abstract Number 185, City and County of Denton, Texas; authorizing the expenditure of
funds therefor; and providing an effective date.
Resolution No. R2011-017
Q. Consider approval of a resolution of the City Council of the City of Denton, Texas,
appointing a Member and a First Alternate to the Board of Directors of the Denton
County Transportation Authority; providing a repealer; and providing an effective date.
Approved the Noise Exception listed below.
R. Consider a request for an exception to the Noise Ordinance for the purpose of performing
live jazz music at the Sweet Y Cafe, located at 511 Robertson Street, on Friday and
Saturday, June 17 and 18, 2011, beginning at 7:30 p.m. and concluding at 11:30 p.m.
This request is for an extension of hours from 10:00 p.m. to 11:30 p.m. for amplified
sound. The amplified sound will remain at the allowable 65 decibels. Staff recommends
approval of the request for extending the hours of operation for amplified sound to 11:30
p.m.
Item N was considered.
Ordinance No. 2011-100
N. Consider adoption of an ordinance of the City of Denton, Texas setting Planning and
Development Fees relating to Gas Well Drilling and Production in the City of Denton
and its Extraterritorial Jurisdiction; repealing Section 2 of Ordinance 2010-183; and
providing for an effective date.
Council Member Watts asked for a legal explanation for the relation of costs of services and
fees.
City Attorney Burgess stated that municipalities were required to look at a fee issue and ensure
that there was a rational relationship between the fees assessed and the actual work done. An
assessment of the fees was done and recommendations were done by the consultant to assess the
fees as noted in the backup. There was a differentiation between a fee assessment as appropriate
and an improper tax which would not be appropriate
Mayor Burroughs noted that when a city imposed fees, they must provide the actual cost of
service and not have a profit or be over the cost of service.
Council Member Watts motioned to adopt the ordinance as presented except for the second fee,
the gas well development site plan fee. That fee would stay the current fee while the other fees
would be as proposed in the ordinance.
Mayor Pro Tem Kamp seconded the motion.
City of Denton City Council Minutes
June 7, 2011
Page 12
Council Member Watts stated that as the process was moved forward towards Phase II, he would
like some clarification on different costs. He did not want to be subsidizing fees from other
departments.
City Manager Campbell stated that staff could provide a detailed comparison. There could be
other changes in the scope depending on what happened with Phase II.
Council Member Watts asked if the fees could be revised if for some reason the activities
associated with the fees were changed.
City Manager Campbell stated that the fees could be revised anytime the fees or services
changed.
On roll call vote, Council Member King "aye", Council Member Watts "aye", Council Member
Roden "aye", Council Member Gregory "aye", Council Member Engelbrecht "aye", Mayor Pro
Tem Kamp "aye", and Mayor Burroughs "aye". Motion carried unanimously.
5. CONCLUDING ITEMS
A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City
Council or the public N-,-ith specific factual information or recitation of policy, or accept a
proposal to place the matter on the agenda for an upcoming meeting
AND
Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of
community interest regarding N-,-hich no action will be taken, to include: expressions of thanks,
congratulations, or condolence; information regarding holiday schedules; an honoraiy or salutary
recognition of a public official, public employee, or other citizen; a reminder about an upcoming
event organized or sponsored by the governing body, information regarding a social, ceremonial,
or community- event organized or sponsored by an entity- other than the governing body that N-,-as
attended or is scheduled to be attended by a member of the governing body or an official or
employee of the municipality, or an announcement involving an imminent threat to the public
health and safety of people in the municipality- that has arisen after the posting of the agenda.
Council Member Gregory requested a work session on citizen representatives for the Phase II of
the gas well ordinance.
Council Member Watts asked for an update on the bid with the County for property including
potential legal ramifications.
Council Member Roden asked about putting information on line regarding the process for Phase
II of the gas well ordinance.
Council Member Engelbrecht mentioned the weekend activities associated with the anniversary
of Ruth's Room.
B. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the
Texas Open Meetings Act.
City of Denton City Council Minutes
June 7, 2011
Page 13
Mayor Burroughs announced that Council would be returning to Closed Session to complete the
items not considered during the earlier session.
C. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the
Texas Open Meetings Act.
There was no official action on either session of Closed Sessions.
1. Closed Meeting:
C. Deliberations regarding Real Property - Under Texas Government Code Section
551.072; Consultation with Attorneys - Under Texas Government Code Section
551.071.
1. Discuss, deliberate, and receive information from staff and provide staff
with direction pertaining to the acquisition or the condemnation of a fee
simple tract, a temporary constriction easement tract, and a public utility
easement tract for the Mayhill Road Widening and Improvements project,
affecting real property tract in the M. Forrest Survey, Abstract No. 417, in
the City and County of Denton, Texas. Consultation with the City's
attorneys regarding legal issues associated with the acquisition or
condemnation of the tracts referenced above where a public discussion of
these legal matters would conflict with the duty of the City's attorneys to
the Denton City Council under the Texas Rules of Disciplinary Conduct
of the State Bar of Texas, or would jeopardize the City's legal position in
any administrative proceedings or potential litigation.
D. Consultation with Attorneys - Under Texas Government Code Section 551.071.
1. Consult with City's attorneys regarding status of litigation styled Sutton, et
al. v. Walters, Cause No. 2011-60760-393, currently pending in the 393rd
District Court of Denton County, Texas.
Following the completion of the Closed Meeting, the Council returned to Open Session at 7:55 to
complete the discussion of Work Session Item 44.
4. Receive a report, hold a discussion and give staff direction on the FY 2011-12 Proposed
Budget, Capital Improvement Program, and Five Year Financial Forecast.
Bryan Langley, Chief Financial Officer, continued with the General Obligation Debt Service
Fund. It would be discussed in terms of updated long term forecast and assumptions and planned
future bond sales and potential issues.
GO Debt Service Fund FY 2011-12 - no tax rate increase for the GO Debt Service Fund was
planned. The appraisal growth assumptions mirrored those in the General Fund. Staff
recommended issuing $4 million in GO bonds which the funds were remaining from the 2005
bond election, for 2011-12. An additional $4 million in COs were also proposed for vehicle
City of Denton City Council Minutes
June 7, 2011
Page 14
replacements and facility improvements. $3 million in COs were also planned to be issued for
the Animal Adoption Center consistent with Council direction.
GO Debt Service Fund - 2012 and beyond - a $20 million street only bond program for 2012-13
was proposed. This was required for reconstruction of streets in conjunction with an increase in
maintenance and required that the Public Safety Training Facility be delayed until funding could
be obtained. The analysis assumed no tax rate increase in the GO Debt Service Fund. $9 million
in COs were also planned to be issued for the City's required match on Bonnie Brae and Mayhill
projects in 2013-14. The future size and timing of additional GO bond elections would be
dependent on economic factors.
Other major funds to be discussed included the electric fund, water fund, wastewater fund, solid
waste fund, health insurance fund and other miscellaneous funds.
Overview of Utility Funds - The Public Utilities Board was still in the process of reviewing the
financial plans for all utility funds. All funds assumed an average 2% increase in compensation
for employees the same as in the General Fund. Expenditure reductions in prior years had been
retained to minimize rate increases. There was an emphasis to maintain service delivery level.
Mayor Burroughs requested staff identify what other metroplex cities were doing as it would be
helpful to know what other cities were doing in terms of compensation.
Langley stated that many other cities doing the same thing as proposed for Denton with a 2-3%
increase. He reviewed the major impacts on the 2011-12 operating budget, CIP and Five Year
Financial Forecasts and risks that may affect financial performance.
The following strategies and objectives had been developed to strengthen the financial integrity
of each utility: (1) Phase in the replacement of aging infrastructure with current revenue funding
and reduce reliance on debt financing, (2) reach and maintain sufficient reserve fund balances
based on average daily expenses and unique operational aspects of each utility, (3) maintain
water and wastewater impact fee reserve balances at $1 million for each utility, (4) maintain
water and wastewater development line reserve balances at $1 million per Resolution R91-008
and (5) maintain debt coverage ratio of 1.25 or better for each utility.
Electric Fund - no base rate increase for electric utility customers was proposed. The revenue
forecast had been reduced from the prior year estimate. Two new full-time employees were
proposed. The major FY 2011-12 CIP projects were reviewed.
Council Member Watts asked about impact fees to fund additional infrastructure requirements on
new development.
Howard Martin, Assistant City Manager, stated that impact revenue was used for debt service.
New development did not pay for the whole cost of the infrastructure.
Water Fund - the proposed budget would have a net decrease of .5 full-time employees. A 9.5%
rate increase was proposed to recover the reduced rate and impact fee revenue. Major CIP
projects were reviewed.
City of Denton City Council Minutes
June 7, 2011
Page 15
Wastewater Fund - the Sanitary Sewer Overflow Program would require 3.5 additional full-time
employees, new equipment and capital expenditures. Four new full-time employees would also
be added to the fund. An 11% rate increase was proposed for FY 2011-12. Major CIP projects
were reviewed.
Mayor Burroughs suggested a ten-year analysis to see where the city was in the process.
Solid Waste Fund - Curbside recycling services were proposed to be brought in-house in
November 2012 which would result in a net lower cost than private services. Seven full-time
employees would be need. New technologies and expanded service initiatives over the next 5
years were reviewed along with major CIP projects. The residential and commercial rate
increases proposed for 2011-12 represented a $.60 monthly increase on the medium cart refuse
container and $.10 monthly increase on recycling.
Council Member Watts noted that if people were paying for the multi-family recycling fee, the
locations for recycling needed to be convenient. People were paying the fee and the number of
locations was less.
Langley reviewed the overall monthly rate impact for the average residential customer. These
rates were based on preliminary estimates. The Public Utilities Board would provide rate
recommendations on June 27th.
Health Insurance Fund - employee insurance premiums were not expected to increase in 2011-
12. The City contribution may increase 6% but this amount was still under review. Increases in
co-pay for amounts for urgent care and ER visits, as well as a change in the prescription
formulary were implemented in prior years. No changes were contemplated in 2011-12. The
health services clinic was planned to be open in 2012.
Other Funds -the Hotel Occupancy Tax Committee had discussed the preliminary budget
process for tourism and convention funds. The intent was to minimize an increase in funding for
various organizations supported by HOT funds. The goal would be to increase the fund balance
and create future capacity for convention related costs and services. The Fleet Services Fund
may increase substantially due to pending negotiations with DCTA in terms of a joint fleet
maintenance agreement with DCTA. .
Next Steps - Langley reviewed the upcoming budget schedule for June through September.
With no further business, the meeting was adjourned at 8:35 p.m.
MARK A. BURROUGHS JENNIFER WALTERS
MAYOR CITY SECRETARY
CITY OF DENTON, TEXAS CITY OF DENTON, TEXAS
CITY OF DENTON CITY COUNCIL MINUTES
June 14, 2011
After determining that a quorum was present, the City Council convened in a Work Session on
Tuesday, June 14, 2011 at 3:00 p.m. at Denton Regional Professional Office Building, 3537 S. I-
35E, Suite 310B (3rd floor), Denton, Texas.
1. Receive a report, hold a discussion and give staff direction regarding the proposed City of
Denton Health and Wellness Center.
City Manger Campbell stated that this was an important project that was introduced to Council
about two years ago as a concept for better health coverage for employees. Staff would be
presenting an update on the project.
Caleb O'Rear, CEO-Denton Regional Medical Center, presented introductory remarks
concerning DRMC. One of their focuses was to partner with agencies in the community to
provide health services.
Scott Payne, Risk Manager, provided an update on the project. He reviewed the cost of health
benefits, strategies to combat increases in health care costs, and why a clinic would be beneficial
to city employees. A clinic would be beneficial in terms of service versus benefits, better disease
management, active wellness partner, influence medicine prescribing patterns, and influence
physician and facility referrals. Other areas to consider for a clinic were accessibility, reduction
in absenteeism and presenteeism, a resource for other medical related services, establish a
medical home and provide a cost effective new benefit for employees.
Clinic RFSP Process - Staff first looked for partners within the community to establish a clinic.
The DISD and County indicated that they were not ready at this point in time to commit to such
a project. Twelve responses were received in response to the request for sealed proposal with
that number narrowed down to four for the Selection Committee to interview. The Selection
Committee chose two final companies and did site visits for their current facilities. The
Committee selected Care Here as the finalist.
Clinic Model - the clinic would be staffed with one physician and two medical assistants. Care
Here would interview and hire the employees. Employees would be able to schedule
appointments on line with clinic hours being 40 hours per week. Exact days and times had not
been established yet. Care Here would provide the medical supplies, medical equipment, and
electronic medical records.
Disease Management - disease management involved actively working with employees to better
manage their health. A No/Low Risk employee might receive letters, emails or health
information. Moderate Risk employees could receive letters, emails, health information and
possible outreach calls. High Risk employees might receive outreach calls and be placed in
structured programs to help manage their health issues.
Case Management would involve identification, assessment, the physician, patient goals and
evidence-based protocols. Clinic interaction with United Health Care would involve merging
clinic data with UHC data while still maintaining HIPPA protection.
Clinic Location - the proposed location for the clinic would be at the Denton Regional
Professional Office Building. It would include 2,529 usable square feet of space, five
examination rooms and three offices. The lease cost would be $1 per year. Benefits to this
City of Denton City Council Minutes
June 14, 2011
Page 2
location included proximity to city facilities, ample parking, existing medical facility, access to
other medical specialists and services, and occupational medicine and emergency room.
Estimated Costs - Start-up costs were estimated at $20,000; salaries were estimated at $360,000;
administrative fee was estimated at $319,662; and insurance was estimated at $3,510.
Mayor Burroughs asked about the possibility of having partners in the future and possible
expansion of services based on the current proposed contract.
Payne stated that the contract could be written to include possible partners in the future.
Mayor Burroughs asked about the length of the lease.
Payne stated it was for three years.
Mayor Burroughs asked about remodeling of the proposed space.
Payne stated that an allowance was provided for by DRMC for minor renovations.
Mayor Burroughs suggested tracking the savings associated with the use of the clinic so it could
be reviewed at the end of the contract period. He asked if the medical staff at the clinic was just
for the clinic or shared with another facility.
Payne stated that the clinic would have the first claim to the staff's time but they would be
allowed to work elsewhere on the weekends.
Mayor Burroughs stated that more would be known about employees due to the aggressive
wellness program and asked about that affect.
Payne stated that there would be a bump in the first year or so in the preventative area. The
minor preventative care bump would eventually hold off major care later.
Council Member Gregory stated that 64% of the employees participated in the wellness survey in
order to get a reduction in their premium. He questioned why the remaining percentage of
employees did not participate.
Payne stated that there were various reasons such as it was just not worth it to the employee.
Council Member Gregory asked about the definition of a "medical assistant".
Payne stated that was an individual who was not a registered nurse but a LVN who had gone
through medical training.
Council Member Roden asked who the employees would interact with in terms of disease
management.
Payne stated they would work with the clinic and Care Here would provide outreach calls.
City of Denton City Council Minutes
June 14, 2011
Page 3
Council Member King asked about the dispensing of medications at the clinic.
Payne stated that it would depend on the model used. There would be no samples provided.
Employees would receive a prescription to take to a pharmacy.
Mayor Pro Tem Kamp asked about the formulary.
Payne stated that it would be the formulary from United Health Care.
Mayor Pro Tem Kamp stated that with only one doctor, what would happen if that person were
not available to come to the clinic such as an illness or vacation.
Payne stated that Care Here would provide a fill-in during the doctor's absence.
City Manager Campbell asked about estimated employee participation.
Payne stated staff was looking at other proposals and that usually by the third year participation
had reached a peak.
Council Member Watts questioned what criteria would be used in the future to know if the clinic
was providing savings to the city - better care for employees, employee costs down, city costs
down.
Payne stated that hard costs diverted from the medical community should be seen. Staff would
be looking at overall trends and hard costs.
Council Member Watts asked if the insurance amount was sufficient to cover the city should
something happen in the clinic.
City Attorney Burgess stated that the doctor would have malpractice insurance in the clinic and
Care Here would provide insurance through the contract.
Council Member King asked how short time appointments would be accommodated.
Payne stated that part of the scheduling would still have to be worked out but there would be
time provided for walk-ins.
Council Member Gregory asked if Care Here was affiliated with United Health Care.
Payne stated that Care Here was not a part of United Health Care.
Council Member Engelbrecht suggested working with TWU to look at research for positive
feedback for incentives for employees who make strides in health care.
Payne stated staff could look into that strategy.
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June 14, 2011
Page 4
Council Member Roden asked about underutilized needs in the community partnering with the
clinic.
Payne stated that he was not sure about the use of public funds for a private use. Staff would
have to research partnering with another organization to help with underutilization.
Consensus of the Council was to proceed with the staff recommendation and move forward with
the clinic proposal.
2. The Council participated in a tour of the proposed City of Denton Health and Wellness
Center.
With no further business, the meeting was adjourned at 4:40 p.m.
MARK BURROUGHS
MAYOR
CITY OF DENTON, TEXAS
JENNIFER WALTERS
CITY SECRETARY
CITY OF DENTON, TEXAS
CITY OF DENTON CITY COUNCIL MINUTES
June 21, 2011
After determining that a quorum was present, the City Council convened in a Work Session on
Tuesday, July 21, 2011 at 3:00 p.m. in the Council Work Session Room at City Hall.
PRESENT: Council Member King, Council Member Gregory, Council Member Engelbrecht,
Mayor Pro Tem Kamp, Mayor Burroughs, Council Member Roden
ABSENT: Council Member Watts and Council Member King.
Citizen Comments on Consent Agenda Items
Joe Northern presented information on Transit Center Investment. He presented results of a six
month tenant search for the Bell Street property. The proposal was for a New Orleans style
restaurant delivering the first spark of change for the Industrial/Bell Street area. The short term
and long term feasibility analysis was discussed.
Sam Sullivan spoke on the benefits of the proposal.
John Blackman presented benefits of the proposal.
Randy Smith spoke in favor of the proposal.
Mayor Burroughs questioned why this was another grant request for the same property and why
it was not done as a package.
Smith stated that one grant was for the rehabilitation of the property and one was for the tenant.
Mayor Burroughs noted that Nona Dean and Kelly Alexander had submitted Comment Cards for
Consent Agenda Item 3E.
Sam Alexander presented information on Consent Agenda 3E concerning the purchase of the
easements.
Bob Clifton spoke in opposition to Consent Agenda Items 3B, C, D and E.
Council Member King arrived at the meeting.
2. Requests for clarification of agenda items listed on the agenda for June 21, 2011.
City Attorney Burgess stated that Consent Agenda Item 3C had a substitute ordinance consistent
with the Economic Development Partnership Board recommendation.
Mayor Burroughs noted that he would be pulling Item 3C for separate consideration.
Receive a report, hold a discussion and give staff direction regarding redistricting of city
council districts as a result of the 2010 census.
City Attorney Burgess stated that currently there were two plans for Council consideration.
Bob Heath, Bickerstaff Heath Delgado Acosta, stated that part of the process for redistricting
was to develop an illustrative plan for public discussion. That plan would not be a final plan but
would be available for public comments, possible alternatives from the public and then Council
would decide on what kind of plan to adopt. He showed the existing plan and detailed the census
numbers against the existing plan. The current configuration was dramatically out of balance
due to population growth with District Four 37% over populated. The ideal balance was to get
the difference of the largest deviation and smallest deviation to no more than 10%. Changes in
the voting districts had to comply with the Voting Rights Act and had to be approved by the
Department of Justice in Washington. That agenda would make sure that there was no
diminishing of a minority voting district. The heaviest minority district in Denton was District
One. It was determined that the best way to equal out the numbers was to move the lines
clockwise and take numbers from District Four into District Three, District Three into Two, etc.
Plan A - the district lines for Plan A were reviewed. Heath noted that the deviation was at 9.4%.
One problem with Plan A was in the center area where they tried to keep the voting precincts
together. In order to get the population balanced they had to make some splits in the county
precincts.
Plan B - the district lines for Plan B were reviewed. This plan compensated the precinct lines so
that they were not split as much and had very few split precincts. The deviation in Plan B was
8.66% with the minority percentage very similar to the start of District One.
Heath stated that he felt Plan B was the better of the two plans. Plan B paid attention to county
voting precinct lines and the provisions of the Voting Rights Act. Council could propose
changes to either of the plans and he hoped Council would come to a consensus on a plan that
could be put out for public comment.
Council Member Roden asked why total population was used instead of voting age population.
Heath stated that typically total population was used for redistricting. He knew of only one case
where voting age population was used. In the 2000 redistricting cycle, all plans adopted by the
Department of Justice had used total population. Total population included children who were
part of the community and were traditionally included. Citizen voting age population figures
were difficult to compute and were not useful for redistricting.
Council Member Roden asked at what point would registered voter information be used as part
of the process and would that be helpful for redistricting.
Heath stated that the Department of Justice would not approve a plan based on registered voter
information as minorities registered at lower rates than others did.
Council Member Roden questioned that as redistricting was only done every ten years, were
known growth areas worked into the figures.
Heath stated that growth figures could be considered but not so much as to take it outside the
10% deviation. Minority areas tended to grow more slowly than other areas which might be
more Anglo in nature and if the area was over populated there might be a Section 5 violation.
The primary reason for a preference for Plan B was better minority percentages and fewer split
precincts.
Mayor Burroughs stated that he recognized that the entire process was based on an increasing
assumption that neighborhoods grew in segregated ways and tended to aggregate persons of
color in particular neighborhoods. If redistricting was done correctly, that should not be a factor
in the growth of neighborhoods. It appeared that it would be increasingly hard to meet the
provisions of the Voting Rights Act as minorities spread out more and more in neighborhoods.
Heath stated that it was harder to draw Hispanic districts as the Hispanic population was a huge
growth in Texas and was a disperse population. Hispanic population areas tended to not be as
concentrated as African-American areas tended to be.
Mayor Pro Tem Kamp asked whether Precinct 118 was split between Districts One and Two.
Heath stated Precinct 118 was partially inside the city limits and partially outside the city limits.
It was not split.
Council Member Engelbrecht asked how it was determined to split a precinct and whether it
followed backyard to backyard.
Heath stated that the lines followed a street line as that was what the census lines and precinct
lines did. Backyard to backyard was very difficult and often caused problems with voting
precincts.
Council Member Roden noted that Precinct 408 currently was in District Three but would be
moving into District Two. The demarcation line was in the middle of an existing neighborhood.
Staff worked on changing the lines in District 2 with Precinct 408.
Council Member Gregory asked who set the precincts.
Heath stated that the County set the lines and had certain requirements for each precinct. If the
city drew a district that split a precinct the County should fix it and draw the lines similar to the
city district. However, the less the precincts were split the easier it would be for the County to
draw their lines.
Council Member Gregory stated that after the plan was worked out and Council agreed to the
plan, the decision on which plan to propose to the Department of Justice was the Council's
decision.
Heath replied correct.
Council Member Gregory asked about public hearings.
City Attorney Burgess stated that once the Council had decided on a plan it would be brought
forward as a public hearing for citizen comments. Citizens could also submit a plan per Council
established procedures. Council would then do a final consideration for the plan.
Council Member Gregory asked about a time frame for completion.
City Attorney Burgess stated that staff hoped to have the process completed by September.
Council discussed the changing of various district lines and developed a Plan C for
consideration. It was felt that Plan C kept neighborhoods together better.
Consensus of the Council was to proceed with Plan C.
Council Member Engelbrecht suggested enlarging the areas in the southern portion of the
proposed plan to see if there were any neighborhood issues associated with split precincts.
Council Member Roden asked when the plan would go into effect once the Council approved it.
City Attorney Burgess stated that once the plan was approved by Council, it would be submitted
to the Department of Justice and Justice should approve it so that the lines would set before the
next election. Justice had approximately 60 days from submission to approve.
Council Member Roden asked if it would be possible to give web space for the plan.
City Attorney Burgess stated that it could be posted to the web for citizen comment.
Council Member Gregory stated that there were scheduled donut hole annexations within three
years and had those annexations been considered in the figures.
Heath stated that the major annexation would put the numbers over but still within the required
percentage.
4. Receive a report, hold a discussion and give staff direction regarding the outcome of the
2011 State Legislative Program of the City of Denton during the 82nd Texas Legislature,
including future legislative issues and strategies.
John Cabrales, Public Information and Intergovernmental Relations Officer, presented an
overview of the outcome of the 2011 legislative programs.
The Session overview started with an attempt by Tea Party groups to appoint a new Speaker of
the House; Republicans had a supermajority; the State was facing a $27 billion state budget
deficit; redistricting was an issue along with the sunset of several key agencies. A special
session was in progress at this time.
Cabrales reviewed the total bills introduced, total bills passed, city related bills introduced, and
city related bill passed. A list of items for legislative emergency as announced by the Governor
was presented. He reviewed the impact to cities based on the state budget bill. In total, there
would be a $154 million reduction in funds to be received from the State. Those reductions
included mixed beverage tax, library resource sharing, local library aid, local parks grants, major
events trust fund, automobile theft prevention, and TCEQ solid waste grants.
Cabrales reviewed proposed legislation and legislation that passed in the areas of (1) city
legislative issues, (2) transportation, (3) economic development, (4) elections, (5)
utilities/environment, (6) proposals for redistricting of House and Senate districts and (7) the
latest U.S. congressional districts. He stated that there were hundreds of harmful initiatives that
were defeated in areas of appraisal caps, annexation authority, tree mitigation and bans on plastic
bags. The Special Session currently in progress would be considering school funding, changes to
Medicaid, congressional redistricting, Texas Windstorm Insurance Agency, sanctuary cities and
airport security.
Council Member Roden asked about the voter ID bill and how that would affect Denton voters.
Cabrales stated that a voter would need a photo ID in order to vote.
Council Member Roden felt that voters would need to be educated before the May election on
this procedure.
5. Receive a report, hold a discussion and give staff direction regarding Board and
Commission nominations, ad hoc committee nominations, and council committee
nominations.
City Manager Campbell stated that there was no formal presentation with this item. Council
could review the listing of the nominations submitted for boards and commissions and also
council committee assignments.
Mayor Burroughs stated that the Airport Advisory Board was in a state of flux for duties and
goals to achieve. He stated that the process was outreach to help Council with various
committee functions. His sense on the Airport Advisory Board was the Board needed people
with practicable airport background plus people who could see the vision for the Airport and the
way Council was trying to approach it. It was not the goal to have an identical function of the
Board as it had changed and there was a need for flexibility with those goals in mind. It was his
hope to have a functional board with a perspective sense for how the Airport functions and what
made it successful plus a vision for Airport.
Mayor Pro Tem Kamp stated that she had some concerns regarding returning members but had a
discussion with Jim Clark and he assured her his thoughts were in line with Council's direction
for the Airport.
Council Member Gregory indicated that Bob Pugh did not want to serve again on the Airport
Advisory Board.
Mayor Pro Tem Kamp suggested Karen Dixon for the Airport Advisory Board.
Council continued with a board by board review of proposed members.
Council Member Engelbrecht suggested encouraging people to submit applications. He
suggested communicating to those people whose application was not used that their application
would continue to be kept on file. He also suggested a letter after an application was received
acknowledging it had been received.
Council went into Closed Session at 5:25 p.m. to discuss the following:
C. Deliberations regarding Personnel Matters - Under Texas Government Code
Section 551.074.
1. Deliberate and discuss the appointment and duties of public officers to
boards or commissions exercising discretionary or rile making power as
opposed to purely advisory powers, which includes without limitation the
Health and Building Standards Commission, the Historic Landmark
Commission, the Planning and Zoning Commission, and the Zoning
Board of Adjustment.
Council returned to Open Session at 5:32 p.m.
Council discussed Council committees. Mayor Burroughs asked if any council member would
like to serve on the Audit/Finance Committee.
Council Member Roden expressed an interest and indicated that he would be happy to give up
his position on the Property Maintenance Code Committee.
Council Member Engelbrecht indicated that he would serve on the Property Maintenance Code
Committee.
City Secretary Jennifer Walters stated that there would be an item on an upcoming agenda for
formal consideration of the Council committees.
City Manager Campbell asked about direction on the gas well task force. Three possible names
had been submitted and staff needed direction on which two people the Council would like to
place on the task force.
Consensus of the Council was to nominate all three people.
Council returned to the Close Meeting at 5:54 p.m. to consider the items listed below:
1. Closed Meeting:
A. Certain Public Power Utilities Competitive Matters - Under Texas Government
Code Section 551.086; Consultation with Attorneys - Under Texas Government
Code Section 551.071.
I. Receive a status report and further presentation from staff regarding
public power competitive and financial matters regarding the possible
constriction and installation of a state-of-the-art combined heat and power
(CUP) tri-generation station for the City to be located in the industrial
district in the City of Denton, Texas; discuss deliberate, consider and
provide staff with direction regarding same. Receive a briefing from and
a further consultation with the City's attorneys regarding legal issues
concerning the possible constriction and installation of a combined heat
and power (CUP) tri-generation station for the City in the industrial
district in the City of Denton, Texas; and discuss, deliberate and provide
the City's attorneys with direction and any recommendations regarding
such legal matter. A public discussion of this legal matter would conflict
with the duty of the City's Attorneys to the City Council under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of Texas.
D. Consultation with Attorneys - Under Texas Government Code Section 551.071.
1. Consult with, and provide direction to, the City's attorneys regarding legal
issues associated with revisions to the City's pretreatment program
regulating discharges into the City's sanitary wastewater system, where a
public discussion of these legal matters would conflict with the duty of the
City's attorneys to the City Council of the City of Denton and the City of
Denton under the Texas Disciplinary Rules of Professional Conduct of the
State Bar of Texas.
2. Consult with and provide direction to, the City's attorneys regarding legal
issues associated with the re-districting process of City Council district
boundaries as a result of the 2010 census, where a public discussion of
these legal matters would conflict with the duty of the City's attorneys to
the City Council of the City of Denton and the City of Denton under the
Texas Disciplinary Rules of Professional Conduct of the State Bar of
Texas.
This item was not discussed in Closed Session.
E. Deliberations regarding Real Property - Under Texas Government Code Section
551.072; Consultation with Attorneys - Under Texas Government Code Section
551.071.
1. Discuss, deliberate, and receive information from staff and provide staff
with direction pertaining to the acquisition or the condemnation of a fee
simple tract, a temporary constriction easement tract, and a public utility
easement tract for the Mayhill Road Widening and Improvements project,
affecting real property tract in the M. Forrest Survey, Abstract No. 417, in
the City and County of Denton, Texas. Consultation with the City's
attorneys regarding legal issues associated with the acquisition or
condemnation of the tracts referenced above where a public discussion of
these legal matters would conflict with the duty of the City's attorneys to
the Denton City Council under the Texas Rules of Disciplinary Conduct
of the State Bar of Texas, or would jeopardize the City's legal position in
any administrative proceedings or potential litigation.
This item was not discussed in Closed Session.
The Council convened in Regular Session at 6:30 p.m.
1. PLEDGE OF ALLEGIANCE
The Council and members of the audience recited the Pledge of Allegiance to the U. S. and
Texas flags.
2. PROCLAMATIONS/PRESENTATIONS
A. Proclamations/Awards
1. Presentation of the Heart and Stroke Healthy City Award from the Texas
Council on Cardiovascular Disease and Stroke.
Dr. Bob Hilart presented the award to the Council and City.
2. Presentation of Top 100 Fleet Award.
Mike Ellis presented the award to the City and the Council.
3. CONSENT AGENDA
Mayor Burroughs stated that Item 3C would be pulled for separate consideration.
Mayor Pro Tem Kamp motioned, Council Member Gregory seconded to approve the Consent
Agenda and accompanying ordinances and resolutions with the exception of Item 3C. On roll
call vote, Council Member King "aye", Council Member Roden "aye", Council Member Gregory
"aye", Council Member Engelbrecht "aye", Mayor Pro Tem Kamp "aye", and Mayor Burroughs
"aye". Motion carried unanimously.
Resolution No. R2011-018
A. Consider approval of a resolution nominating a member to the Board of
Managers of the Denco Area 9-1-1 District; and declaring an effective date.
Ordinance No. 2011-101
B. Consider adoption of an ordinance of the City Council of the City of Denton, Texas,
approving a grant application from Brandon Martino from the Downtown Incentive
Grant Program not to exceed $15,000; and providing for an effective date. The
Economic Development Partnership Board recommends approval (7-0).
Resolution No. R2011-019
D. Consider approval of a resolution of the City of Denton, Texas approving the
creation of a mural as a public art project; pursuant to the City of Denton Public
Art policy approved by Ordinance 2006-105, and funded with Hotel Tax revenues
previously authorized and encumbered for expenditure to such purposes; and
declaring an effective date. The Parks, Recreation and Beautification Board
recommends approval (6-0).
Ordinance No. 2011-102
E. Consider adoption of an ordinance authorizing a Professional Services Agreement
for Appraisal Services and ROW Acquisition Services by and between ARMS
Texas LP, and the City of Denton for services regarding the procurement and
delivery of land rights for the Denton Municipal Electric 69kV Kings Row to
Spencer Transmission Line Upgrade Project (Phase I1); in a not-to-exceed amount
of $381,800.00. The Public Utilities Board recommends approval (4-0).
Ordinance No. 2011-103
F. Consider adoption of an ordinance of the City of Denton, Texas, amending
Article V, entitled "Direct and Indirect Discharge into Sanitary Wastewater
System" of Chapter 26, "Utilities", of the Code of Ordinances of the City of
Denton, Texas, related to discharge into the sanitary wastewater system;
providing the purpose and scope of the ordinance; providing definitions;
providing for administration of program; providing procedures for abatement of
violations; providing for penalties; providing for determination of the character
and concentration of wastewater; providing for approval of plans, issuance of
permits and certification of final inspections; providing for inspections; providing
rights of access to industrial user records; providing for right of entry to users'
property; providing affirmative defenses; providing for bypass; providing for
public participation; requiring connection to the sanitary sewer; providing for the
prohibition of dry closets; providing for the constriction of sanitary sewers and
connections; providing for owner responsibility for maintenance of sanitary sewer
service lines; requiring compliance with building regulations; prohibiting certain
discharges into the publicly owned treatment works; providing for specific
pollutant limitations; prohibiting discharge of waters not containing wastewater to
the wastewater system; prohibiting discharge of polluted water to any storm
sewer or natural outlet; providing for the installation of traps regarding certain
discharges; requiring permits of wastewater discharges from transport tricks;
requiring permits for significant industrial users to connect to the wastewater
system; providing procedures for obtaining permits; providing for suspension or
revocation of permits and the effect thereof, providing for reinstatement of
suspended or revoked permits; requiring necessary pretreatment of wastewater by
significant industrial users; requiring control manholes; providing for a surcharge
for abnormal strength wastewater; providing for the effect of the united states
code of federal regulations; providing a savings clause; providing a misdemeanor
penalty not to exceed $2,000 per day for violations of this ordinance; providing a
civil penalty not to exceed $5,000 per day for violations of this ordinance,
together with other designated legal and equitable remedies that are available to
the city; and providing for an effective date. The Public Utilities Board
recommends approval (4-0).
Resolution No. R2011-020
G. Consider approval of a resolution of the City Council of the City of Denton,
Texas, committing to the continuation of adequate funding for implementation of
the City of Denton Environmental Protection Agency approved pretreatment
program; and providing an effective date. The Public Utilities Board
recommends approval (4-0).
Resolution No. R2011-021
H. Consider approval of a resolution of the City of Denton to designate the Loop 288
project west of IH-3 5 (from IH-3 5 to IH-3 5 W) to the State Highway System; and
providing an effective date.
Resolution No. R2011-022
L Consider approval of a resolution re-appointing a member to the Board of
Directors of the Texas Municipal Power Agency, a Joint Powers Agency,
representing the City of Denton, Texas; and declaring an effective date.
Abbroved the minutes listed below
J. Consider approval of the minutes of:
May 17, 2011
May 24, 2011
June 6, 2011
Council considered Item 3C.
C. Consider adoption of an ordinance of the City Council of the City of Denton,
Texas, approving a grant application from Joe Northern from the Downtown
Incentive Grant Program not to exceed $5,000; and providing for an effective
date. The Economic Development Partnership Board recommends denial (7-0).
City Manager Campbell stated that Council had two ordinances for consideration on this item.
One ordinance would approve the grant application request; the other would deny the request.
Council Member Roden stated that the request was denied by the Economic Development
Partnership Board but approved by the Downtown Task Force. He questioned the difference in
recommendations.
Mayor Burroughs stated that there was not a unanimous vote from the Task Force and he did not
know about their deliberations. The Economic Development Partnership Board (EDPB) asked
for more definitive criteria from the Task Force. Some of the discussion from the EDPB was
held in Closed Session had he could not discuss the Closed Session. There was no particular
problem with this use and that was not an issue. Such a use was wanted and needed in the area.
One issue of concern was that this was the first time that one location was seeking a second
grant. The building had been relocated to the current property and was not historic in nature.
The landlord had one grant application which passed and the money was awarded. This was a
second request. He expressed a concern about a policy issue on where to draw the line for
additional money. The Incentive Program did not have much money and he was concerned
about granting a second grant for the same location.
Council Member Gregory stated that he was also on the EDPB and agreed with the Mayor's
rationale. If Council denied the application, he questioned if Council would be creating a policy
that only one grant would be awarded per location.
Mayor Burroughs stated that the EDPB did not want to give a sense that this was a bad proposal.
Council Member Roden asked if there had been other instances where one property received
more than one grant.
Linda Ratliff, Director of Economic Development, stated that there was one other building that
received two grants. One was for renovation of the property given to the owner of the property
and the second was for the tenant to help pay for the impact fee.
Mayor Burroughs asked if there was an impact fee on this proposal.
Ratliff stated yes but that the first application received was from the tenant for signage and
awnings for $15,000. The property owner presented an application at the same time but as it was
not complete, he had to come back later with a completed application. The property owner's
request was for the impact fee and decking.
Mayor Burroughs asked if there had been discussion on the separation of the other grants being
two for the same property.
Ratliff stated that there was nothing in the policy preventing one property from having two
grants. One person could not have two grants for same property but a property owner could have
a grant and a tenant another grant for the same property.
Council Member Engelbrecht recognized that the project was an investment in the area. He felt
the Consent Agenda item concerning the art mural would help the project as would the quiet
zone for the area.
Council Member Roden asked if this item was appropriate for a Closed Meeting discussion.
City Attorney Burgess stated that it was not posted for a Closed Meeting item on this agenda.
Mayor Pro Tem Kamp felt that more information was needed and suggested it be continued to
another meeting.
Mayor Pro Tem Kamp motioned, Council Member King seconded to continue the item to the
July 12 Council meeting in order to allow Council to receive more information in a Close
Session on the EDPB meeting discussion. On roll call vote, Council Member King "aye",
Council Member Roden "aye", Council Member Gregory "aye", Council Member Engelbrecht
"aye", Mayor Pro Tem Kamp "aye", and Mayor Burroughs "aye". Motion carried unanimously.
4. ITEMS FOR INDIVIDUAL CONSIDERATION
Resolution No. R2011-023
A. Consider approval of a resolution nominating a representative to the Board of
Directors of the Denton Central Appraisal District; and declaring an effective
date.
Bryan Langley, Chief Financial Officer, stated that the Denton Central Appraisal District had a
board member resign and was requesting nominations for a replacement. That member would be
selected by the Board from the nominations received from area cities. The term of office would
be until the end of 2011. He asked if Council had any nominations.
Mayor Pro Tem Kamp asked if Council could vote on the resolution and insert a name after this
meeting.
City Attorney Burgess stated that the Council needed to vote on the resolution with a name
included.
Council Member King thought that Phil Kregel might be interested.
Consensus of Council was to put this item on hold until Council Member King could contact Mr.
Kregel to see if he would be interested in serving.
Council Member King left the meeting to contact Mr. Kregel.
B. Consider a request for an exception to the Noise Ordinance for the hours of
operation for the purpose of an event with live music on Saturday, July 9, 2011,
at 1000 Myrtle Street. The exception is requested for extension of the hours of
operation for amplified sound from 10:00 p.m. to midnight. The level of sound is
to remain at the allowable 70 decibels. Staff recommends denial of the exception
to the Noise Ordinance based on the number of noise complaints received by the
Denton Police Department, in connection with this address, since March 1, 2011.
Emerson Vorel, Director of Parks and Recreation, stated that the applicant requested a noise
exception in order to host an art and music show. The exception was requested for an extension
of the hours of operation from 10:00 p.m. to midnight. The sound level would remain at 70
decibels. Council approved a similar request for an event held on May 21st at this address. The
Police Department had received five noise complaints since March 1st at this address. Staff was
not recommending approval based on the number of complaints.
Mayor Burroughs asked what kind of noise complaints was filed.
Vorel stated he did not know.
Council Member Gregory asked if citations were issued.
Vorel stated that many times the police do not issue citations but ask that the music be turned
down.
Council Member Roden asked if it were part of the procedure to have the neighbors sign off on
the request.
Vorel stated that there was no standard procedure. Depending on the size of the event, staff
would suggest having the neighbors sign off.
Council Member Roden stated that it was not known if the complaints came from different
addresses or all from one person.
Vorel stated that the location was between two commercial properties so there were limited
residents.
Council Member Engelbrecht motioned, Council Member Gregory seconded to approve the
noise exception with the hours until 11:00 p.m. On roll call vote, Council Member King "aye",
Council Member Roden "aye", Council Member Gregory "aye", Council Member Engelbrecht
"aye", Mayor Pro Tem Kamp "aye", and Mayor Burroughs "aye". Motion carried unanimously.
Council returned to Item 5.A.
Council Member King indicated that Mr. Kregle would be willing to serve on the Board.
Council Member King motioned, Mayor Pro Tem Kamp seconded to nominate Phil Kregel to the
Denton Central Appraisal District Board of Directors. On roll call vote, Council Member King
"aye", Council Member Roden "aye", Council Member Gregory "aye", Council Member
Engelbrecht "aye", Mayor Pro Tem Kamp "aye", and Mayor Burroughs "aye". Motion carried
unanimously.
5. CONCLUDING ITEMS
A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries
from the City Council or the public with specific factual information or
recitation of policy, or accept a proposal to place the matter on the agenda for an
upcoming meeting
AND
Under Section 551.0415 of the Texas Open Meetings Act, provide reports about
items of community interest regarding which no action will be taken, to include:
expressions of thanks, congratulations, or condolence; information regarding
holiday schedules; an honorary or salutary recognition of a public official, public
employee, or other citizen; a reminder about an upcoming event organized or
sponsored by the governing body; information regarding a social, ceremonial, or
community event organized or sponsored by an entity other than the governing
body that was attended or is scheduled to be attended by a member of the
governing body or an official or employee of the municipality; or an
announcement involving an imminent threat to the public health and safety of
people in the municipality that has arisen after the posting of the agenda.
Mayor Burroughs presented a list of events which happened in the City during the past week.
Council Member Gregory asked about placing good news releases on the city's web.
Council Member Roden noted a Citizens Downtown Living Group meeting he would be
facilitating on Thursday.
Council Member Engelbrecht suggested developing a policy on what awards would be posted to
the web, possibly post them in chronological order and keep on the site for two years.
B. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the
Texas Open Meetings Act.
Mayor Burroughs announced that Council would be going back into Closed Session.
C. Official Action on Closed Meeting Item(s) under Sections 551.071-551.086 of the
Texas Open Meetings Act.
There was no official action on Closed Meeting items.
Council adjourned into the Closed Meeting at 7:40 p.m. to discuss the following:
B. Deliberations regarding consultation with the City Attorney - Under Texas
Government Code Section 551.071, Deliberations regarding Economic
Development Negotiations - Under Texas Government Code Section 551.087.
1. Receive a report and hold a discussion regarding legal issues on matters in
which the duty of the attorney to the governmental body under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of Texas
clearly conflicts with the provisions of the Texas Open Meetings Act,
Chapter 551 of the Texas Government Code. Also hold a discussion
regarding granting economic development incentives to a property owner
for the purpose of developing an industrial park in the industrially zoned
area north of Airport Road and west of I-35. This discussion shall include
commercial and financial information the City Council has received from
the property owner which the City Council seeks to have develop in or
near the territory of the city, and with which the City Council is
conducting economic development negotiations; including the offer of
financial or other incentives
2. Receive a report and hold a discussion regarding legal issues on matters in
which the duty of the attorney to the governmental body under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of Texas
clearly conflicts with the provisions of the Texas Open Meetings Act,
Chapter 551 of the Texas Government Code. Also hold a discussion
regarding granting economic development incentives to a property owner
for the purpose of redeveloping a major retail facility in the City of
Denton, located at Loop 288 and I-35E. This discussion shall include
commercial and financial information the City Council has received from
the property owner which the City Council seeks to have the property
redeveloped in or near the territory of the city, and with which the City
Council is conducting economic development negotiations; including the
offer of financial or other incentives.
3. Receive a report and hold a discussion regarding legal issues on matters in
which the duty of the attorney to the governmental body under the Texas
Disciplinary Rules of Professional Conduct of the State Bar of Texas
clearly conflicts with the provisions of the Texas Open Meetings Act,
Chapter 551 of the Texas Government Code. Also hold a discussion
regarding granting economic development incentives for the purpose of
developing locating a light manufacturing/assembly facility on Loop 288
and Russell Newman Blvd. This discussion shall include commercial and
financial information the City Council has received from the property
owner which the City Council seeks to have the company locate, stay, or
expand in or near the territory of the city, and with which the City Council
is conducting economic development negotiations; including the offer of
financial or other incentives.
With no further business, Council reconvened into Open Session and adjourned at 9:07 p.m.
MARK A. BURROUGHS
MAYOR
CITY OF DENTON, TEXAS
JENNIFER WALTERS
CITY SECRETARY
CITY OF DENTON, TEXAS
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Utilities
ACM: Howard Martin, 349-8232
SUBJECT
Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager or
his designee to execute a Contract of Sale (herein so called) between the City of Denton, as
Buyer and Black Bear Properties, LLC, as Seller, contemplating (I) the sale and purchase of an
approximate 4.024 acre tract of land, being located in the M. Forrest Survey, Abstract Number
417, City and County of Denton, Texas, and also known as 4001 E. McKinney, Denton, Texas
("Real Property") and (11) the execution and delivery of a Temporary Lease (herein so called) of
the Real Property to Seller, for a purchase price of Nine Hundred and Forty Thousand and
No/100 Dollars ($940,000.00); authorizing the City Manager, or his designee, to execute and
deliver the Temporary Lease and all other documents necessary to accomplish closing of the
transactions contemplated by the Contract of Sale; authorizing the expenditure of funds
therefore; and providing an effective date. (Mayhill Road Widening and Improvements project)
BACKGROUND
In accord with the current Mayhill Road Widening and Improvements project initiative, staff has
entered into talks with Black Bear Properties, LLC, in respect to how their property tract will be
affected by the project requirements. United Commercial Cast Stone presently operates upon the
subject 4.024 acre tract as a going concern, focused on the manufacture and sale of cast concrete
building components. That company's primary manufacturing operations are housed in a
stricture having a footprint 16,000 square feet, in concert with a warehouse building comprising
4,400 square feet. Also upon the subject tract: equipment shed of 550 square feet and a single
family residence of 1,110 square feet.
The primary stricture and warehouse building are situated in very close to the western property
line of the subject 4.024 acre tract. The location of proposed Mayhill Road paving and
improvements will require the demolition and removal of both strictures, effectively displacing
the manufacturing operation.
The overall subject 4.024 acre property is an assemblage of three discrete tracts and has been
marketed for sale, in its entirety, for the last few years. Further conversations and negotiations
with the property owner yielded common purpose objectives for both parties, predicated upon a
whole tract purchase by the City of Denton.
The primary elements of the proposed purchase transaction involve:
0 Purchase price of $940,000.
• A temporary lease-back period to the Seller, through April 2012, to provide a reasonable
time period for relocation of the manufacturing operations, equipment and materials.
Staff believes that the whole tract purchase of the subject property will be in both party's best
interests. The portion of the purchase tract not being encumbered with planned project paving
and improvements can be utilized as contractor operations, staging and storage while the various
segments of area road projects are being effectuated over the course of the next several years.
Upon conclusion of the various area road widening initiatives, the portion of the 4.024 acre tract
not encumbered by permanent paving and improvements could become a candidate for public
sale, as per applicable governing statutes, or put into service for a municipal purpose, dependent
upon identified future program needs.
OPTIONS
1. Approve the proposed Ordinance.
2. Decline to approve the proposed Ordinance.
3. Table for future consideration.
RECOMMENDATION
Recommend approval of the Ordinance.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
June 7, 2011 - City Council executive session consultation.
FISCAL INFORMATION
Project is being funded with a combination of Regional Toll Revenue (RTR) funds, Denton
County Transportation Road Improvement Program (TRIP `08) funds and City of Denton local
match funds. Purchase price of $940,000.00 plus closing costs as prescribed in the Contract are
to be funded through a combination of fund sources: $356,213.20 from 350281440, $19,436.56
from 350281445, $482,003.16 from 350281447, and $82,347.08 from 350281453 (closing costs
to be pulled from 350281453 which has a total available balance of $312,229.08).
BID INFORMATION
Not applicable
EXHIBITS
1. Ordinance
2. Location Map
Prepared by,
r
Paul Williamson,
Real Estate Manager
Respectfully submitted,
Frank G. Payne, P.E.
City Engineer
salegaRour documentslordinancesll Ilblack bear ordinance .doc
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT OF SALE (HEREIN SO
CALLED) BETWEEN THE CITY OF DENTON,
PROPERTIES, LLC, AS SELLER, CONTEMPLATING (IAS BUYER AND BLACK EAR
) THE SALE ND PU CHASE OF
AN APPROXIMATE 4.024 ACRE TRACT OF LAND, BEING LOCATED IN THE M.
FORREST SURVEY, ABSTRACT NUMBER 417, CITY AND COUNTY OF DENTON,
TEXAS, AND ALSO KNOWN AS 4001 E. MCKINNEY,
PROPERTY") AND (II) THE EXECUTION AND DELIVERY OF ATTEMPORARY (LEASE
O
(HEREIN SO CALLED) OF THE REAL PROPERTY TO SELLER, FOR A PURCHASE
PRICE OF NINE HUNDRED AND FORTY THOUSAND AND NO/100 DOLLARS
($940,000.00); AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
AND DELIVER THE TEMPORARY LEASE AND ANY AND ALL OTHER DOCUMENTS
NECESSARY TO ACCOMPLISH CLOSING OF THE TRANSACTIONS CONTEMPLATED
BY THE CONTRACT OF SALE; AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFORE; AND PROVIDING AN EFFECTIVE DATE. (MAYHILL ROAD WIDENING
AND IMPROVEMENTS PROJECT)
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute the
Contract of Sale, between the City of Denton and Black Bear Properties, LLC, in the form
attached hereto and made a part hereof as Exhibit "A" (the "Contract"), with a purchase price of
$940,000.00 plus closing costs as prescribed in the Contract, and any and all other documents
necessary for the acquisition of the Real Property, as more particularly described therein,
including without limitation, the Temporary Lease. The Real Property is being acquired to
accommodate the requirements of the Mayhill Road Widening and Improvements project.
SECTION 2. The City Manager is hereby authorized to make expenditures as set forth
in the Contract of Sale.
SECTION 3. That this ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this the da of y , 2011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
Page
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CONTRACT OF SALE
STATE OF TEXAS §
COUNTY OF DENTON §
This Contract of Sale (the "Contract") is made this day of 2011,
effective as of the date of execution hereof by Buyer, as defined herein (the "Effective Date"), by
and between Black Bear Properties, LLC (referred to herein as "Seller") and the City of Denton,
Texas, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as
"Buyer").
RECITALS
WHEREAS, Seller owns those certain lands being more particularly described in Exhibit
"A", attached hereto and made a part hereof for all purposes, being located in Denton County,
Texas (the "Land"); and
WHEREAS, Seller desires to sell to City, and City desires to buy from Seller, the Land,
together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights
of way and together with all and singular the improvements and fixtures thereon and all other
rights and appurtenances to the Land (collectively, the "Property").
ARTICLE I
SALE OF PROPERTY
For the consideration hereinafter set forth, and upon the terms, conditions and provisions
herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from
Seller, the Property.
ARTICLE II
PURCHASE PRICE AND EARNEST MONEY
2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of
Nine Hundred and Forty Thousand Dollars and No/100 ($940,000.00) (the "Purchase Price").
2.02 Earnest Money. Buyer shall deposit the sum of Twenty Five Thousand and No/100
Dollars ($25,000.00), as Earnest Money (herein so called) with Title Resources, 1112 Dallas
Drive, Suite 402, Denton, Texas, 76205 (the "Title Company"), as escrow agent, upon execution
of this Contract by Seller and Buyer. All interest earned thereon shall become part of the Earnest
Money and shall be applied or disposed of in the same manner as the original Earnest Money
deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in
accordance with the terms and the provisions hereof, the Earnest Money, together with all
interest earned thereon, shall be applied to the Purchase Price at Closing. In all other events, the
Earnest Money, and the interest accrued thereon, shall be disposed of by the Title Company as
Contract of Sale
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provided in this Contract.
2.03 Independent Contract Consideration. Within fourteen (14) calendar days after the
Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One
Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which
amount the parties hereby acknowledge and agree has been bargained for and agreed to as
consideration for Seller's execution and delivery of the Contract. The Independent Contract
Consideration is in addition to, and independent of any other consideration or payment provided
in this Contract, is non-refundable, and shall be retained by Seller notwithstanding any other
provision of this Contract.
ARTICLE III
TITLE AND SURVEY
3.01 Title Commitment.
(a) Within twenty (20) calendar days after the Effective Date, Seller, at Seller's sole cost and
expense, shall cause to be furnished to Buyer a current Commitment for Title Insurance
(the "Title Commitment") for the Property, issued by Title Company. The Title
Commitment shall set forth the state of title to the Property, including a list of liens,
mortgages, security interests, encumbrances, pledges, assignments, claims, charges,
leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed
mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive
covenants, exceptions, easements (temporary or permanent), rights-of-way,
encroachments, or any other outstanding claims, interests, estates or equities of any
nature (each of which are referred to herein as an "Exception").
(b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at
Seller's sole cost and expense, true and correct copies of all instruments that create or
evidence Exceptions, including those described in the Title Commitment as exceptions to
which the conveyance will be subject and/or which are required to be released or cured at
or prior to Closing.
3.02 Survey. Within thirty (30) calendar days after the Effective Date, Buyer may cause to be
prepared at Buyer's expense, a current on the ground ALTA survey of the Property (the
"Survey"). The Survey may include but not be limited to, a depiction of the location of all
roads, streets, easements and rights of way, both on and adjoining the Property, water courses,
100 year flood plain, fences and improvements and structures of any kind. The Survey may
further describe the size of the Property, in acres, and contain a metes and bounds description
thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances,
and/or resolutions or amended or revised survey(s) as required by the Title Company in order to
amend the survey exception as required by Section 3.05, below and/or to delete other Exceptions
related to matters depicted or not depicted in the Survey. The description of the Property as set
forth in the Survey, at the Buyer's election, shall be used to describe the Property in the deed to
convey the Property to Buyer and shall be the description set forth in the Title Policy.
Contract of Sale
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3.03 Review- of Title Commitment, Survey and Exception Documents. Buyer shall have a
period of fifteen (15) calendar clays (the "Title Review Period") commencing with the day Buyer
receives the last of the Title Commitment, the Survey, and the Exception documents, in which to
give written notice to Seller, specifying Buyer's objections to one or more of the items
("Objections"), if any. All items set forth in the Schedule C of the Title Conunitment, and all
other items set forth in the Title Commitment which are required to be released or otherwise
satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer.
3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within
twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the
Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the
Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the
foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or
Exceptions that have been voluntarily placed on or against the Property by Seller after the
Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to
cure within the allowed twenty (20) calendar day period, and if Buyer does not agree in writing
to an extension of that period, said extension to not exceed an additional thirty (30) days, then
Buyer has the option of either:
(a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to
Closing, in which event those Objections shall become Permitted Exceptions (herein so
called), or
(b) terminating this Contract by notice in writing prior to Closing and receiving back the
Earnest Money, in which latter event Seiler and Buyer shall have no further obligations,
one to the other, with respect to the subject matter of this Contract.
3.05 Title Policy. At Closing, Seller, at Seller's sole cost and expense, shall cause a standard
Texas Owner's Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title
Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring
that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted
Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no
other exceptions to title, with the standard printed or common exceptions amended or deleted as
follows:
(a) survey exception must be amended if required by Buyer to read "shortages in area" only
(although Schedule C of the Title Commitment may condition amendment on the
presentation of an acceptable survey and payment, to be borne solely by Seller, of any
required additional premium);
(b) no exception will be permitted for "visible and apparent easements" or words to that
effect (although reference may be made to any specific easement or use shown on the
Survey, if a Permitted Exception);
(e) no exception will be permitted for "rights of parties in possession";
Contract of Sale
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(d) no liens will be shown on Schedule B.
Notwithstanding the enumeration of the following exceptions, amendments and/or
deletions, Buyer may object to any Exception it deems material, in its sole discretion.
ARTICLE IV
FEASIBILITY REVIEW PERIOD AND IMPROVEMENTS
4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations
of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in
Buyer's sole and absolute discretion, during the period commencing with the Effective Date of
this Contract and ending forty eight (48) calendar days thereafter (the "Absolute Review
Period"), based on such tests, examinations (including intrusive examination, as deemed
necessary by Buyer), studies, investigations and inspections of the Property the Buyer deems
necessary or desirable, including but not limited to studies, assessments and/or inspections to
determine the existence of any environmental hazards or conditions in any environmental media,
performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes.
Buyer is granted the right to conduct engineering and/or market and economic feasibility studies
of the Property, and to conduct a physical inspection of the Property, including inspections that
invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that
the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may
terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in
any event prior to the expiration of the Absolute Review Period, in which case the Earnest
Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or
obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms
of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any and all non-
confidential and non-privileged reports and studies obtained by Buyer during the Absolute
Review Period; and (ii) the Survey.
ARTICLE V
REPRESENTATIONS WARRANTIES COVENANTS AND
AGREEMENTS
5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract
and consummate the sale and purchase of the Property in accordance with the terms and
provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of
the Closing Date, except where specific reference is made to another date, that:
(a) The descriptive information concerning the Property set forth in this Contract is
complete, accurate, true and correct.
(b) There are no adverse or other parties in possession of the Property or any part thereof,
and no party has been granted any license, lease or other right related to the use or
possession of the Property, or any part thereof, except those described in the Leases, as
defined in Article V, Section 5.02(a).
Contract of Sale
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(e) The Seller has good and marketable fee simple title to the Property, subject only to the
Permitted Exceptions.
(d) The Seller (i) has the full right, power, and authority to sell and convey the Property as
provided in this Contract and to carry out Seller's obligations hereunder; and (ii) has
taken all actions necessary to authorize the party executing this Contract to bind, in all
respects, Seller to all terms and provisions hereof, and that such party possesses the
authority to execute this Contract and bind Seller hereto.
(e) The Seller has not received notice of, and has no other knowledge or information of, any
pending or threatened judicial or administrative action, or any action pending or
threatened by adjacent landowners or other persons against or affecting the Property,
including without limitation, Environmental Claims or claims related to Environmental-
Cleanup Liability, as those terms are defined below.
(f) The Seller has disclosed to Buyer in writing of any and all facts and circumstances
relating to the physical condition of the Property that may materially and adversely affect
the Property and operation or intended operation thereof, or any portion thereof, of which
Seller has knowledge.
(g) The Seller has paid or will pay on or before the Closing Date, all real estate and personal
property taxes, assessments, excises, and levies that are presently due, if any, which are
against or are related to the Property, or will be due as of the Closing, and the Property
will be subject to no such liens.
(h) Seller has not contracted or entered into any agreement with any real estate broker, agent,
finder, or any other party in connection with this transaction or taken any action which
would result in any real estate broker commissions or finder's fee or other fees payable to
any other party with respect to the transactions contemplated by this Contract, except a
3% commission to David Vanderlaan to be paid by Seller from Seller's funds at Closing.
(i) To the best of Seller's knowledge, there has not occurred the disposal or Release of any
Chemical Substance on or from the Property that could result in any Environmental
Claim or Environmental Cleanup Liability, as those terms are defined below.
5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as
follows:
(a) Unless stated otherwise, prior to the Effective Date hereof, or within ten (10) days after
the Effective Date, Seller, at Seller's sole cost and expense, shall deliver to Buyer, with
respect to the Property, true, correct, and complete copies of the following:
(i) All lease agreements and/or occupancy agreements and/or licenses of any kind or
nature (if oral, Seller shall provide to Buyer in writing all material terms thereof)
relating to the possession of the Property, or any part thereof, including any and
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all modifications, supplements, and amendments thereto (the "Leases").
(ii) All environmental audits, soil tests and engineering and feasibility reports,
including any and all modifications, supplements and amendments thereto, with
respect to the Property that Seller possesses or has the right to receive.
(b) From the Effective Date until the date of Closing or earlier termination of this Contract,
Seller shall:
(i) Not enter into any written or oral contract, lease, easement or right of way
agreement, conveyance or any other agreement of any kind with respect to, or
affecting, the Property that will not be fully performed on or before the Closing or
would be binding on Buyer or the Property after the date of Closing.
(ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing
concerning or affecting the Property.
(iii) Not take, or omit to take, any action that would result in a violation of the
representations, warranties, covenants, and agreements of Seller.
(iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the
Property, or create, or permit to exist, any lien, encumbrance, or charge thereon.
(c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all
loss, liability, and expense, including, without limitation, reasonable attorneys' fees,
arising or incurred as a result of any liens or claims resulting from labor or materials
furnished to the Property under any written or oral contracts arising or entered into prior
to Closing.
(d) Environmental Indemnity. TO THE FULLEST EXTENT PERMITTED BY LAW,
SELLER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS BUYER, AND ITS
RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AGENTS, SUCCESSORS
AND ASSIGNS, FROM AND AGAINST ANY AND ALL ENVIRONMENTAL CLAIMS
AND ENVIRONMENTAL CLEANUP LIABILITY, AS DEFINED BELOW, WHICH ARISE
DIRECTLY OR INDIRECTLY FROM OR ARE RELATED TO THE USE, OPERATION,
MAINTENANCE, OCCUPATION, OWNERSHIP OR ABANDONMENT OF THE
PROPERTY (I) BEFORE THE DATE OF CLOSING, INCLUDING WITHOUT
LIMITATION, THE ABOVE DESCRIBED EVENTS CAUSED, OR CONTRIBUTED TO, IN
WHOLE OR IN PART, BY THE NEGLIGENCE OF ANY KIND, TYPE, OR DEGREE, OR
FAULT OF BUYER, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS,
AGENTS, SUCCESSORS AND /OR ASSIGNS; AND (II) AFTER THE DATE OF CLOSING,
IF CAUSED OR CONTRIBUTED TO, IN WHOLE OR PART, BY SELLER, OR SELLER'S
EMPLOYEES, AGENTS, CONTRACTORS. SELLER FURTHER COVENANTS AND
AGREES TO DEFEND ANY SUITS OR ADMINISTRATIVE PROCEEDINGS BROUGHT
AGAINST BUYER, AND ITS RESPECTIVE OFFICERS, ELECTED OFFICIALS,
EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS, ON ACCOUNT OF ANY SUCH
Contract of Sale
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ENVIRONMENTAL CLAIMS OR ENVIRONMENTAL CLEANUP LIABILITY AND TO
PAY OR DISCHARGE THE FULL AMOUNT OR OBLIGATION OF SUCH
ENVIRONMENTAL CLAIMS OR ENVIRONMENTAL CLEANUP LIABILITY INCURRED
BY, ACCRUING TO OR IMPOSED ON BUYER AND/OR ITS RESPECTIVE OFFICERS,
ELECTED OFFICIALS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS, AS
APPLICABLE, RESULTING FROM ANY SUCH SUIT OR SUITS, OR ADMINISTRATIVE
PROCEEDINGS, AND ANY AMOUNTS RESULTING FROM THE SETTLEMENT OR
RESOLUTION OF SUCH SUIT OR SUITS OR ADMINISTRATIVE PROCEEDINGS. IN
ADDITION, SELLER SHALL PAY TO BUYER, AND/OR ITS RESPECTIVE OFFICERS,
ELECTED OFFICIALS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS, AS
APPLICABLE, REASONABLE ATTORNEYS' FEES INCURRED BY BUYER, AND/OR
ITS RESPECTIVE OFFICERS, ELECTED OFFICIALS, EMPLOYEES, AGENTS,
SUCCESSORS AND ASSIGNS, AS APPLICABLE, IN ENFORCING SELLER'S
INDEMNITY IN THIS ARTICLE V.
As used in this Contract:
(i) "Arises." An Environmental Claim or Environmental Cleanup Liability shall be
deemed to Arise upon each discrete Release of a Chemical Substance.
(ii) "Chemical Substances" shall mean any chemical substance or substances that
constitute any sort of pollutants, contaminants, chemicals, raw materials, metals,
intermediates, products, industrial, solid, toxic or hazardous substances, materials,
wastes, asbestos, asbestos-containing materials, polychlorinated biphenyls, or petroleum
products, including crude oil or any derived product or component thereof, including,
without limitation, gasoline and any material or substance of any kind containing any of
the above.
(iii) "Environmental Claim" shall mean any claim, demand, action, suit or proceeding
for the injury, disease or death of any person (including, without limitation, the Seller, or
Seller's successors, assigns, employees, agents and/or representatives), property damage,
damage to the environment, or damage to natural resources made, arising or alleged to
arise under, or relating to, any Environmental Law. Environmental Claim includes any
damages, settlement amounts, fines and penalties assessed or costs of complying with any
orders or decrees of courts, administrative tribunals or other governmental entities
associated with resolving such claims, demands, actions, suits or proceedings and any
costs, expenses and fees, including, without limitation, reasonable attorney's fees,
incurred in the investigation, defense and resolution of such claims, demands, actions,
suits and proceedings.
(iv) "Environmental Cleanup Liability" shall mean any reasonable and necessary cost
or expense of any nature whatsoever incurred to investigate, contain, remove, remedy,
respond to, remediate, clean up, or abate any Release of Chemical Substances or other
contamination or pollution of the air, surface water, groundwater, land surface or
subsurface strata, which shall be deemed to include, without limitation, any cost or
expense related to any activity prescribed or required (including those the subject of a
Contract of Sale
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Settlement) by any governmental agency or other entity with jurisdiction over such
matters, related to the operation, occupation, use, maintenance, abandonment or
ownership of the Property, whether such Release, contamination or pollution is located
on, within, under or above the Property or is located on, within, under or above any other
lands or property including, but not limited to, any Release of Chemical Substances or
other contamination or pollution arising out of or resulting from the manufacture,
generation, formulation, processing, labeling, distribution, introduction into environment
or commerce, or on site or off site use, treatment, handling, storage, disposal, or
transportation of any Chemical Substance. Environmental Cleanup Liability includes,
without limitation, any judgments, damages, settlements, reasonable and necessary costs
or expenses (including, without limitation, attorneys', consultants, and experts' fees and
expenses) which shall be deemed to include, without limitation, any cost or expense
prescribed or required by any governmental agency or other entity with jurisdiction over
such matters, incurred with respect to (i) any investigation, study, assessment, legal
representation, cost recovery by a governmental agency or third party, or monitoring or
testing in connection therewith, (ii) the Property, as a result of actions or measures
necessary to implement or effectuate any such containment, removal, remediation,
response, cleanup or abatement, and (iii) the resolution of such liabilities.
(v) "Environmental Law" means any statutes or legal requirements relating to or
regulating pollution, worker, employee and occupational safety and health, protection or
cleanup of the environment or damage to or remediation of damage to real property and
natural resources (including, but not limited to ambient air, surface water, groundwater,
and land surface or subsurface strata) including, without limitation, legal requirements
contained in the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. § 9601, et seq., as amended (CERCLA); the Resources Conservation and
Recovery Act, 42 U.S.C. § 6901, et seq., as amended (RCRA); the Superfund
Amendments and Reauthorization Act of 1986, Pub. L. 99-499, as amended (SARA); the
Clean Air Act, 42 U.S.C. § 7401, et seq., as amended; the Federal Water Pollution
Control Act, 33 U.S.C. § 1251, et seq., as amended; the National Environmental Policy
Act, 42 U.S.C. § 4321, et seq., as amended (NEPA); and the Safe Drinking Water Act, 42
U.S.C. § 300f, et seq., as amended; and/or any other federal, state or local laws, statutes,
ordinances, rules, regulations or orders (including decisions of any court or
administrative body) relating to pollution, worker, employee and occupational safety and
health, damage to and protection or cleanup of, the environment, real property and/or
natural resources as described above. Environmental Law shall also mean the Toxic
Substance Control Act, 15 U.S.C. § 2601, et seq., as amended (TOSCA), and/or any other
federal, state (including, without limitation, laws with respect to trespass, nuisance and
other torts or similar legal theories which may be applied to establish liability or
responsibility for Environmental Cleanup or Environmental Claims) or local laws,
statutes, ordinances, rules, regulations or orders (including decisions of any court or
administrative body) relating to (i) release, containment, removal, remediation, response,
cleanup or abatement of any sort of Chemical Substance, (ii) the manufacture, generation,
formulation, processing, labeling, distribution, introduction into environment or
commerce, use, treatment, handling, storage, disposal or transportation of any Chemical
Substance, (iii) exposure of persons, including agents, contractors and employees of
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Seller, to any Chemical Substance and other occupational safety or health matters, or (iv)
the environmental hazards relating to the physical structure or condition of a building,
facility, tank, fixture or other structure, including, without limitation, those relating to the
management, use, storage, disposal, cleanup or removal of any Chemical Substance.
(vi) "Release" shall mean any spilling, leaking, pumping, pouring, emitting, spraying,
emptying, discharging, escaping, leaching, dumping or disposing, in any way, manner or
form, of any Chemical Substance into the environment (including, but not limited to, the
ambient air, surface water, groundwater and/or land surface or subsurface strata) of any
kind whatsoever (including without limitation the abandonment or temporary
abandonment or discarding of barrels, containers, tanks or other receptacles containing or
previously containing any Chemical Substance).
(vii) "Settlement" shall mean any compromise or written resolution of any claim or
matter that is agreed to by Seller and Buyer and any third party.
5.03 Covenants and Agreements of Buyer and Seller. Buyer and Seller covenant and agree
with the other as follows:
(a) At Closing, Buyer shall temporarily lease to the Seller, and the Seller shall temporarily
lease from Buyer, the entirety of the Property, upon the terms and conditions set forth in the form
of the Temporary Lease (herein so called), as attached hereto as Exhibit "B".
(b) Seller shall remove all of Seller's personal property, trade fixtures and any other property
of Seller, excepting the buildings, structures, improvements and other facilities that are fixtures,
other than trade fixtures, to the Land ("the Fixtures"), (Seller's property described above, less
the Fixtures, is herein called "Seller's Personal Property") from the Property on or before the
Termination Date (as defined in the Temporary Lease) of the Temporary Lease. Any of Seller's
Personal Property remaining on the Property after the Termination Date shall be deemed
Abandoned Property, as prescribed by Section E.19. of the Temporary Lease, and may be
disposed of by Buyer in any manner prescribed by the Temporary Lease. Further, Seller shall
execute and deliver to Buyer a written stipulation and waiver, on or before the Termination Date,
expressly stipulating that all of Seller's Personal Property has been removed from the Property
and waiving any and all rights Seller may have in or to such Property.
5.04 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this
Contract, the representations, warranties, covenants and agreements of Seller and the covenants
and agreements of Buyer contained in this Contract shall survive the Closing, and shall not, in
any circumstance, be merged with the General Warranty Deed, as described in Article VII,
Section 7.02(a).
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE
6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this
Contract unless, within the designated time periods, at Seller's sole cost and expense (except as
herein expressly provided to the contrary), all of the following shall have occurred:
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(a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to
be so performed or furnished under other sections of this Contract; and
(b) Seller cures or Buyer waives in writing, within the time periods specified in Article III,
all of Buyer's objections made in accordance with Article III.
6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer
is not obligated to perform under this Contract unless all representations, warranties, covenants
and agreements of Seller contained in this Contract are true and correct or have been performed,
as applicable, as of the Closing Date, except where specific reference is made to another date.
6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the date of
Closing, any portion of the Property has been condemned, or is the subject of condemnation,
eminent domain, or other material proceeding asserted by any third party, or the Property, or any
part thereof, has been materially or adversely impaired in any manner.
6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers
notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property
is unsuitable to or for Buyer's purposes.
6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in
this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions
precedent to the performance of Buyer's obligations under this Contract by giving to the Seller,
at any time prior to Closing, a written waiver specifying the waived condition precedent.
6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the
conditions precedent to the performance of Buyer's obligations under this Contract have not
been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to
Seller, terminate this Contract- On Buyer's termination, the Earnest Money shall be immediately
returned to Buyer by the Title Company. The Seller shall, on written request from Buyer,
promptly issue the instructions necessary to instruct the Title Company to return to Buyer the
Earnest Money and, thereafter, except as otherwise provided in this Contract, Buyer and Seller
shall have no further obligations under this Contract, one to the other.
ARTICLE VII
CLOSING
7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices
of the Title Company and shall be accomplished through an escrow to be established with the
Title Company, as escrowee. The Closing Date (herein sometimes called), shall occur ten (10)
days following the completion of all conditions precedent to Buyer's performance of this
Contract, as set forth in Article VI, hereof; but no later than August 31, 2011, or as mutually
agreed upon by Buyer and Seller.
7.02 Items to be Delivered at the Closing.
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(a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title
Company, at the expense of the parry designated herein, the following items:
(i) The Title Policy, in the form specified in Article III, Section 3.05;
(ii) The General Warranty Deed, substantially in the form as attached hereto as
Exhibit "C", subject only to the Permitted Exceptions, if any, duly executed by
Seiler and acknowledged;
(iii) The Temporary Lease, in the form as attached hereto as Exhibit "B", duly
executed by Seller and acknowledged; and
(iv) Other items reasonably requested by the Title Company as administrative
requirements for consummating the Closing.
(b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the following
items:
(i) The sum required by Article II, Section 2.01, less the Earnest Money and interest
earned thereon, in the form of certified or cashier's check or other immediately
available funds;
(ii) The Temporary Lease, in the form attached hereto as Exhibit "B", duly executed
by Buyer and acknowledged; and
(iii) Other items reasonably requested by the Title Company as administrative
requirements for consummating the Closing.
7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this
Contract, the provisions of this Article VII, Section 7.03 shall survive the Closing. The
following item shall be adjusted or prorated between Seller and Buyer with respect to the
Property:
(a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall
occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual
amount of taxes for the calendar year in which the Closing shall occur is not known as of
the Closing Date, the proration at Closing shall be based on the amount of taxes due and
payable with respect to the Property for the preceding calendar year. As soon as the
amount of taxes levied against the Property for the calendar year in which Closing shall
occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by
each party with the result that Seller shall pay for those taxes attributable to the period of
time prior to the Closing Date (including, but not limited to, subsequent assessments for
prior years due to change of land usage or ownership) and Buyer shall pay for those taxes
attributable to the period of time commencing with the Closing Date.
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7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing,
subject to the Temporary Lease.
7.05 Costs of Closing. Each party is responsible for paying the legal fees of its counsel, in
negotiating, preparing, and closing the transaction contemplated by this Contract. Seller is
responsible for paying fees, costs and expenses identified herein as being the responsibility of
Seller. Buyer is responsible for paying fees, costs, expenses identified herein as being the
responsibility of Buyer. If the responsibility for such costs or expenses associated with closing
the transaction contemplated by this Contract are not identified herein, such costs or expenses
shall be allocated between the parties in the customary manner for closings of real property
similar to the Property in Denton County, Texas.
ARTICLE VIII
DEFAULTS AND REMEDIES
8.01 Seller's Defaults and Buyer's Remedies.
(a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or
more of the following events:
(i) Any of Seller's warranties or representations contained in this Contract are untrue
on the Closing Date; or
(ii) Seller fails to meet, comply with or perform any covenant, agreement, condition
precedent or obligation on Seller's part required within the time limits and in the
manner required in this Contract; or
(iii) Seller fails to deliver at Closing, the items specified in Article VII, Section
7.02(x) of this Contract for any reason other than a default by Buyer or
termination of this Contract by Buyer pursuant to the terms hereof prior to
Closing.
(b) Buyer's Remedies. If Seller is in default under this Contract, Buyer at Buyer's sole
option, do any one or more of the following:
(i) Terminate this Contract by written notice delivered to Seller in which event the
Buyer shall be entitled to a return of the Earnest Money, and Seller shall,
promptly on written request from Buyer, execute and deliver any documents
necessary to cause the Title Company to return to Buyer the Earnest Money; or
(ii) Enforce specific performance of this Contract against Seller, requiring Seller to
convey the Property to Buyer subject to no liens, encumbrances, exceptions, and
conditions other than those shown on the Title Commitment whereupon Buyer
shall waive title objections, and be entitled to assert rights for damages based on
Seller's representations, warranties and obligations that are not expressly waived
by Buyer; or
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(iii) Seek any other recourse, remedy or relief as may be available to Buyer at law,
contract, equity or otherwise.
8.02 Buyer's Default and Seller's Remedies.
(a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at
Closing, the items specified in Article VII, Section 7.02(b) of this Contract for any
reason other than a default by Seller under this Contract or termination of this Contract
pursuant to the terms hereof prior to Closing.
(b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and
exclusive remedy for the default, may terminate this Contract by written notice delivered
to Buyer in which event the Seller shall be entitled to retain the Earnest Money, and
Buyer shall, promptly on written request from Seller, execute and deliver any documents
necessary to cause the Title Company to return to Seller the Earnest Money.
8.03 Return of Earnest Money Deposit. On the occurrence of any event deemed by Buyer to
be a default by Seller under this Contract, the Earnest Money, together with the interest thereon,
shall be immediately returned to the Buyer by the Title Company. If the Earnest Money is
properly returnable to Buyer in accordance with this Article VIII, Section 8.03, then Seller
shall, promptly on written request from Buyer, execute and deliver any documents necessary to
cause the Title Company to return to Buyer the Earnest Money.
ARTICLE IX
MISCELLANEOUS
9.01 Notice. All notices, demands, requests, and other communications required hereunder
shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) the date
provided if provided by telephonic facsimile, and (b) on the date of the deposit of, in a regularly
maintained receptacle for the United States Mail, registered or certified, return receipt requested,
postage prepaid, addressed as follows:
SELLER:
Black Bear Properties, LLC.
4001 East McKinney Street
Denton, TX 76205-4608
Copies to:
BUYER:
City of Denton
Paul Williamson
Real Estate and Capital Support
901-A Texas Street
Denton, Texas 76209
Telecopy: (940) 349-8951
For Seller: For Buyer:
Richard Casner, Deputy City Attorney
City Attorney's Office
215 E. McKinney
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Denton, Texas 76201
Telecopy: (940) 382-7923
9.02 Governing Law and Venue. THIS CONTRACT IS BEING EXECUTED AND
DELIVERED AND IS INTENDED TO BE PERFORMED IN THE STATE OF TEXAS, THE
LAWS OF TEXAS GOVERNING THE VALIDITY, CONSTRUCTION, ENFORCEMENT
AND INTERPRETATION OF THIS CONTRACT. THIS CONTRACT IS PERFORMABLE
IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT
HERETO, SHALL LIE IN DENTON COUNTY, TEXAS.
9.03 Entirety and Amendments. This Contract embodies the entire agreement between the
parties and supersedes all prior agreements and understandings, if any, related to the Property,
and may be amended or supplemented only in writing executed by the party against whom
enforcement is sought.
9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and
Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to
execute, acknowledge and record a memorandum of this Contract in the Real Property Records
of Denton County, Texas, imparting notice of this Contract to the public.
9.05 Risk of Loss. If any damage or destruction to any improvement located on the Land
shall occur prior to Closing or if any third party condemnation or eminent domain proceedings
are threatened or initiated that might result in the taking of any portion of the Property, Buyer
may, at Buyer's option, do any of the following:
(a) Terminate this Contract and withdraw from this transaction without cost, obligation or
liability, in which case the Earnest Money shall be immediately returned to Buyer; or
(b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be
entitled to receive any (i) in the case of damage or destruction, any insurance proceeds,
together with the deductible amount under Seller's policy or policies; and (ii) in the case
of eminent domain, proceeds paid for the Property related to the eminent domain
proceedings. If Buyer makes this election, the Closing shall be held on the tenth (10)
calendar day after election is made to close and receive the proceeds described herein.
Buyer shall have a period of ten (10) days after receipt of written notification from Seller on the
final settlement of all condemnation proceedings or insurance claims related to damage or
destruction of any improvement located on the Property, in which to make Buyer's election.
9.06 Further Assurances. In addition to the acts and deeds recited in this Contract and
contemplated to be performed, executed and/or delivered by Seller and Buyer, Seller and Buyer
agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at
the Closing or after the Closing, any fiurther deeds, acts, and assurances as are reasonably
necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the
contrary contained in this Contract, the provisions of this Article IX, Section 9.05 shall survive
Closing.
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9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of
the essence with respect to this Contract.
9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are
incorporated in and made a part of, this Contract for all purposes.
9.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken
by Buyer under this Contract are hereby delegated by Buyer, pursuant to action by the City
Council of Denton, Texas, to the City Engineer, or his designee.
9.10 Expiration of Offer. The execution of this Contract by Seller constitutes, subject to the
terms hereof, an irrevocable offer to sell the Property to Buyer.,Unless by 5:00' p.m. on July 13,
2011, this Contract is accepted by Buyer by action of the City Council of Buyer the offer of this
Contract shall be automatically revoked and terminated.
SELLER:
BLACK BEAR PROPERTIES, LLC., a,Tekas limited liability company
By: NIBSTONE MANAGEMENT, a,Texas'limited °liability, company, Manager
By;
GENE NIBLETT, MANAGER.
Executed by Seller on the day-of ~I 2011.
BUYER:
By:
GEORGE C. CAMPBELL, CITY MANAGER
Executed by Buyer on the day of
2011.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: ~=;x L_~
Contract of Sale
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RECEIPT OF AGREEMENT BY TITLE COMPANY
By its execution below, Title Company acknowledges receipt of an executed copy of this
Contract. Title Company agrees to comply with, and be bound by, the terms and provisions of
this Contract and to perform its duties pursuant to the provisions of this Contract and comply
with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and
as further set forth in any regulations or forms promulgated thereunder.
TITLE COMPANY:
Title Resources
1112 Dallas Drive, Suite 402
Denton, Texas 76205
By:
Printed Name:
Title:
Contract receipt date: , 2011
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EXHIBIT "A"
to
Contract of Sale
Legal Description
4.024 ACRES
BEING ALL THAT CERTAIN TRACT OR PARCEL OF LAND SITUATED IN THE CITY AND COUNTY OF DENTON, STATE OF
TEXAS AND BEING IN THE M. FORREST SURVEY ABSTRACT NUMBER 417 AND BEING PART OF A TRACT OF LAND
DESCRIBED IN A DEED FROM D.B. BOYD AND WIFE, MARIE BOYD TO TROY D. GLENN AND SYLVA JO GLENN AS
RECORDED IN VOLUME 389, PAGE 144 OF THE DEED RECORDS OF DENTON COUNTY, TEXAS, AND BEING A PART OF A
TRACT OF LAND DESCRIBED AS FIRST TRACT AND SECOND TRACT AS DESCRIBED IN A DEED FROM JOHN G.
FREEMAN AND WIFE, EVELYN FREEMAN TO TROY D. GLENN AS RECORDED IN VOLUME 1765, PAGE 964 OF THE REAL
PROPERTY RECORDS OF DENTON COUNTY, TEXAS, AND BEING PART OF A TRACT OF LAND DESCRIBED IN A DEED
FROM MATTIE IRENE CARPENTER TO TROY D. GLENN AS RECORDED IN VOLUME 1108, PAGE 608 OF THE DEED
RECORDS OF DENTON COUNTY, TEXAS,
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A CAPPED W IRON ROD SET FOR THE SOUTHWEST CORNER OF THE HEREIN DESCRIBED TRACT
AND BEING IN THE NORTHERLY R.O.W. LINE OF E. MCKINNEY STREET AND THE EAST LINE OF MAYHILL ROAD;
THENCE NORTH 00 DEGREES 08 MINUTES 57 SECONDS WEST WITH THE EAST LINE OF MAYHILL ROAD A DISTANCE
OF 305.69 FEET TO A CAPPED W IRON ROD SET FOR THE NORTHWEST CORNER OF THE HEREIN DESCRIBED
TRACT AND BEING THE SOUTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED FROM MARINE
PLASTICS, INC. TO CARL L. BEAUCHAMP AND WIFE, DONA J. BEAUCHAMP AS RECORDED IN VOLUME 3375, PAGE 893
OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS;
THENCE SOUTH 89 DEGREES 18 MINUTES 16 SECONDS EAST WITH SAID SOUTH LINE A DISTANCE OF 314.31 FEET
TO A CAPPED IRON ROD FOUND FOR THE SOUTHEST CORNER OF SAID BEAUCHAMP TRACT;
THENCE SOUTH 01 DEGREES 00 MINUTES 53 SECONDS WEST A DISTANCE OF 2.00 FEET TO A CAPPED 112' IRON
ROD SET FOR THE NORTHWEST CORNER OF SAID (VOLUME 1765, PAGE 964, SECOND TRACT);
THENCE SOUTH 76 DEGREES 58 MINUTES 22 SECONDS EAST WITH THE NORTH LINE OF SAID SECOND TRACT
PASSING AT 111.00 FEET THE NORTHEAST CORNER THEREOF AND CONTINUING ON SAID COURSE A TOTAL
DISTANCE OF 192.79 FEET TO A CAPPED W IRON ROD SET FOR THE NORTHEAST CORNER THE HEREIN DESCRIBED
TRACT;
THENCE SOUTH 01 DEGREES 00 MINUTES 53 SECONDS WEST A DISTANCE OF 370.51 FEET TO A CAPPED 112' IRON
ROD SET FOR THE SOUTHEAST CORNER OF THE HEREIN DESCRIBED TRACT AND BEING IN THE NORTHERLY R.O.W.
LINE OF E. MCKINNEY STREET;
THENCE NORTH 77 DEGREES 01 MINUTES 10 SECONDS WEST WITH THE NORTHERLY R.O.W. LINE OF E. MCKINNEY
STREET A DISTANCE OF 507.70 FEET TO THE POINT OF BEGINNING AND ENCLOSING 4.024 ACRES OF LAND MORE OR
LESS.
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EXHIBIT "B"
to
Contract of Sale
Temporary Lease
Basic Terms
Effective Date: August 31, 2011
Landlord: City of Denton, Texas
Landlord's Address: 215 E. McKinney, Denton, Texas 76201
Tenant: Black Bear Properties, LLC
Tenant's Address: 4001 East McKinney Street, Denton, Texas 76208
Premises - As described on Exhibit "A", attached hereto.
Term: Through and including April 30, 2012
Commencement Date: The Effective Date
Termination Date: (i) April 30, 2012; (ii) earlier termination of this Lease, as provided herein; or
(iii) surrender of the Premises by Tenant to Landlord, whichever is the earlier to occur.
Rent: The consideration for this Lease is Ten Dollars and No Cents ($10.0).
Permitted Use: Current manufacturing operation related to the manufacture of cast concrete
building products, and office and warehouse related to same, and no other uses.
Tenant's Insurance: As required by Insurance Addendum, attached hereto as Exhibit "B"
Landlord's Insurance: None
Tenant's Rebuilding Obligations: If the Premises are damaged by fire or other elements to the
extent the Permitted Use may not continue absent repair, unless the Premises is repaired by
Tenant as provided in Section A.7., below, this Lease shall terminate.
Contract of Sale
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Definitions
"Arises." An Environmental Claim or Environmental Cleanup Liability shall be deemed
to Arise upon each discrete Release of a Chemical Substance.
"Chemical Substances" shall mean any chemical substance or substances that constitute
any sort of pollutants, contaminants, chemicals, raw materials, metals, intermediates,
products, industrial, solid, toxic or hazardous substances, materials, wastes, asbestos,
asbestos-containing materials, polychlorinated biphenyls, or petroleum products,
including crude oil or any derived product or component thereof, including, without
limitation, gasoline and any material or substance of any kind containing any of the
above.
"Environmental Claim" shall mean any claim, demand, action, suit or proceeding for the
injury, disease or death of any person (including, without limitation, the Tenant, or
Tenant's successors, assigns, employees, agents and/or representatives), property
damage, damage to the environment, or damage to natural resources made, arising or
alleged to arise under, or relating to, any Environmental Law. Environmental Claim
includes any damages, settlement amounts, fines and penalties assessed or costs of
complying with any orders or decrees of courts, administrative tribunals or other
governmental entities associated with resolving such claims, demands, actions, suits or
proceedings and any costs, expenses and fees, including, without limitation, reasonable
attorney's fees, incurred in the investigation, defense and resolution of such claims,
demands, actions, suits and proceedings.
"Environmental Cleanup Liability" shall mean any reasonable and necessary cost or
expense of any nature whatsoever incurred to investigate, contain, remove, remedy,
respond to, clean up, or abate any Release of Chemical Substances or other
contamination or pollution of the air, surface water, groundwater, land surface or
subsurface strata, which shall be deemed to include, without limitation, any cost or
expense related to any activity prescribed or required (including without limitation, those
the subject of a settlement) by any governmental agency or other entity with jurisdiction
over such matters, related to the operation, occupation, use, maintenance, abandonment
or ownership of the Premises, whether such Release, contamination or pollution is
located on, within, under or above the Premises or is located on, within, under or above
any other lands or property including, but not limited to, any Release of Chemical
Substances or other contamination or pollution arising out of or resulting from the
manufacture, generation, formulation, processing, labeling, distribution, introduction into
environment or commerce, or on site or off site use, treatment, handling, storage,
disposal, or transportation of any Chemical Substance. Environmental Cleanup Liability
includes, without limitation, any judgments, damages, settlements, reasonable and
necessary costs or expenses (including, without limitation, attorneys', consultants, and
experts' fees and expenses), which shall be deemed to include, without limitation, any
cost or expense prescribed or required (including without limitation, those included in a
settlement) by any governmental agency or other entity with jurisdiction over such
Contract of Sale
Page 20 of 37
matters, incurred with respect to (i) any investigation, study, assessment, legal
representation, cost recovery by a governmental agency or third party, or monitoring or
testing in connection therewith, (ii) the Premises, as a result of actions or measures
necessary to implement or effectuate any such containment, removal, remediation,
response, cleanup or abatement, and (iii) the resolution of such liabilities.
"Environmental Law" means any statutes or legal requirements relating to or regulating
pollution, worker, employee and occupational safety and health, protection or cleanup of
the environment or damage to or remediation of damage to real property and natural
resources (including, but not limited to, ambient air, surface water, groundwater, and land
surface or subsurface strata) including, without limitation, legal requirements contained
in the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. § 9601, et seq., as amended (CERCLA); the Resources Conservation and
Recovery Act, 42 U.S.C. § 6901, et seq., as amended (R.CRA); the Superfund
Amendments and Reauthorization Act of 1986, Pub. L. 99-499, as amended (SARA); the
Clean Air Act, 42 U.S.C. § 7401, et seq., as amended; the Federal Water Pollution
Control Act, 33 U.S.C. § 1251, et seq., as amended; the National Environmental Policy
Act, 42 U.S.C. § 4321, et seq., as amended (NEPA); and the Safe Drinking Water Act, 42
U.S.C. § 300f, et seq., as amended; and/or any other federal, state or local laws, statutes,
ordinances, rules, regulations or orders (including decisions of any court or
administrative body) relating to pollution, worker, employee and occupational safety and
health, damage to and protection or cleanup of, the environment, real property and/or
natural resources as described above. Environmental Law shall also mean the Toxic
Substance Control Act, 15 U.S.C. § 2601, et seq., as amended (TOSCA), and/or any other
federal, state (including, without limitation, laws with respect to trespass, nuisance and
other torts or similar legal theories which may be applied to establish liability or
responsibility for Environmental Cleanup or Environmental Claims) or local laws,
statutes, ordinances, rules, regulations or orders (including decisions of any court or
administrative body) relating to (i) release, containment, removal, remediation, response,
cleanup or abatement of any sort of Chemical Substance, (ii) the manufacture, generation,
formulation, processing, labeling, distribution, introduction into environment or
commerce, use, treatment, handling, storage, disposal or transportation of any Chemical
Substance, (iii) exposure of persons, including agents, contractors and employees of
Tenant, to any Chemical Substance and other occupational safety or health matters, or
(iv) the environmental hazards relating to the physical structure or condition of a
building, facility, tank, fixture or other structure, including, without limitation, those
relating to the management, use, storage, disposal, cleanup or removal of any Chemical
Substance.
"Injury" means (a) damage, harm to or impairment or loss of property or its use,
including without limitation, personal property, real property and/or natural resources,
and (b) harm to or death of a person.
"Landlord" means Landlord and its elected officials, agents, employees, invitees,
licensees, or visitors.
Contract of Sale
Page 21 of 37
"Release" shall mean any spilling, leaking, pumping, pouring, emitting, spraying,
emptying, discharging, escaping, leaching, dumping or disposing, in any way, manner or
form, of any Chemical Substance into the environment (including, but not limited to, the
ambient air, surface water, groundwater and/or land surface or subsurface strata) of any
kind whatsoever (including without limitation the abandonment or temporary
abandonment or discarding of barrels, containers, tanks or other receptacles containing or
previously containing any Chemical Substance).
"Tenant" means Tenant and its agents, contractors, employees, invitees, licensees, or
visitors.
Clauses and Covenants
A. Tenant agrees to:
1. Lease the Premises for the entire Term beginning on the Commencement
Date and ending on the earlier to occur of (i) Termination Date; or (ii) upon surrender of
the Premises by Tenant to Landlord prior to the Termination Date.
2. ACCEPT THE PREMISES IN THEIR PRESENT CONDITION "AS IS,"
"WHERE IS" AND "WITH ALL FAULTS". TENANT STIPULATES THAT IT HAS
THOROUGHLY INSPECTED THE PREMISES AND FINDS THAT THE PREMISES
IS CURRENTLY SUITABLE FOR THE PERMITTED USE. LANDLORD MAKES
NO REPRESENTATION, COVENANTS OR WARRANTIES, EXPRESSED,
IMPLIED OR OF ANY KIND OR NATURE CONCERNING OR WITH RESPECT TO
THE PREMISES, INCLUDING WITHOUT LIMITATION,. WARRANTIES OF
MERCHANTABILITY, QUALITY, HABITABILITY, SUITABILITY, OR FITNESS
FOR PARTICULAR PURPOSE OR USE. TENANT STIPULATES TO LANDLORD
THAT IT HAS PREVIOUSLY OCCUPIED THE PREMISES AND IS AWARE OF
THE CONDITION OF THE PROPERTY. TENANT REPRESENTS AND
WARRANTS TO LANDLORD THAT THERE ARE NO CHEMICAL SUBSTANCES
CONTAINED OR STORED OR THAT HAVE BEEN RELEASED IN OR ON THE
PREMISES THAT WOULD RESULT IN AN ENVIRONMENTAL CLAIM OR
ENVIRONMENTAL CLEANUP LIABILITY.
3. Obey (a) all applicable laws relating to the use, condition, and occupancy
of the Premises, and (b) any requirements imposed by utility companies serving or
insurance companies covering the Premises.
4. Obtain and pay for all utility services used by Tenant.
5. Pay all costs related to the utilities, of any kind or nature, related to the
Premises.
6. Allow Landlord to enter the Premises to perform Landlord's obligations, if
any, and inspect the Premises.
Contract of Sale
Page 22 of 37
7. Maintain the Premises in a good state of condition, normal wear and tear
excepted. Notwithstanding the obligation to maintain the Premises, if so desired by
Tenant, Tenant may repair and replace any and all parts of the Premises damaged during
the Term hereof, in its entirety. In the event Tenant does not desire to repair or replace
the Premises, it shall be under no obligation to do so but shall immediately surrender the
Premises and remit any proceeds or monies attributable to damage or loss of the
buildings, structures, improvements and other facilities that are fixtures to the Property,
received by Tenant from insurance coverage required herein to Landlord upon such
election. Tenant hereby expressly stipulates that Landlord is not obligated to repair,
replace, or maintain, any part or parcel of the Premises, including without limitation, roof
systems, HVAC systems, wall systems, foundations, windows, and doors.
8. Vacate, in its entirety, the Premises on or before the Termination Date.
Tenant shall remove all personal property, trade fixtures and any other property,
excepting the buildings, structures, improvements and other facilities that are fixtures,
other than trade fixtures, to the Premises (collectively, "Tenant's Personal Property")
owned by it from the Premises on or before the Termination Date or earlier termination
of this Temporary Lease, whichever is earlier to occur, and shall execute a written
stipulation and acknowledgement on such date (i) expressly stipulating that all such
property of Tenant has been removed from the Premises; and (ii) waiving any and all
rights the Tenant may have to the Premises and such property.
9. INDEMNIFY, DEFEND, AND HOLD LANDLORD HARMLESS
FROM ANY DAMAGE OR INJURY (AND ANY RESULTING OR RELATED
CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE, INCLUDING
ATTORNEY'S FEES AND OTHER FEES AND COURT AND OTHER COSTS)
CAUSED BY OR RELATED TO TENANT'S OCCUPANCY OF THE PREMISES,
TENANT'S DEFAULT UNDER THIS LEASE AND/OR OTHERWISE OCCURRING
IN OR RELATED TO ANY PORTION OF THE PREMISES.
9.A. TO THE FULLEST EXTENT PERMITTED BY LAW, TENANT
SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS LANDLORD, AND ITS
SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL
ENVIRONMENTAL CLAIMS AND ENVIRONMENTAL CLEANUP LIABILITY,
WHICH ARISE DIRECTLY OR INDIRECTLY FROM OR ARE RELATED TO THE
USE, OPERATION, MAINTENANCE, OCCUPATION, OWNERSHIP OR
ABANDONMENT OF THE PREMISES (I) BEFORE THE EFFECTIVE DATE,
INCLUDING WITHOUT LIMITATION, THE ABOVE DESCRIBED EVENTS
CAUSED, OR CONTRIBUTED TO, IN WHOLE OR IN PART, BY THE
NEGLIGENCE OF ANY KIND, TYPE, OR DEGREE, OR FAULT OF LANDLORD,
ITS SUCCESSORS AND /OR ASSIGNS; AND (II) AFTER THE EFFECTIVE DATE,
IF CAUSED OR CONTRIBUTED TO, IN WHOLE OR PART, BY TENANT.
TENANT FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR
ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST LANDLORD, ITS
SUCCESSORS AND ASSIGNS, ON ACCOUNT OF ANY SUCH ENVIRONMENTAL
CLAIMS OR ENVIRONMENTAL CLEANUP LIABILITY AND TO PAY OR
Contract of Sale
Page 23 of 37
DISCHARGE THE FULL AMOUNT OR OBLIGATION OF SUCH
ENVIRONMENTAL CLAIMS OR ENVIRONMENTAL CLEANUP LIABILITY
INCURRED BY, ACCRUING TO OR IMPOSED ON LANDLORD AND ITS
SUCCESSORS AND ASSIGNS, AS APPLICABLE, RESULTING FROM ANY SUCH
SUIT OR SUITS, OR ADMINISTRATIVE PROCEEDINGS, OR ANY AMOUNTS
RESULTING FROM THE SETTLEMENT OR RESOLUTION OF SUCH SUIT OR
SUITS OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION, TENANT SHALL
PAY TO LANDLORD, AND ITS SUCCESSORS AND ASSIGNS, AS APPLICABLE,
REASONABLE ATTORNEYS' FEES INCURRED BY LANDLORD, AND ITS
SUCCESSORS AND ASSIGNS, AS APPLICABLE, IN ENFORCING TENANT'S
INDEMNITY PROVIDED HEREIN.
9.13. THE INDEMNITIES CONTAINED IN PARAGRAPHS 9 AND 9A
ARE (A) INDEPENDENT OF TENANT'S INSURANCE, (B) WILL NOT BE
LIMITED BY COMPARATIVE NEGLIGENCE STATUTES OR DAMAGES
PAID UNDER THE WORKERS' COMPENSATION ACT OR SIMILAR
EMPLOYEE BENEFIT ACTS, (C) WILL SURVIVE THE END OF THE TERM,
AND (D) WILL APPLY EVEN IF AN INJURY OR DAMAGE IS CAUSED IN
WHOLE OR IN PART BY THE NEGLIGENCE (BUT SHALL NOT APPLY IN
THE CASE OF THE LANDLORD'S SOLE OR GROSS NEGLIGENCE) OF
LANDLORD.
10. During the term of this Lease, Tenant will not locate, store or dispose in or
on, or release or discharge from (including groundwater contamination) the Premises, any
Chemical Substances that could result in an Environmental Claim or Environmental
Cleanup Liability.
11. Tenant shall, at no cost or expense to Landlord, take all actions necessary
to comply with all Environmental Laws affecting the Premises.
12. Any of Tenant's Personal Property remaining on the Premises after the
Termination Date shall be deemed Abandoned Property, as prescribed by Section E.19.,
below, and may be disposed of by Landlord in any manner prescribed by Section E.19.,
below.
B. Tenant agrees not to:
1. Use the Premises for any purpose other than the Permitted Use.
2. Create a nuisance.
3. Permit any waste.
4. Use the Premises in any way that would increase insurance premiums or
void insurance on the Premises.
Contract of Sale
Page 24 of 37
5. Change the lock system of the Premises.
6. Alter the Premises.
7. Allow a lien to be placed on the Premises.
8. Assign this Lease or sublease any portion of the Premises.
C. Landlord agrees to:
1. Lease to Tenant the Premises for the entire Term beginning on the
Commencement Date and ending on the earlier to occur of (i) Termination Date, or (ii)
upon surrender of the Premises by Tenant to Landlord prior to the Termination Date.
D. Landlord agrees not to:
1. Interfere with Tenant's possession of the Premises as long as Tenant is not
in default hereunder.
E. Landlord and Tenant agree to the following:
1. Alterations. Any physical additions, improvements or alterations to the
Premises made by Tenant must be consented to by Landlord, in its sole and absolute
discretion.
2. Insurance. Tenant will maintain the insurance coverages described in the
attached Insurance Addendum during the Term of this Lease and, if coverage is afforded
on a Claims Made basis, for three (3) years thereafter, as concerns the Environmental
Liability coverage.
3. Release of Claims/Subrogation. TENANT RELEASES LANDLORD
FROM ANY AND ALL CLAIMS OR LIABILITIES FOR DAMAGE TO THE
PREMISES, DAMAGE TO OR LOSS OF PERSONAL PROPERTY WITHIN THE
PREMISES, AND LOSS. OF BUSINESS OR REVENUES INCIDENT TO, ARISING
FROM OR RELATED TO TENANT'S OCCUPATION OF THE PREMISES. THE
RELEASE IN THIS PARAGRAPH WILL APPLY EVEN IF THE DAMAGE OR
LOSS IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, OF ANY
KIND, TYPE OR DEGREE, OR STRICT LIABILITY OF THE LANDLORD BUT
WILL NOT APPLY TO THE EXTENT THE DAMAGE OR LOSS IS CAUSED
BY THE WILLFUL MISCONDUCT OF THE LANDLORD.
4. Casual4/Total or Partial Destruction. If the Premises are damaged by
casualty to the extent the Permitted Use may not continue absent repair, unless the
Premises is repaired by Tenant as provided in Section A.7., above, this Lease will
terminate without liability of any kind to Landlord.
Contract of Sale
Page 25 of 37
5. Condemnation/Substantial or Partial Taking
a. If the Premises cannot be used for the purposes contemplated by
this Lease because of condemnation or purchase in lieu of
condemnation by a third party, this Lease will terminate.
b. Tenant will have no claim to the condemnation award or proceeds
in lieu of condemnation.
6. Default by LandlordlEvents. Defaults by Landlord are failing to comply
with any provision of this Lease within thirty (30) calendar days after written notice.
7. Default by Landlor&Tenant's Remedies. Tenant's remedies for Landlord's
default are solely to either (i) enforce the terms of this Lease by specific performance; or
(ii) terminate this Lease. THE REMEDIES OF TENANT AS SET FORTH HEREIN
ARE SOLE AND EXCLUSIVE AND TENANT WAIVES ANY OTHER RIGHT OR
REMEDY THAT MIGHT BE AVAILABLE.
8. Default by Tenant/Events. Defaults by Tenant are (a) Tenant abandoning
or vacating a substantial portion of the Premises without surrendering the Premises to
Landlord, (b) Tenant failing to comply, within five (5) calendar days after written notice,
with any provision of this Lease other than the default set forth in (a) above, which shall
require no notice of default to Tenant; (c) Tenant shall become insolvent, or shall make a
transfer in fraud of creditors, or shall make an assignment for the benefit of creditors; (d)
a receiver or trustee shall be appointed for all or substantially all of the assets of Tenant;
(e) Tenant shall file a voluntary petition in bankruptcy or admit in writing that it is unable
to pay its debts as they become due; (f) Tenant shall apply for or consent to the
appointment of a receiver, trustee, custodian, intervener or liquidator of itself or of all or
substantial part of its assets; (g) Tenant shall file an answer admitting the material
allegations of, or consent to, or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding; and (h) any of Tenant's
representations or warranties contained in this Lease are untrue at any time during the
Term.
9. Default by Tenant/Landlord's Remedies. Landlord's remedies for Tenant's
default are to (a) enter and take possession of the Premises, after which Landlord may
relet the Premises on behalf of Tenant and receive the rent directly by reason of the
reletting, and Tenant agrees to reimburse Landlord for any expenditures made in order to
reset; (b) enter the Premises and perform Tenant's obligations; and (c) terminate this
Lease by written notice and sue for damages. Landlord may enter and take possession of
the Premises pursuant to the exercise of any right or remedy, without prejudice to any
other right or remedy, available to it by law, contract, equity or otherwise.
10. Default/Waiver/Mitigation. It is not a waiver of default if the non-
defaulting party fails to declare immediately a default or delays in taking any action.
Except as to the sole and exclusive remedies of Tenant, pursuit of any remedies set forth
Contract of Sale
Page 26 of 37
in this Lease does not preclude pursuit of other remedies in this Lease or provided by
applicable law.
11. Holdover. If Tenant does not vacate the Premises following termination of
this Lease, Tenant will become a tenant at sufferance. No holding over by Tenant,
whether with or without the consent of Landlord, will extend the Term. Tenant stipulates
that its possession of the Premises after the expiration of the Term, as a tenant of
sufferance, will cause damage to Landlord in excess of fair market value of rent resulting,
in part, due to delays to Landlord construction projects.
12. Lease of Commercial Rental Property. Tenant represents and warrants
that the Premises is commercial rental property, as defined in Chapter 93 of the Texas
Property Code.
13. Attorneys Fees. If either party retains an attorney to enforce this Lease,
the party prevailing in litigation is entitled to recover reasonable attorney's fees and other
fees and court and other costs.
14. Venue. EXCLUSIVE VENUE FOR ANY ACTION HEREUNDER IS IN
DENTON COUNTY, TEXAS, THE COUNTY IN WHICH THE PREMISES ARE
LOCATED.
15. Entire Agreement. This Lease, together with the attached exhibits and
addendums, comprises the entire agreement of the parties, and there are no oral
representations, warranties, agreements, or promises pertaining to this Lease or
occupation of the Premises.
16. Amendment of Lease. This Lease may be amended only by an instrument
in writing, duly authorized and signed by Landlord and Tenant. Notwithstanding
anything to the contrary herein, the authority to amend this Lease by Landlord is not
delegated by the City Council of Landlord.
17. Limitation of Warranties. THERE ARE NO IMPLIED WARRANTIES
OF MERCHANTABILITY, QUALITY, SUITABILITY, HABITABILITY, FITNESS
FOR A PARTICULAR PURPOSE, OR OF ANY OTHER KIND ARISING OUT OF
THIS LEASE, AND THERE ARE NO WARRANTIES THAT EXTEND BEYOND
THOSE EXPRESSLY STATED IN THIS LEASE.
18. Notices. Any notice given by one party to the other in connection with this Lease
shall be in writing and shall be sent by certified mail, return receipt requested, with postage fees
prepaid, or via facsimile as follows:
A. If to Landlord, addressed to:
City Manager
215 E. McKinney
Denton, Texas 76201
Contract of Sale
Page 27 of 37
Fax No. 940.349.8596
w/copy to:
Paul Williamson
Real Estate Manager
901 A Texas Street
Denton, Texas 76209
Fax No. 940.349.8951
B. If to Tenant, addressed to:
Black Bear Properties, LLC
Attn: Gene Nib lett
4001 East McKinney Street
Denton, Texas 76208
Fax No. 940.898.0918
Notice shall be deemed received for all purposes when placed in the United States mail,
as set forth herein, or when delivered by telephonic facsimile to the other party at the facsimile
number(s) provided above.
19. Abandoned Property. Landlord may retain, destroy, or dispose of any
property, of any kind or type, including without limitation, Tenant's Personal Property
left or remaining on the Premises after .the Termination Date ("Abandoned Property")
without liability of any kind to Landlord and without payment of consideration of any
kind to Tenant. In the event Landlord shall elect to store said Abandoned Property,
Landlord may store such Abandoned Property in the name and at the expense of Tenant.
20. No Broker. Tenant represents and warrants Landlord that it has not
contracted with or otherwise retained any broker or any other third party related to this
Lease to whom any commission or other fee may be payable.
21. Authority of Tenant. Tenant represents and warrants to Landlord that it
has taken all actions necessary to authorize the party executing this Lease to bind, in all
respects, Tenant to all terms and provisions of this Lease, and that such person possesses
the authority to execute this Lease and bind Tenant hereto.
22. Delegation of Authority. Except as otherwise expressly provided herein,
any action that is to be or may be taken by Landlord under this Lease is hereby delegated
by Landlord, pursuant to approval of this Lease by City Council of Landlord, to the City
Engineer of Landlord, or his designee.
TENANT:
BLACK BEAR PROPERTIES, LLC., a Texas limited liability company
By: NIBSTONE MANAGEMENT, a Texas limited liability company, Manager
By:
Contract of Sale
Page 28 of 37
GENE NiBLETT, MANAGER
Contract of Sale
Page 29 of 37
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on this day of
, 2011, by Gene Niblett, Manager of Nibstone Management, a Texas
limited liability company, Manager of Black Bear Properties, LLC., a Texas limited
liability company, on behalf of said limited liability company.
Notary Public, State of Texas
My commission expires:
BY:
CITY OF DENTON-LANDLORD
GEORGE C. CAMPBELL, CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
Contract of Sale
Page 30 of 37
STATE OF TEXAS
COUNTY OF
This instrument was acknowledged before me on this day of
2011, by George C. Campbell, City Manager of the City of Denton, on
behalf of the City of Denton.
Notary Public, State of Texas
My commission expires:
Contract of Sale
Page 31 of 37
EXHIBIT "A" to Temporary Lease
4.024 ACRES
BEING ALL THAT CERTAIN TRACT OR PARCEL OF LAND SITUATED IN THE CITY AND COUNTY OF
DENTON, STATE OF TEXAS AND BEING IN THE M. FORREST SURVEY ABSTRACT NUMBER 417 AND BEING
PART OF A TRACT OF LAND DESCRIBED IN A DEED FROM D.B. BOYD AND WIFE, MARIE BOYD TO TROY D.
GLENN AND SYLVA JO GLENN AS RECORDED IN VOLUME 389, PAGE 144 OF THE DEED RECORDS OF
DENTON COUNTY, TEXAS, AND BEING A PART OF A TRACT OF LAND DESCRIBED AS FIRST TRACT AND
SECOND TRACT AS DESCRIBED IN A DEED FROM JOHN G. FREEMAN AND WIFE, EVELYN FREEMAN TO
TROY D. GLENN AS RECORDED IN VOLUME 1765, PAGE 964 OF THE REAL PROPERTY RECORDS OF
DENTON COUNTY, TEXAS, AND BEING PART OF A TRACT OF LAND DESCRIBED IN A DEED FROM MATTIE
IRENE CARPENTER TO TROY D. GLENN AS RECORDED IN VOLUME 1108, PAGE 608 OF THE DEED
RECORDS OF DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A CAPPED W IRON ROD SET FOR THE SOUTHWEST CORNER OF THE HEREIN
DESCRIBED TRACT AND BEING IN THE NORTHERLY R.O.W. LINE OF E. MCKINNEY STREET AND THE
EAST LINE OF MAYHILL ROAD;
THENCE NORTH 00 DEGREES 08 MINUTES 57 SECONDS WEST WITH THE EAST LINE OF MAMLL ROAD
A DISTANCE OF 305.69 FEET TO A CAPPED W IRON ROD SET FOR THE NORTHWEST CORNER OF THE
HEREIN DESCRIBED TRACT AND BEING THE SOUTHWEST CORNER OF A TRACT OF LAND DESCRIBED
IN A DEED FROM MARINE PLASTICS, INC. TO CARL L. BEAUCHAMP AND WIFE, DONA J. BEAUCHAMP AS
RECORDED IN VOLUME 3375, PAGE 893 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY,
TEXAS;
THENCE SOUTH 89 DEGREES 18 MINUTES 16 SECONDS EAST WITH SAID SOUTH LINE A DISTANCE OF
314.31 FEET TO A CAPPED IA" IRON ROD FOUND FOR THE SOUTHEST CORNER OF SAID BEAUCHAMP
TRACT;
THENCE SOUTH 01 DEGREES 00 MINUTES 53 SECONDS WEST A DISTANCE OF 2.00 FEET TO A CAPPED
112' IRON ROD SET FOR THE NORTHWEST CORNER OF SAID (VOLUME 1765, PAGE 964, SECOND
TRACT);
THENCE SOUTH 76 DEGREES 58 MINUTES 22 SECONDS EAST WITH THE NORTH LINE OF SAID SECOND
TRACT PASSING AT 111.00 FEET THE NORTHEAST CORNER THEREOF AND CONTINUING ON SAID.
COURSE A TOTAL DISTANCE OF 192.79 FEET TO A CAPPED'/" IRON ROD SET FOR THE NORTHEAST
CORNER THE HEREIN DESCRIBED TRACT;
THENCE SOUTH 01 DEGREES 00 MINUTES 53 SECONDS WEST A DISTANCE OF 370.51 FEET TO A
CAPPED 112" IRON ROD SET FOR THE SOUTHEAST CORNER OF THE HEREIN DESCRIBED TRACT AND
BEING IN THE NORTHERLY R.O.W. LINE OF E. MCKINNEY STREET;
THENCE NORTH 77 DEGREES 01 MINUTES 10 SECONDS WEST WITH THE NORTHERLY R.O.W. LINE OF E.
MCKINNEY STREET A DISTANCE OF 507.70 FEET TO THE POINT OF BEGINNING AND ENCLOSING 4.024
ACRES OF LAND MORE OR LESS.
Contract of Sale
Page 32 of 37
Exhibit "B" to Temporary Lease
Insurance Addendum
Tenant shall procure and carry, at its sole cost and expense during the term of this
Lease and as otherwise may be provided in this Lease, insurance protection as hereinafter
specified, in form and substance satisfactory to Landlord, carried with an insurance
company (or companies) authorized to transact business in the state of Texas, covering all
aspects and risks of loss of all operations in connection with this Lease, including without
limitation, the indemnity obligations set forth herein.
Tenant shall obtain and maintain the following insurance coverages in full force
and effect during the term of this Lease, and if coverage is afforded on a Claims Made
basis, for three (3) years thereafter as concerns the Environmental Liability Coverage:
Commercial General Liability
Per Occurrence Limit:
Aggregate Limit:
$1,000,000
$2,000,000
Business Automobile Liability (providing coverage for owned, non-owned
and hired automobiles):
Per Occurrence Limit
Aggregate Limit:
$ 500,000
$1,000,000
Property Insurance:
All risk property coverage on all buildings, attachments and improvements,
including the contents of all buildings, attachments and improvements.
Contract of Sale
Page 33 of 37
Environmental Liability
Per Occurrence Limit: $1,000,000
Aggregate Limit: $2,000,000
The Landlord shall be listed as an Additional Insured with respect to the
Commercial General Liability and Business Automobile Liability and shall be granted a
waiver of subrogation under both policies. The Landlord shall be listed as an Additional
Insured and Loss Payee with respect to the Environmental Liability Coverage and a Loss
Payee with respect to the all risk property coverage. Tenant will provide a Certificate of
Insurance on or before the Effective Date of this Lease to the Landlord as evidence of
coverage. The Certificate will provide 30 days notice of cancellation. A copy of the
additional insured endorsement and waiver of subrogation attached to the policy will be
included in the certificate.
All insurance carriers must be admitted to do business in the state of Texas and
have an AM Best's Rating of A-VII or better.
All policies should be written on an occurrence basis. If a policy is written on a
"claims made" basis the Tenant shall provide evidence of continued coverage, or "tail
coverage" for a period of three (3) years following the expiration of this Lease.
Contract of Sale
Page 34 of 37
EXHIBIT "C"
to
Contract of Sale
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL
PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING
INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR
RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER
OR YOUR DRIVER'S LICENSE NUMBER.
GENERAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS
That Black Bear Properties, LLC, a Texas limited liability company (herein called
"Grantor"), for and in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY
OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called
"Grantee"), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which
are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and
by these presents does GRANT, SELL and CONVEY unto Grantee, all the real property
in Denton County, Texas being particularly described on Exhibit "A", attached hereto
and made a part hereof for all purposes, and being located in Denton County, Texas,
together with any and all rights or interests of Grantor in and to adjacent streets, alleys
and rights of way and together with all and singular the improvements and fixtures
thereon and all other rights and appurtenances thereto (collectively, the "Property").
This conveyance is subject to the following:
[Insert Permitted Exceptions, if any]
Contract of Sale
Page 35 of 37
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors
and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and
assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto
Grantee and Grantee's successors and assigns, against every person whomsoever lawfully
claiming or to claim the same or any part thereof.
EXECUTED the day of 52011.
BLACK BEAR PROPERTIES, LLC, a Texas limited liability company
By: NIBSTONE MANAGEMENT, a Texas limited liability company, Manager
By:
GENE NIBLETT, MANAGER
ACKNOWLEDGMENT
THE STATE OF §
COUNTY OF §
This instrument was acknowledged before me on this day of
2011, by Gene Niblett, Manager of Nibstone Management, a Texas
limited liability company, Manager of Black Bear Properties, LLC, a Texas limited
liability company, on behalf of said limited liability company.
Notary Public, State of Texas
My commission expires:
Contract of Sale
Page 36 of 37
EXHIBIT "A"
to
General Warranty Deed
Legal Description
4.024 ACRES
BEING ALL THAT CERTAIN TRACT OR PARCEL OF LAND SITUATED IN THE CITY AND COUNTY OF DENTON,
STATE OF TEXAS AND BEING IN THE M. FORREST SURVEY ABSTRACT NUMBER 417 AND BEING PART OF A
TRACT OF LAND DESCRIBED IN A DEED FROM D.B. BOYD AND WIFE, MARIE BOYD TO TROY D. GLENN AND
SYLVA JO GLENN AS RECORDED IN VOLUME 389, PAGE 144 OF THE DEED RECORDS OF DENTON COUNTY,
TEXAS, AND BEING A PART OF A TRACT OF LAND DESCRIBED AS FIRST TRACT AND SECOND TRACT AS
DESCRIBED IN A DEED FROM JOHN G. FREEMAN AND WIFE, EVELYN FREEMAN TO TROY D. GLENN AS
RECORDED IN VOLUME 1765, PAGE 964 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS,
AND BEING PART OF A TRACT OF LAND DESCRIBED IN A DEED FROM MATTIE IRENE CARPENTER TO TROY D.
GLENN AS RECORDED IN VOLUME 1108, PAGE 608 OF THE DEED RECORDS OF DENTON COUNTY, TEXAS,
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A CAPPED Y2- IRON ROD SET FOR THE SOUTHWEST CORNER OF THE HEREIN DESCRIBED
TRACT AND BEING IN THE NORTHERLY R.O.W. LINE OF E. MCKINNEY STREET AND THE EAST LINE OF
MAYHILL ROAD;
THENCE NORTH 00 DEGREES 08 MINUTES 57 SECONDS WEST WITH THE EAST LINE OF MAYHILL ROAD A
DISTANCE OF 305.69 FEET TO A CAPPED 'W IRON ROD SET FOR THE NORTHWEST CORNER OF THE HEREIN
DESCRIBED TRACT AND BEING THE SOUTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED
FROM MARINE PLASTICS, INC. TO CARL L. BEAUCHAMP AND WIFE, DONA J. BEAUCHAMP AS RECORDED IN
VOLUME 3375, PAGE 893 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS;
THENCE SOUTH 89 DEGREES 18 MINUTES 16 SECONDS EAST WITH SAID SOUTH LINE A DISTANCE OF 314.31
FEET TO A CAPPED'/" IRON ROD FOUND FOR THE SOUTHEST CORNER OF SAID BEAUCHAMP TRACT;
THENCE SOUTH 01 DEGREES 00 MINUTES 53 SECONDS WEST A DISTANCE OF 2.00 FEET TO A CAPPED 112"
IRON ROD SET FOR THE NORTHWEST CORNER OF SAID (VOLUME 1765, PAGE 964, SECOND TRACT);
THENCE SOUTH 76 DEGREES 58 MINUTES 22 SECONDS EAST WITH THE NORTH LINE OF SAID SECOND
TRACT PASSING AT 111.00 FEET THE NORTHEAST CORNER THEREOF AND CONTINUING ON SAID COURSE A
TOTAL DISTANCE OF 192.79 FEET TO A CAPPED IRON ROD SET FOR THE NORTHEAST CORNER THE
HEREIN DESCRIBED TRACT;
THENCE SOUTH 01 DEGREES 00 MINUTES 53 SECONDS WEST A DISTANCE OF 370.51 FEET TO A CAPPED 11Y
IRON ROD SET FOR THE SOUTHEAST CORNER OF THE HEREIN DESCRIBED TRACT AND BEING IN THE
NORTHERLY RO.W. LINE OF E. MCKINNEY STREET;
THENCE NORTH 77 DEGREES 01 MINUTES 10 SECONDS WEST WITH THE NORTHERLY R.O.W. LINE OF E.
MCKINNEY STREET A DISTANCE OF 507.70 FEET TO THE POINT OF BEGINNING AND ENCLOSING 4.024 ACRES
OF LAND MORE OR LESS.
Contract of Sale
Page 37 of 37
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Location Map Black Bear, LLC 4.024 acres
AGENDA INFORMATION SHEET
AGENDA DATE: July 12, 2011
DEPARTMENT: Economic Development
ACM: Jon Fortune
SUBJECT
Consider adoption of an ordinance of the City Council of the City of Denton, Texas, approving a
grant application from Joe Northern from the Downtown Incentive Grant Program not to exceed
$5,000; and providing for an effective date. (The Economic Development Partnership Board
recommends denial 7-0.)
BACKGROUND
City Council approved the Downtown Incentive Reimbursement Grant Program on April 3,
2007. The 2010-11 program received $50,000 from the General Fund. To date, $40,000 has
been granted by City Council for 2010-11. The Economic Development Partnership Board has
recommended an additional $15,000, which, if approved, leaves the fund at a negative $5,000.
In the past, City Council indicated they would consider eligible projects that exceeded the
allotted annual $50,000, if additional funds could be identified. There is a balance of $27,935
from unawarded Downtown Incentive Reimbursement Grants from fiscal year 2009-2010. If
Council deems appropriate, these funds could be used for projects during FY 2010-2011
Applicant: Joe Northern Flower Mound, Texas
Mr. Northern is the owner of 207 N. Bell Avenue. The Economic Development Partnership
Board and City Council previously approved a grant request for this same building, for the
restaurant owner, Sam Solomon, in the amount of $1,500 for awnings. Mr. Northern's request is
for facade improvements and utility upgrades.
This is the small yellow house located on the southern edge of the Denton Center for Visual Arts.
Until a few years ago, this building served as the office for the Greater Denton Arts Council;
most recently, it was a bail bonds office. When completed, it will house a seafood restaurant,
Hoochie's.
ESTIMATED SCHEUDLE FOR PROJECT
The project should be completed by the end of 2011.
Agenda Information Sheet
July 12, 2011
Page 2
PRIOR ACTION/REVIEW
On April 4, 2011 the Downtown Task Force reviewed the grant application and recommended a
grant in the amount of $5,000 for facade improvements and impact fees. The motion was
approved 6-3-1.
On May 10, 2011, the Economic Development Partnership Board reviewed the grant application.
A motion was made and seconded to approve the grant; the motion failed 0-7.
On June 21, 2011, the City Council discussed the ordinance and requested that staff bring it back
to their July 12, 2011, meeting for consideration.
FISCAL INFORMATION
The total cost of the project is $70,000. A $5,000 grant represents a return on investment of
$1:$14.
EXHIBITS
Grant application
Ordinance
Agreement
Respectfully submitted
Julie Glover
Economic Development Program Administrator
Ilcodadldcpa=entsllegahour documentslordinances1111207 n. bell joe northem orddoc
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS,
APPROVING A GRANT APPLICATION FROM JOE NORTHERN FROM THE
DOWNTOWN INCENTIVE GRANT PROGRAM NOT TO EXCEED $5,000; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on April 3, 2007, the City Council approved a Downtown Incentive
Reimbursement Program by Ordinance No. 2007-072; and
WHEREAS, Joe Northern applied for a $5,000 grant; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council of the City of Denton hereby approves the request from Joe
Northern for $5,000 from the Downtown Incentive Reimbursement Grant Program.
SECTION 2. The City Manager, or his designee, is hereby authorized to execute the
Agreement and to carry out the duties and responsibilities of the City, including the expenditure
of funds as provided in the Agreement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of , 2011.
MARK A. BURROUGHS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
3
BY:
s:leconomic developmentlincentivesldowntown grant agreements1207 n, bell - building1207 bell agreement original. doc
DOWNTOWN REIMBURSEMENT GRANT INCENTIVE AGREEMENT
This Downtown Reinvestment Grant Incentive Agreement (the "Agreement") is entered
into by and between the City of Denton, Texas (the "City"), duly acting herein by and through its
Mayor, and Joe Northern, representing transit Center Investments, LLC (the "Grantee"), duly
authorized to do business and in good standing in the State of Texas, duly acting herein by and
through its authorized officer.
WHEREAS, the City has adopted a resolution which provides that it elects to be eligible
to participate in downtown reinvestment grant incentives and has adopted guidelines and criteria
governing downtown reinvestment grant incentive agreements known as the Denton Downtown
Reinvestment Grant Incentive Program; and
WHEREAS, on the 3rd day of April, 2007, the City Council of Denton, Texas (the "City
Council") adopted the Denton Downtown Incentive Reimbursement Program (the "Program"), a
copy of which is on file in the City of Denton Economic Development Office and which is in-
corporated herein by reference; and
WHEREAS, the Denton Downtown Incentive Reimbursement Program Policy consti-
tutes appropriate "guidelines and criteria" governing downtown reinvestment grant incentive
agreements to be entered into by the City; and
WHEREAS, Grantee will be the Owner, as of the Effective Date (as hereinafter defined),
which status is a condition precedent, of certain real property, more particularly described in Ex-
hibit "A" attached hereto and incorporated herein by reference and made a part of this Agree-
ment for all purposes (the "Premises") as of the Effective Date; and
WHEREAS, on the 3rd day of March, 2011, Owner submitted an application for rein-
vestment with various attachments to the City concerning the contemplated use of the Premises
(the "Application"), which is attached hereto and incorporated herein by reference as Exhibit
"B"• and
WHEREAS, the City Council fmds that the contemplated use of the Premises, the Con-
templated Improvements (as hereinafter defined) to the Premises as set forth in this Agreement,
and the other terms hereof are consistent with encouraging development in accordance with the
purposes and are in compliance with the Ordinance and Program and similar guidelines and cri-
teria adopted by the City and all applicable law;
NOW, THEREFORE, the City and Owner for and in consideration of the premises and
the promises contained herein do hereby contract, covenant, and agree as follows:
I.
saeconomic development%incentivesldowntown grantagreements1207 n. bell - building1207 bell agreement original. doc
TERMS AND CONDITIONS OF REIMBURSEMENT
A. In consideration of and subject to the Owner meeting all the terms and conditions
of reimbursement set forth herein, the City hereby grants the following reimbursement:
1. A reimbursement in an amount not to exceed $5,000 attributable to new
capital investments, as hereinafter described, being constructed on the Premises.
B. A condition of the Reimbursement is that, by June 21St , 2012 (subject to force
majeure delays not to exceed 180 days), a capital investment in the form of facade work and
utility upgrades, as described in Exhibit "B" be constructed on the Premises. For the purposes of
this paragraph, the term "force majeure" shall mean any circumstance or any condition beyond
the control of Owner, as set forth in Section XXI "Force Majeure" which makes it impossible to
meet the above-mentioned thresholds.
C. The term "capital investment" is defined as the construction, renovation and
equipping of facade work and utility upgrades, as described in Exhibit "C" (the "Improvements
on the Premises", the "Contemplated Improvements" or "Improvements") to include costs re-
lated to the construction of the Improvements on the Premises.
D. A condition of the Reimbursement is that the Contemplated Improvements be
constructed and the Premises be used substantially in accordance with the description of the
project set forth in Exhibit "B".
E. Owner agrees to comply with all the terms and conditions set forth in this Agree-
ment.
II.
CONDITION OF REIMBURSEMENT
A. At the time of the award of the Reimbursement, all ad valorem real property taxes
with respect to said property owned within the City shall be current.
B. Prior to the award of the Reimbursement, Grantee shall have constructed the Cap-
ital Improvements as specified in Exhibit "B".
III.
RECORDS AND EVALUATION OF PROJECT
A. The Owner shall provide access and authorize inspection of the Premises by City
employees and allow sufficient inspection of financial information related to construction of the
Improvements to insure that the Improvements are made and the thresholds are met according to
the specifications and conditions of this Agreement. Such inspections shall be done in a way that
will not interfere with Owner's business operations.
Page 2
saeconomic developmentlincentivesldowntown grant agreements1207 n. bell - building1207 bell agreement Orlglnal.doc
IV.
GENERAL PROVISIONS
A. The City has determined that it has adopted guidelines and criteria for the Down-
town Reimbursement Grant Incentive Program agreements for the City to allow it to enter into
this Agreement containing the terms set forth herein.
B. The City has determined that procedures followed by the City conform to the re-
quirements of the Code and the Policy, and have been and will be undertaken in coordination
with Owner's corporate, public employee, and business relations requirements.
C. Neither the Premises nor any of the Improvements covered by this Agreement are
owned or leased by any member of the City Council, any member of the City Planning and Zon-
ing Commission of the City, or any member of the governing body of any taxing units joining in
or adopting this Agreement.
D. In the event of any conflict between the City zoning ordinances, or other City or-
dinances or regulations, and this Agreement, such ordinances or regulations shall control.
V.
NOTICE
All notices called for or required by this Agreement shall be addressed to the following,
or such other party or address as either party designated in writing, by certified mail postage pre-
pare, by hand delivery or via facsimile:
GRANTEE: CITY:
Joe Northern George C. Campbell, City Manager
4601 Portsmouth Ct. City of Denton
Flower Mound, TX 75022 215 East McKinney
Denton, Texas 76201
Fax No. 940.349.8596
VI.
CITY COUNCIL AUTHORIZATION
This Agreement was authorized by the City Council by passage of an enabling ordinance
at its meeting on the 21St day of June, 2011, authorizing the Mayor to execute this Agreement on
behalf of the City, a copy of which is attached hereto and incorporated herein by reference as
Exhibit "D".
Page 3
s:leconomic developmenAincentivesldowntown grant agreements1207 n. bell - building1207 bell agreement orlglnal.doc
VII.
SEVERABIILTY
In the event any section, subsection, paragraph, sentence, phrase or word is held invalid,
illegal or unconstitutional, the balance of this Agreement shall stand, shall be enforceable and
shall be read as if the parties intended at all times to delete said invalid section, subsection, para-
graph, sentence, phrase, or word. In the event that (i) the term of the Reimbursement with re-
spect to any property is longer than allowed by law, or (ii) the Reimbursement applies to a
broader classification of property than is allowed by law, then the Reimbursement shall be valid
with respect to the classification of property abated hereunder, and the portion of the term, that is
allowed by law.
VIII.
OWNER STANDING
Owner, as a party to this Agreement, shall be deemed a proper and necessary party in any
litigation questioning or challenging the validity of this Agreement or any of the underlying or-
dinances, resolutions, or City Council actions authorizing same and Grantee shall be entitled to
intervene in said litigation.
IX.
APPLICABLE LAW
This Agreement shall be construed under the laws of the State of Texas and is fully per-
formable in Denton County, Texas. Venue for any action under this Agreement shall be in Den-
ton County,
X.
ENTIRE AGREEMENT
This instrument with the attached exhibits contains the entire agreement between the par-
ties with respect to the transaction contemplated in this Agreement.
XI.
BINDING
This Agreement shall be binding on the parties and the respective successors, assigns,
heirs, and legal representatives.
XII.
COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an orig-
inal, but all of which together shall constitute one and the same instrument.
Page 4
saeconomic developmentlincentivesldowntown grantagreements1207 n. bell - building1207 bell agreement Original. doe
XIII.
SECTION AND OTHER HEADINGS
Section or other headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
XIV.
NO JOINT VENTURE
Nothing contained in this Agreement is intended by the parties to create a partnership or
joint venture between the parties, and any implication to the contrary is hereby disavowed.
XX.
AMENDMENT
This Agreement may be modified by the parties hereto to include other provisions which
could have originally been included in this Agreement or to delete provisions that were not orig-
inally necessary to this Agreement.
XXI.
FORCE MAJEURE
If, because of flood, fire, explosions, civil disturbances, strikes, war, acts of God, or other
causes beyond the control of either Party, either Parry is not able to perform any or all of its obli-
gations under this Agreement, then the respective Party's obligations hereunder shall be sus-
pended during such period but for no longer than such period of time when the party is unable to
perform.
This Agreement is executed to be effective 30 days after the executed date of the
day of , 2011, (the "Effective Date") by duly authorized officials of the City
and Owner.
PASSED AND APPROVED this the day of 32011.
CITY OF DENTON
GEORGE C. CAMPBELL, CITY MANAGER
Page 5
saeconomic developmenNncentivesWowntown grant agreements1207 n. bell - building1207 bell agreement orlglnal.doc
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
JOE N/ORTHERN, OWNER
ATTEST:
BY:
STATE OF TEXAS
COUNTY OF DENTON
Before me, the undersigned authority, a Notary Public in and for said State of Texas, on
this day personally appeared George C. Campbell, City Manager for the City of Denton, known
to me to be the person who signed and executed the foregoing instrument, and acknowledged to
me that this instrument was executed for the purposes and consideration therein expressed.
Given under my hand and seal of office this the day of , 2011.
Notary Public in and for the
State of Texas
My Commission Expires: _
Page 6
s:leconomic developmentlincentivesldowntown grantagreements1207 n. bell - building1207 bell agreement Original. doe
STATE OF TEXAS
COUNTY OF DENTON
Before me, the undersigned authority, a Notary Public in and for said State of Texas, on
this day personally appeared Joe Northern, Owner, known to me to be the person who signed and
executed the foregoing instrument, and acknowledged to me that this instrument was executed
for the purposes and consideration therein expressed.
Given under my hand and seal of office this the c ~ _Mday of 2011.
pp%Iy P4LINDA A. HOLLEY
ic. State of Texas
ission Expires
ber 13ai 20~
otariPublic in and for the
State of e 1 -Y
My Commission Expires:
Page 7
Exhibit A
LEGAL DESCRIPTION
207 N. Bell
The Arts Council Blk 1 Lot 1
Exhibit B
DOWNTOWN INCENTIVE REIMBURSEMENT GRANT
PROGRAM APPLICATION
Please return completed with necessary attachments and signature to Downtown Development office, 215 E.
McKinney no later than 5 p.m. on the Monday prior to the 1" Wednesday of each month. If you have any
application questions, please contact the Downtown Project Coordinator at 940-349-7731. If you have any
building or sign permit/historic preservation questions, please contact the Historic Preservation Officer at
940-349-7732.
♦ Applicant Name Date 3
♦ Business Name
♦
Mailing Address / k fl~ 151111-114
Contact Phone 2- ~ ~ brv Email
Building Owner (if different fram applicant)
Historical/Current Building Name %
L
♦ Physical Building Address k ~:;,10 -7 A-! - 1i
of Work (check all that apply)
♦ Type
Parade Rehabilitation
~Sr 1 G~
Facade - Paint-only Awnings
-Signage _ ]Impact Fee V Utility Upgrade
♦ Details of Planned Improvements for Downtown Incentive Reimbursement Grant:
attach additional paper if neces&ar )
List Contractor/Project architect Proposals and Total Amounts (please attach original proposals):
I.
2.
♦ TOTAL COST OF PROPOSED PRO.IEC
♦ AmoUNT OF GRAINT REQUESTED (50% OF TOTAL COST ABOVE): 72-,[r s -o - 42- Attach with all r color samples of paint, ing/canopy, sign design, etc., as well as photographs of
building's erior fa de, roof an a n.
in~►is~~C~iDate
D
f ~a
7
10 of 11
S Uncentive Program\Downtown Incentive Grant Program Applieation.doc
DOWNTOWN INCENTIVE REIMBURSEMENT GRANT
AGREEMENT FORM
Please return completed with necessary attachments and signature to Downtown Development office, 215 E.
McKinney no later than 5 p.m. on the Monday prior to the l~` Wednesday of each month. If you have any
application questions, please contact the Downtown Project Coordinator at 940-349-7731. If you have any
building or sign permitthistoric preservation questions, please contact the Historic Preservation Officer at
940-349-7732.
I have met with the Downtown Project Coordinator, and I fully understand the Downtown Incentive
Reimbursement Grant Procedures and Details established by the Denton City Council. I intend to use this
grant program for the aforementioned renovation projects to forward the efforts of revitalization and
historic preservation of Demon's historic downtown. I have not received, nor will I receive insurance
monies for this revitalization project.
I have read the Downtown Incentive Reimbursement Grant Application Procedures including the
Downtown Incentive Reimbursement Grant Details.
I understand that if I am awarded a Downtown Incentive Reimbursement Grant by the Denton City
Council, any deviation from the approved project may result in the partial or total withdrawal of the
Downtown Incentive Reimbursement Grant. If I am awarded a reimbursement grant for facade, awning
or sign work and the fagade, sign or awning is altered for any reason within one (1) year from
construction, I may be required to reimburse the City of Denton immediately for the full amount of the
Downtown Incentive Reimbursement Grant.
station Na '
store Printed Name
Date
Date
's Signatdrie (if different from applicant) Printed Name
DTTF Signature (obtain signature atDTTF meeting) Recommendation Date
EDPB Signature (obtain signature at EDPB meeting) Recommendation Date
11 of 11
S:Un"mwe Progmmn Doccmtoxm Incentive GrW Program AppfinWndoc
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I
HOW WILL THIS PROJECT BENEFIT DOWNTOWN DENTON?
SiE
BUDGET DETAIL t ch 4,,, ~ e ('T vi 1 ri. ~LIV V~v r
PROJECT EXPENDITURES
CITY FUNDS REQUESTED
APPLICANT'S FUNDS
TOTAL
FACADE REHAB
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AWNINGS/SIGNS
IMPACTFEES
IJ"TILTI"S' UPGRADES
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TOTALS
ATTACH EXACT COLOR SAMPLES, MODEL NUMBERS (WINDOWS, DOORS, ETC.), PHOTOS AND/OR SKETCHES OF WORK
TO BE COMPLETED. PLEASE INCLUDE AS MUCH DETAIL AS POSSIBLE.
11 of 12
&'Immytive Progr=Zomtow Ince tiv Grit Program ApplicaWn&c
The yellow house at 213 E. Mulberry previously housed a bail bond company. We are proposing to
renovate the house to allow a Hoochie`s Seafood Restaurant. In addition to this property being adjacent
to the Downtown Transit Center, it is also the gateway to the Hickory Street Arts Corridor, and we feel
that a renovated building, in conjunction with an upgrade to a restaurant use would improve the overall
appearance/attractiveness of the area. It will also provide an additional dining option for the burgeoning
downtown area.
862602
PURCHASE ORDER
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1'~ ` ~'Ur~HAS?NG AGENT
IPLASE OTI^ Y US, IMIMEDIAI ELY 1 YLI..' RE :1?ti?r` BL,_
SPECIFIED d
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:Sam
Organization:
E Number:
Date-
Janus 17, 210 11
Sub j ect:
J 04 B :1 Ave- enton T Remo del i d
Hoopes
°304 B ell Ave. Denton TX
Remodel Bid
1. st&U 20 mp single phase ser ce.
3. Install 14 olt 50anV plug for kettle.
3. Instafl -140volt supply for the walk in freezer.
4. Install 6 outdoor floodlights..
5. IhsW -14 oft pav er for vent hood system..
6. Inst 1 1-2 olt kitchen outlets.
7. Install poorer and install 6 ceiling Ems.
S. Install 2 -240v41t lines fbr heaters on deck-
9 , Install power for outsi .e sign on time clock.
10. Inshi1l lights and plugs on deck.
11. Remove all eiectricity from waUs to he removed.
11 Install. lights in new ceiling ' 'I dining room..
*ALL WORK WILL BE INSPECTED BY THE CITY OF DEN TON*
TOTAL PRICE 11,421. DO
(Price includes Parts, Labor and Tax)
Tlmnk You,
J ohnny Day
214-686-2348
r
RICHARD WRIGHT
C-ON CTO
Reference: 207 Forth Bell
Dentory Texas
PHASE I
TE ? NO. 1: LEENJEL STRUCTURE
Adjust and reinforce existing piers and
beams as required to support and level
struc:cure 600.00
ITEM NO. 2 DEMO
Demo galls and ceilings as proposed in
drawings. Haul trash. 2000.00
PHASE 11
ITEM NO. 3: ROUGH--IN, FRAMING
`deconstruct interior 'rough frame) structure
as proposed.
Labor 4000,00
Material-- 1500.00
ITEM NO. 4: ELECTRICAL
Rough--in as proposed by Johnnv Day 11~ 5 7C. ~t~
ITEM, NO. w : PLUMBING
Rough-;.n plumbing as proposed
ITEM NO, 6: HVAC
Rough-in FVAC ',1ni-- to boss.- ex-sting :.apac.it, 4000 orj
IT EM NO. : 1Xe.33ULAT?,,)N
Instal (Closed Ceil ) foam in staid and z:aa Ler•
cavities. [To be determined based on exposed
areas.I E t.: 3500.00
PHASE III
ITEM NO. 8: FINISH WALL AND CEILING
[To be determined.]
(A)
Walls
(B)
Textures
(C)
Paint
(D)
Trim
ITEM NO. 9: FINISH FLOORS
[To be determined.]
(A) Tile
(B) Wood
(C) Vinyl
ITEM NO. 10: FINISH ELECTRICAL
Plumbing and HVAC - [To be determined.]
ITEM NO. 11: DECK
Construct deck area (Approximately 1300 s.f.) as
proposed. Construct ramp for access. Construct
deck for refrigerated unit.
Labor 4500.00
Materials 4500.00
ITEM NO. 12: DECK COVER
(A) Structure
(B) Type of Cover
[To be determined.]
ITEM NO. 13: CONTRACTOR FEE
-2~fl Percent
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Jim Robertson Construction
214 707 0684
Bid on building located at 207 N. Bell Avenue, Denton Tx.
03/20/2011
1. Remove all interior walls., reinforce all load bearing areas. Provide dumpster
$2,000.00
2. General construction for building out interior, to include moving bathrooms , build
out service and salsa bars, restructuring all ceiling/ wall areas as necessary to include
materials and labor.
$11,000.00
3. Replace/Repair damaged exterior components (Facade) to include entrance ramp,
damaged wood,
lattice, synthetic turf, doors and frames.
$9,000,00
3a. Complete construction of North and West facing decks to include labor and materials
$10,000.00
Total Facade Cost $19,000.00
4. Replace windows
$3500.00
5. Roof replacement (if necessary)
$12,500.00
6. Foundation repair
$3,000.00
7. Repaint Exterior
$3000.00
TOTALS $53,000.00 including materials, labor, and taxes
Terms: 50% prior to start, and 50% at completion. Bid good for 30 days from March 20,
2011
*Although demo may begin anytime, interior and deck construction cannot begin until foundation
work is complete
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