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April 16, 2002 Agenda
Agenda 02-013 04/16/02 AGENDA CITY OF DENTON CITY COUNCIL April 16, 2002 After determining that a quorum is present, the City Council will convene in a Work Session on Tuesday, April 16, 2002 at 4:30 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: Receive a report and hold a discussion on the City of Denton's current Civil Service hiring and promotional procedures as well as review the history of past Civil Service examinations. Receive a report, hold a discussion, and give staff direction regarding the specific creation of a Development Code Citizens Committee, and the formation of citizens committees for other city functions. Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of April 16, 2002. Following the completion of the Work Session, the 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 fight to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Government Code, as amended, as set forth below. 1. Closed Meeting: A. Consultation with Attomey- Under Tex. Gov't Code §551.071. Discuss and consider proposed settlement, audit, and potential litigation conceming a settlement offer by Verizon. To discuss these matters in public would conflict with the duty of the City Attorney's to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN iN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH 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. GOV'T. CODE, §§551.001, ET SEQ. (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. City of Denton City Council Agenda April 16, 2002 Page 2 Regular Meeting of the City of Denton City Council on Tuesday, April 16, 2002 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: Pledge of Allegiance A. U.S. Flag B. Texas Flag "Honor the Texas Flag -- I pledge allegiance to thee, Texas, one and indivisible." PROCLAMATIONS/PRESENTATIONS 2. April Yard-of-the-Month Awards 3. Proclamations 4. Recognition of staff accomplishments. CITIZEN REPORTS 5. Petemia Washington regarding the Southeast Denton Small Area Plan. 6. Dessie Goodson regarding public transportation and pay raises. 7. Nell Yelldell regarding deceiving the community in District 1 and flood zone area. 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 8 - 23). 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 8 - 23 below will be approved with one motion, if items are pulled for separate discussion, they will be considered as the first items following approval of the Consent Agenda. 8. Consider approval of the minutes of March 26, 2002. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute an agreement for Professional Legal Services with the law offices of Jim Boyle, PLLC.; for services pertaining to the Travis County Litigation initiated by the City of San Antonio, Texas and by Reliant Energy, inc. relating to Denton Municipal Electric and numerous other electric transmission providers in the State of Texas; authorizing the expenditure of funds therefor; providing for retroactive approval of the agreement; and providing an effective date. City of Denton City Council Agenda April 16, 2002 Page 3 10. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement with Freese & Nichols, Inc. for Professional Engineering Services related to resident representation during construction and for materials and density testing regarding the Lake Ray Roberts 54-inch Finished Water Transmission Pipeline and the Loop 288 42-inch and 36-inch Water Transmission Pipelines; authorizing the expenditure of funds therefor; and providing an effective date. 11. Consider adoption of an ordinance accepting competitive bids and awarding a contract for the completion of the Woodrow Substation Site Work, Foundations, Ground Grid, Conduit System and Fence; providing for the expenditure of funds therefore; and providing an effective date (Bid 2821 - Woodrow Substation Site Work, Foundation, Ground Grid, Conduit System and Fence awarded to lowest responsible bidder, Can-Fer Construction Company in an amount not to exceed $349,000). 12. Consider adoption of an ordinance accepting competitive bids and awarding a contract for the purchase of a Control House for the Spencer Switch Yard; providing for the expenditure of funds therefore; and providing an effective date (Bid 2817 - Control House for Electric Switch Yard awarded to lowest responsible bidder, Rohn industries, inc. in the amount of $100,050). 13. Consider adoption of an ordinance accepting competitive bids and awarding a contract for the purchase of the Spencer Switch Station Material and Equipment Package; providing for the expenditure of funds therefore; and providing an effective date (Bid 2835 - Spencer Switch Material Package awarded to the lowest responsible bidder, Utiliserve High Voltage Group in the amount of $236,756.82). 14. Consider adoption of an ordinance approving an agreement between the City of Denton and McDonald Transit Associates, Inc. to provide passenger motor carrier transit management and operation services for the City; providing for the expenditure of funds therefore; and providing an effective date. 15. Consider adoption of an ordinance accepting competitive bids and awarding a contract for the purchase of Precast Manholes and Pads; providing for the expenditure of funds therefore; and providing an effective date (Bid 2825 - Annual Price Agreement for Precast Manholes and Pads awarded to lowest responsible bidder, Brooks Products, as listed in the estimated amount of $82,795). 16. Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement (PSA) with Turner, Collie & Braden, Inc. for Engineering Services for Unicorn Lake - IH 35E Ramp Replacement as set forth in the contract; and providing an effective date (PSA 2812 - Engineering Design of Unicom Lake - IH 35E Ramp Replacement awarded to Turner, Collie, & Braden, Inc., in the amount of $126,314). 17. Consider adoption of an ordinance authorizing the City Manager to execute a Professional Services Agreement (PSA) with Teague Nall and Perkins, inc., for Engineering Design of the Mayhill Road Bridge Pecan Creek, as set forth in the contract; and providing an effective date (PSA 2816 - Professional Services Agreement for Engineering Design of the Mayhill Road Bridge - Pecan Creek to Teague Nall and Perkins, inc. for a total amount of $125,700). City of Denton City Council Agenda April 16, 2002 Page 4 18. Consider adoption of an ordinance authorizing the City Manager to execute Change Order Number One to the contract between the City of Denton and HH Architects; providing for the expenditure of funds therefore; and providing an effective date (Ordinance No. 2001-115; PSA 2657 - Professional Services for North Branch Library awarded to HH Architects in the amount of $374,594 and Change Order Number One in the amount of $30,400 for a total amount of $404,994). 19. Consider approval of a resolution allowing Metzler's Food and Beverage to be the sole participant allowed to sell alcoholic beverages at the Cinco de Mayo Celebration on May 4, 2002, upon certain conditions; authorizing the City Manager or his designee to execute an agreement in conformity with this resolution; and providing for an effective date. The Parks and Recreation Board recommend approval. 20. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Wireline Crossing Agreement with Union Pacific Railroad Company for a wireline crossing located at Mile Post 721.180, Choctaw Subdivision, City of Denton, Denton County, Texas; authorizing the expenditure of funds therefor; and providing an effective date. 21. Consider adoption of an ordinance of the City of Denton naming the Aquatic Center project; and declaring an effective date. 22. Consider adoption of an ordinance authorizing the City Manager to sign the Contract for Professional Services between the City of Denton and C2 Consulting Services, Inc., to provide cable consultant services with respect to Charter Communications cable franchise renewal filing; ratifying prior actions; and providing an effective date. 23. Consider adoption of an ordinance authorizing the City Manager to sign the Contract for Professional Services between the City of Denton and Vamum, Riddering, Schmidt, Howlett to provide legal services with respect to Charter Communications cable franchise renewal filing and work with cable consortium; CoServ cable franchise application; ratifying prior actions; and providing an effective date. PUBLIC HEARING 24. Hold a public heating to receive citizen comments regarding cable television regulated rates. 25. Hold a public hearing inviting citizens to comment on the City of Denton's 2002 Action Plan for Housing and Community Development. 26. Hold a public heating and consider adoption of an ordinance rezoning approximately 54 acres from a Neighborhood Residential 3 (NR-3) zoning district to Neighborhood Residential Mixed Use (NRMU), Neighborhood Residential Mixed Use 12 (NRMU-12), and Neighborhood Residential 6 (NR-6) zoning districts. The property is generally located south of Mingo Road and the Union Pacific railroad, east of Mozingo Street, north of Lattimore Street, and north and west of Audra Lane. Single-family, multi- family, and neighborhood office and retail development is proposed. The Planning and Zoning Commission recommends approval (7-0). (Z02-0002) City of Denton City Council Agenda April 16, 2002 Page 5 ITEMS FOR INDIVIDUAL CONSIDERATION 27. Consider adoption of an ordinance authorizing the City Manager to execute a letter agreement with TXU Gas Distribution agreeing on the form of Notice to be published in the Denton Record-Chronicle notifying Denton ratepayers of the effect of the request fir an adjustment of rates by TXU Gas Distribution in the North Texas Metroplex Distribution System rate case; and providing for an effective date. 28. New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. 29. items from the City Manager A. Notification of upcoming meetings and/or conferences B. Clarification of items on the agenda 30. Possible Continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. 31. 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 _, 2002 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. This page left blank intemionally. Agenda 02-013 04/16/02 WS 1 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: April 16, 2002 Fire Jon Fortune, Public Safety and Transportation SUBJECT Receive a report and hold a discussion on the City of DeMon's currem Civil Service hiring and promotional procedures and practices as well as review the history of past Civil Service examinations. BACKGROUND The Human Resources Departmem has prepared a "City of DeNon Police and Fire Civil Service Information on Hiring and Promotions" document, which is attached. This comprehensive report describes in detail the hiring and promotional practices and procedures for both the Police Department and Fire Department. It also provides a detailed history of both public safety departments' civil service tests back to the year 1990. Entry-Level Positions: Under Chapter 143 of the Texas Local Government Code, applicants for the Fire and Police Departmems can only be hired from the eligibility list produced from a competitive written examination: 143.025. Entrance Examinations (a) The commission shall provide for open, competitive, and free emrance examinations to provide eligibility lists for beginning positions in the fire and police departments. The examinations are open to each person who makes a proper application and meets the requirements prescribed by this chapter. (b) An eligibility list for a beginning position in the fire or police departmem may be created only as a result of a competitive examination held in the presence of each applicant for the position... The Human Resources Department partners with the Fire and Police Departments to coordinate and administer the civil service testing process. In general, the Human Resources department is responsible for establishing deadlines for receipt of applications and related materials (i.e. DD- 214, educational transcripts, etc.), mailing applications, receiving and logging the applications into the Human Resources computer system, and preparing applicant files. The Human Resources department has used approximately three different tests for Fire and Police entry-level examinations over the last fourteen years. The Wollack and Associates examination has been used for Fire Recruit exams since 1988. However, in 1997, the department switched to a different examination, offered by Wollack, which included a study guide for test candidates. The City continues to provide the study guide as a tool to help enhance the test taking skills of the candidates by providing sample questions and preparing them for the examination format. One of the City's goals beginning in year 2002 is to rotate the companies we use who develop the exams to increase test credibility, thoroughly cover test material, maintain cost effectiveness, provide an opportunity to adequately evaluate each test preparer, and ensure the test does not present an adverse impact on minority applicants taking the examinations. All tests will be reviewed by a member of the Police or Fire department and a member of the Human Resources department to ensure that the test is fair, and the questions are clear and relevant. Promotional Testing: Chapter 143 also defines the eligibility for promotion and the process for filling promotional positions. Section 143.028(a) specifies "... a fire fighter is not eligible for promotion unless the person has served in that fire department in the next lower position or other positions specified by the commission for at least two years at any time before the date the promotional examination is held..." Section 143.028(b) specifies "... a police officer is not eligible for promotion unless the person has served in that police department in the next lower position or other positions specified by the commission for at least two years immediately before the date the promotional examination is held..." The Police Department currently uses Justex Systems, Inc for the development of promotional examinations. The Fire Chief writes all Fire Department promotional tests at the request of the firefighters. Challenges Associated with Chapter 143: Being a Chapter 143 City provides some unique challenges to creating a diversified workforce that is reflective of the community. Although we can aggressively recruit minorities, we cannot guarantee the score they will make on the examination. Chapter 143 requires us to begin the selection process with the applicant who scores the highest grade on the written examination. Denton's hiring process is often compared to other cities, many of which are not Chapter 143 cities, and therefore, do not have to follow the strict procedures Denton must follow by law. A listing of Chapter 143 cities is included in Appendix E of the attached Police and Fire Civil Service Information on Hiring and Promotions. The City of Dallas is not a Chapter 143 Civil Service city; instead it has it's own internal civil service testing procedures which gives it more flexibility in hiring minorities. Fort Worth is a Chapter 143 Civil Service city; however, it recently lost a case prohibiting the City from a past practice of hiring minority candidates to study how to take the Civil Service test prior to being tested and hired as a firefighter. This practice was productive, but now illegal. Therefore, they are now facing the same obstacles as the City of DeNon. They do have more openings and an ongoing academy, which probably attracts more minority candidates. A primary challenge of attracting qualified minorities is the competition from all federal, state, and local law enforcemeN and fire protective agencies. Qualified minority applicaNs, especially those who are bilingual and/or hold college degrees, are actively recruited by agencies at all levels. Additionally, the applicaN's personal preferences, coupled with issues such as relocating, make it difficult to recruit some individuals. Entry-level exams are given every six months. Scheduling conflicts with other local agencies, applicaN responsibilities such as work or school, and travel costs may preclude or deter qualified individuals from being able to attend the test. Those applicants who miss a test may find employment with other agencies before the next test is given. Similarly, the number of applicants the department can consider is directly related to the number of vacancies that exist. The more Police Officers or Firefighters the departments can hire off of any given eligibility list increases the chances that the perceNage of minority candidates will be considered for employmeN and subsequeNly hired. Efforts to Overcome These Challenges: However, we realize the importance of ensuring the make-up of our workforce is reflective of our community and value the benefits a diverse workforce provides the organization and community. Because of our sincere commitmeN to meeting this goal, the City has implemeNed an aggressive recruiting program. Representatives from Human Resources, Police, and Fire regularly attend career and job fairs at local evens, colleges and universities, and high schools. Whenever possible, recruiters are chosen for assignments based on the group targeted. Recently Fire has dedicated some of its recruiting efforts to include local churches and establishmeNs, especially those that target minorities. Please refer to Appendix F of the attached Police and Fire Civil Service Information on Hiring and Promotions for a complete listing of the recruiting fairs and activities. Additionally, Appendices C and D of the attached Police and Fire Civil Service Information on Hiring and Promotions provide a breakdown by year since 1990 of the departments' recruiting and hiring histories. Another strategy employed to diversify the sworn workforce is the increase in civilian staffing of positions. Recruiting qualified minorities and women applicaNs to fill these positions provides them more exposure to the civil service positions. Since 1996, in the Police department, one black male and one black female have successfully made the transition from jailer to police officer. Both departments use every opportunity to recruit individuals. Programs such as the Citizen's Police Academy, the Citizen's Fire Academy, the Citizen's Youth Academy (Police), and the Fire Explorer Youth Program provide individuals with knowledge about the overall operation of the departments. Though participants may not be interested, they may have friends or relatives that they could refer for employment. The Police departmeN provides iNernship opportunities for local criminal justice studeNs and several officers also act as instructors at local colleges and police academies. Further, the Community Policing philosophy increases comact between officers and citizens and has increased officer participation in the activities of civic organizations. Because we were not satisfied with the results of our intensive and extensive efforts to hire minorities, the Fire Chief requested that the City Council approve a Fire Department Diversity Task Force to review all its recruitment and hiring procedures. On January 17, 2001, the first meeting of this Task force took place. The Diversity Task Force was chaired by Davina Tomlinson (African American) from Human Resources and was made up of three African Americans and three Hispanics chosen by the City Manager and approved by the City Council. Several Fire Department Staff also attended these meetings to answer questions and interact with Task Force members, especially with their recommendations. The Diversity Task Force met three times and made several recommendations to assist the Fire Department recruit and hire minorities. Their key recommendation was to focus more recruiting locally, rather than go outside the community. Based on that recommendation, the Fire Department has conducted extensive recruiting at local schools, local churches, local shopping areas (including the Mall), City recreation cemers, as well as both universities. EXHIBITS City of Demon Police and Fire Civil Service Information on Hiring and Promotions Respectfully submitted: Joanie Housewright Police Captain Carla Romine Director of Human Resources Ross Chadwick Fire Chief City of Denton Police and Fire Civil Service Information On Hiring and Promotions Table of Contents II. III. IV. V. VI. Chapter 143 Overview ........................................................................... 1 Civil Service Commission ................................................................ 1 Civil Service Director ...................................................................... 1 Entry-Level Positions ............................................................................ 2 Examination Notice .......................................................................... 2 Advertising ....................................................................................... 3 Civil Service Testing and Hiring Process ...................................... 3 Promotions .............................................................................................. 8 Promotional Source Material and Examination Notice ............... 8 Promotional Testing ........................................................................ 9 Appeals .............................................................................................. 10 Promotional Bypass ......................................................................... 10 Challenges Associated with Chapter 143 ............................................. 10 Efforts to Overcome these Challenges ................................................. 11 Appendices A - Fire Recruit Job Description .................................................... 13 B - Police Recruit Job Description ................................................. 14 C -Fire Department Recruiting/Hiring History .......................... 16 D - Police Department Recruiting/Hiring History ....................... 21 E - Chapter 143 Civil Service Cities .............................................. 27 F - Recruiting Fairs and Activities ................................................ 28 April 5, 2002 i Chapter 143 Overview The City of DeNon became a Civil Service city under Chapter 143 of the Texas Local Governmem Code on August 10, 1948. To be classified as a Civil Service city, the city's population must be 10,000 or more, the city must have a paid fire and police departmem, and the citizens must have voted to adopt Chapter 143 of the Texas Local Government Code or the laws codified by the Chapter. The purpose of Chapter 143 is "to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanem employment tenure as public servants." To help ensure this, the chapter outlines the procedures associated with the following: classification and appoimmems including, but not limited to, eligibility requiremems, examination notices and procedures for filling positions, compensation, disciplinary actions, leaves, and miscellaneous provisions including, but not limited to, personnel files, strike prohibition, determination of physical and memal fitness, efficiency reports, etc. Civil Service Commission A three-member Civil Service Commission is appoimed by the Chief Executive Officer (City Manager) to oversee and ensure compliance with this chapter. The governing body (City Council) confirms the Chief Executive Officer's appoimmem. As outlined by Chapter 143, to be eligible to serve on the Commission, a member must: be of good moral character; be a United States citizen; be a resident of Denton, Texas and must have resided in Denton for more than three years; be over 25 years of age; and not have held public office within the preceding three years. Commission members are appointed to serve staggered, three-year terms, with the term of one commissioner expiring each year. The City of DeNon strives to ensure the Commission best reflects the demographics of the community and has been successful in this goal over the past several years. Commission meetings typically are held the third Thursday of each month. Civil Service Director Chapter 143 also includes a provision for a Civil Service Director. Section 143.012(a) states, "upon adoption of this chapter, the office of Director of Fire Fighters' and Police Officers' April 5, 2002 1 Civil Service is established in the municipality. The Commission shall appoim the director. The director shall serve as secretary to the Commission and perform work incidental to the civil service system as required by the Commission...". The Director of Human Resources has traditionally served and curremly serves as the Civil Service Director for the City of Denton. This report focuses on the City of DeMon's hiring process for civil service police and fire positions. In particular, this report addresses how the process relates to Chapter 143 and the requirements set forth by the chapter, as well as the City's recruitment strategies and history. Entry-Level Positions Under Chapter 143 of the Texas Local Government Code, applicants for the Fire and Police Departmems can only be hired from the eligibility list produced from a competitive written examination. Since Chapter 143 specifies that an entrance examination must be given, in order to be in compliance, the City of Denton has elected to use an outside agency to develop the written examinations for Fire and Police entry-level positions. 143.025. Entrance Examinations (a) The commission shall provide for open, competitive, and free emrance examinations to provide eligibility lists for beginning positions in the Fire and Police Departments. The examinations are open to each person who makes a proper application and meets the requirements prescribed by this chapter. (b) An eligibility list for a beginning position in the Fire or Police Departmem may be created only as a result of a competitive examination held in the presence of each applicant for the position... Pursuam to section 143.025(h), "...each applicam's grade on the written examination is based on a maximum grade of 100 percem and is determined emirely by the correctness of the applicant's answers to the questions. The minimum passing grade on the examination is 70 percem. An applicam must pass the examination to be placed on an eligibility list." Examination Notice Section 143.024(a) states "before the l0th day before the date an entrance examination is held, the Commission shall cause a notice of the examination to be posted in plain view on a bulletin board located in the main lobby of the city hall and in the Commission's office. The notice must show the position to be filled or for which the examination is to be held, and the date, time, and place of the examination." The City of Denton makes every effort to ensure this notice is posted at least 30-60 days before the exam date. The notice is posted at the main City Hall and City Hall East. The Commission does not have an office, but the Civil Service Director who supports the Commission is located in City Hall East. Additionally, the "notice of examination" is posted April 5, 2002 2 in the lobby of the Police Department and at the fire stations. Recently, notifications of examinations have been posted on the City's website. Advertising The Human Resources Departmem advertises for the emry-level positions using several mediums to attract a wide-variety of qualified applicams. In the previous year, these advertising mediums have included: City of DeNon website, DeNon Record Chronicle, Local Governmem Cable Access Channel 26, Employmem News (Newspaper), Dallas Weekly (Newspaper), E1 Sol Dallas (Hispanic Newspaper), and Radio KRVA. Civil Service Testing and Hiring Process The Human Resources Department partners with the appropriate department to coordinate and administer the civil service testing process. In general, the Human Resources Departmem is responsible for establishing deadlines for receipt of applications and related materials (i.e. DD-214, educational transcripts, etc.), mailing applications, receiving and logging the applications into the Human Resources computer system, and preparing applicant files. After the closing date when all applications have been logged, the respective Civil Service department sends a representative to review the contents of each applicant's file to ensure all required information has been received and to ensure each applicam meets the eligibility requiremems (reference appendices A and B). If it is determined that an applicam does not meet the department's hiring standards, the applicant is sent a letter stating that they do not meet the minimum department hiring standards. The Human Resources Departmem has used approximately three differem tests for Fire and Police emry-level examinations over the last fourteen years. The Wollack and Associates' examination has been used for Fire Recruit exams since 1988. In 1997, however, the Fire Departmem switched to a differem examination offered by Wollack that included a study guide for test candidates. It was the imem of the City to provide the study guide as a tool to enhance the test taking skills of the candidates by providing sample questions and preparing them for the examination format. Additionally, the Police Departmem used the Wollack examination for Police Recruit emry- level examinations for approximately two years in the early 1990's. However, it was determined that the Imernational Personnel Managemem Association (IPMA) had developed an examination that included a study guide for the candidates' use and comained information April 5, 2002 3 more relevant to the different aspects of public safety testing. The Police Department still uses IPMA's examination. Each test developing company has standards for creating their examinations. For example, IPMA develops their Police Recruit entry-level examination based on a job analysis and policies and standards from municipalities. A sample test is distributed to incumbents currently in the position to be tested. After the examination is scored, a representative from the test developing company discusses the test taker's performance on the job with the test taker's supervisor. Based upon the results of the test and the interview, the validity of each question is determined. (Source: Kelli Sheets, IPMA, April 4, 2002) On the day of the test, all applicants must display valid picture identification at check-in at the testing site. Failure to display valid picture identification disqualifies the applicant from testing. All applicants must be on time. Failure to check-in prior to the posted start time will disqualify the applicant from testing. After the Civil Service exam has been scored on-site, the Human Resources Department establishes an eligibility list that is presented to the Civil Service Commission for approval at the next scheduled Civil Service Commission meeting. In the event that candidates are tied with identical scores, the respective department will apply specific criteria, as outlined in the chart below, to rank the order of applicants. The chart below also compares and contrasts each department's process after the written exam has been administered and the eligibility list has been established. Police Recruit Examination March 9, 2002 Texas Woman's University MCL Auditorium Tie-Breakers 1. Certification with or certifiable 1. Prior law enforcement experience by the Texas Commission of plus certification in the State of Fire Protection. Burden of proof Texas. is with the applicant 2. Certification in the State of Texas 2. Certification of licensing as an 3. Certification in another state Emergency Medical Technician 4. Experience gained through study in - Paramedic (EMT-P) by the professional areas of expertise as Texas DepartmentofHealth demonstrated by completion of 3. Certification as an Emergency degree requirements. (i.e. Medical Technician (EMT) - Bachelor's, etc.) April 5, 2002 4 Tie-breakers, cont. Basic by the Texas Department 5. Current enrollment in a Texas of Health certified Police Academy 4. Raw score on exam (score 6. Experience as a Texas Police before any military points are Reserve Officer added). 7. Military Police experience 5. Possession of a Bachelor's 8. Military Reserve Police experience degree 9. Social Security number with the 6. Possession of an Associate's number one (1) being the highest degree number 7. Bilingual 8. Applicant with the earliest stamped time of application Physical Agility The Denton Fire Department requires No physical agility test is required for Test that all applicants pass a physical Police Recruits. agility test administered by department personnel at a designated facility. This test is comprised of: 1. Tower climb-body drag: time limit - five (5) minutes 2. Hose hoist: time limit - fifteen (15) seconds 3. Hose drag: time limit - twenty (20) seconds 4. Ladder climb: time limit - one (1) minute and forty (40) seconds 5. Beam walk: time limit - five (5) seconds The applicant must pass all five (5) sections of the physical agility test before the expiration of the one (1)- year probationary period. Progress will be monitored to guarantee the Recruit Firefighter passing the physical agility test during the probationary period. Behavioral No B-PAD is given for Recruit The top three applicants for each Personality Firefighters vacant position participate in the B- Assessment Device PAD assessment that is scored by a (B-PAD) panel of three department certified B- PAD raters. Background After requesting and receiving names After requesting and receiving names Interview from the Director of Civil Service, the from the Director of Civil Service, the Background Investigator will review background investigator will review the personal history of the highest all of the required materials provided listed applicant to ensure the applicant by each applicant in preparation for has met the minimum standards the interview. The applicant's driving established by this policy, record, criminal history, and credit history are examined as well. The applicant is interviewed regarding the April 5, 2002 5 Background accuracy and details of the information Interview, cont. provided by the applicant. Documentation of or admissions by the applicant of incidents that do not meet the hiring standards will result in either a temporary or permanent disqualification. The Texas Commission on Law Enforcement Officer Standards and Education requires a background interview on all candidates. Background The background investigation will The background will conform to the Investigation conform to the current procedures set current procedures set forth by the forth by the Denton Fire Department Denton Police Department at the time at the time of consideration. All areas of consideration. All areas of an of an applicant's personal history will applicant's personal history will be be examined to determine a person's examined to determine a person's suitability for a position as a Recruit suitability for a position as a Recruit Firefighter. Due to time restrictions, Police Officer. adjustments in the order of professional testing may occur for the The Texas Commission on Law benefit of the department; however, Enforcement Officer Standards and any changes in chronology will not Education requires a background aid or detract from the qualifications check on all candidates of the applicant, or his/her opportunity for employment. Chief Interviews After successful background Chief interviews are not conducted investigations, candidates will be with Recruit Police Officers. interviewed by the Fire or Division Chief before proceeding to the next step. Polygraph The highest listed applicant will be The top three applicants for each Examination required to fill out a polygraph vacant position will be required to fill questionnaire and the Training Office out a polygraph questionnaire and the will assist in scheduling a date for the Personnel/Training Office will polygraph examination and providing schedule the polygraph examination notification to the applicant, and provide notification to the applicant. Oral Review Board The highest listed applicant will then The top three applicants for each present himself/herself before an Oral vacant position will then participate in Review Board composed of Fire an Oral Interview Board consisting of Department personnel, a four departmental officers representing representative from the City's Human various ranks and assignments. Each Resources Department, and, if member of the Board will rate each possible, a community member. Each applicant on his/her acceptability for member of the Board will rate the employment based on a prescribed applicant on his/her acceptability for rating scale. employment based on a prescribed rating scale. April 5, 2002 6 Psychological 1. The Training Office will schedule 1. The Personnel and Training Testing interviews and testing with a Office will schedule an interview psychologist for each applicant and testing with a psychologist for under consideration, the highest listed applicant. 2. An applicant must achieve 2. The applicant must achieve minimum standards in the testing minimum standards in the testing and interview which allows the and interview which allows the psychologist to certify him/her, psychologist to certify him/her. 3. If an applicant receives a negative 3. If an applicant receives a negative finding on the psychological finding on the psychological examination and interview, he/she examination, he/she may appeal may appeal that finding to the that finding to the Civil Service Civil Service Commission in Commission in accordance with the accordance with the guidelines guidelines as established in Chapter established inChapter 143.022 (c) 143.022 (c) of the Texas Local of the Texas Local Government Government Code. Code. The Texas Commission on Law Enforcement Officer Standards and Education requires psychological testing on all candidates. Physical The physical examination will The physical examination will Examination conform to the Denton Fire conform to the Denton Police Department requirements and Denton Department hiring standards. Each Fire Department Medical Standards. applicant will be required to undergo a Each applicant will be required to thorough health assessment, which undergo a thorough health assessment will include a drug screen. The testing which will include a drug screen. The professional(s) will review the results testing professional(s) will review the of the test with the applicant and results of the tests with the applicant determine his/her suitability for the and determine his/her suitability for position of Recruit Police Officer. the position of Recruit Firefighter. The Texas Commission on Law Enforcement Officer Standards and Education requires a physical test on all candidates. Application Review If at any time an area of concern has been identified by the Background Investigator, the application will be referred, through the chain of command, to the Fire Chief for review and disposition. Any decision regarding continued consideration or rejection will be final. Conditional Job If the applicant meets the If the applicant meets the Offer requirements he/she will be given a requirements, he/she will be given a written Conditional Job Offer that written Conditional Job Offer that conforms to the American with conforms to the American with Disabilities Act. Disabilities Act. Each department's hiring process is based on the specific requirements of the jobs and is fairly standard when compared to industry procedures. April 5, 2002 7 These pictures depict some physical aspects of fire fighting. Chapter 143.023 (d) and (e) defines eligibility for beginning positions. (d) An applicant may not be certified as eligible for a beginning position with a fire department unless the applicant meets all legal requirements necessary to become eligible for future certification by the Commission on Fire Protection Personnel Standards and Education. (e) An applicant may not be certified as eligible for a beginning position with a police department unless the applicant meets all legal requirements necessary to become eligible for future licensing by the Commission on Law Enforcement Officer Standards and Education. The minimum standards required by the Texas Commission on Law Enforcement Officer Standards and Education for newly appointed officers are listed in the Texas Administrative Code, Title37, Part 7, Chapter 217, Rule §217.1. Cities are free to set hiring standards above those listed in this section, but they can not set their standards below the minimum established by the Texas Administrative Code. Promotions Chapter 143 also defines the eligibility for promotion and the process for filling promotional positions. Section 143.028(a) specifies "...a fire fighter is not eligible for promotion unless the person has served in that fire Department in the next lower position or other positions specified by the commission for at least two years at any time before the date the promotional examination is held...". Section 143.028(b) specifies "...a police officer is not eligible for promotion unless the person has served in that police Department in the next lower position or other positions specified by the commission for at least two years immediately before the date the promotional examination is held...". Promotional Source Material and Examination Notice For promotional exams, the Commission must post a notice that lists the sources from which the examination questions will be taken at least 90 days before the examination date. Additionally, a "notice of exam" must be posted at least 30 days before the examination date. This notice must be posted in plain view in the main lobby of City Hall and in the Commission's office. The Commission shall also furnish sufficient copies of the notice for April 5, 2002 8 posting in the stations or sub departments in which the position will be filled. These postings are posted in the same locations as the entry-level notice of exam outlined earlier in this report. Promotional Testing Fire Department Each year prior to the promotional tests, the Support Division Chief presents a list of source materials for approval to the Fire Chief that he deems to meet the job requirements for each position. The list for each position is then sent to the Civil Service Commission for review and approval at least 90 days prior to the scheduled promotional test. After approval, fire administration posts the source materials list at each fire station and ensures that all source materials are readily available to all Fire Department employees. Each year, the Fire Chief and Support Division Chief review the source materials for each position to ensure all materials are still relevant and up to date. The Fire Chief closely examines the job descriptions for each position being tested. He sets priorities for what he expects each position to know. Based on the number of source materials, he establishes how many questions from each source he will write. This breakdown is then posted for all participants to review so they will know how much weight each source will carry on the examination. Based on the priorities of each job, the Fire Chief writes a 100-question examination. Previously, the Fire Department used an outside source to develop the questions for each test. However, due to the number of appeals on each test, Fire staff decided to write the test questions in-house by the Fire Chief. The current Fire Chief has several years experience developing tests for college level courses which he taught. By writing these tests, the Fire Chief is able to ensure that the tests are relevant to the promotional requirements. In addition, if there are appeals, it is much easier to evaluate the challenged questions. A department level appeal process is conducted for all potentially appealable questions prior to the questions being presented to the Civil Service Commission for appeal. Typically, after an explanation for each appealable question is made to the promotional candidate, the process ends and the question is not appealed to the Commission. If a candidate can prove that the official answer to the test question is incorrect, that particular question is thrown out and the test results are adjusted for all candidates who took the examination. If the department's appeal process does not successfully resolve the issue, the promotional candidate may then appeal the question and it's answer to the Commission. The Commission is informed that a department level appeals process occurs prior to the appeal to the Commission. Police Department The Police Department's promotional process is different from the Fire Department's promotional process. The Police Department uses an outside test developer. Justex Systems, April 5, 2002 9 Inc. has been used as the test developer since 1995. Prior to contacting the test developer, the Police staff provides a list of source materials to the Human Resources department that they deem relevant to promotional positions. After the Commission approves the source material, the Human Resources Department sends the source material list to the test developer. The test developer sends several hundred questions from a database that are relevant to the requested source material. The Police staff reviews the questions and chooses the most relevant 100 questions. The selected questions are returned to the test developer in order to generate the test. Appeals Chapter 143 allows each promotional candidate the opportunity to review his/her examination and answers, the grading, and the source material for the examination. If dissatisfied, the candidate may appeal, within five business days, to the Commission for review. If any answers are changed or the Commission throws out questions, the scores are recalculated for all promotional candidates and the eligibility list is revised for the Commission's approval. Promotional Bypass Pursuam to section 143.036(0, "Unless the departmem head has a valid reason for not appointing the person, the department head shall appoint the eligible promotional candidate having the highest grade on the eligibility list. If the departmem head has a valid reason for not appointing the eligible promotional candidate having the highest grade, the department head shall personally discuss the reason with the person being bypassed before appoiming another person. The department head shall also file the reason in writing with the Commission. On application of the bypassed eligible promotional candidate, the reason the department head did not appoint that person is subject to review by the Commission." Challenges Associated with Chapter 143 Being a Chapter 143 City provides some unique challenges to creating a diversified workforce that is reflective of the community. Although the City of DeNon can aggressively recruit protected class applicants, the City cannot guarantee they will apply or show up at the test site. Additionally, the City cannot guarantee their placement on the eligibility list. Chapter 143 requires the City to begin the selection process with the applicant who scores the highest grade on the written examination. Denton's hiring process is often compared to other cities, many of which are not Chapter 143 cities and, therefore, are not required to follow the same procedures to which DeNon is legally bound. A listing of Chapter 143 cities is included in Appendix E. A primary challenge for attracting qualified protected class applicants is the competition from all federal, state, and local law enforcement and fire protective agencies as well as the public sector. Qualified, protected class applicams, especially those who are bilingual and/or hold college degrees, are actively recruited by agencies and businesses at all levels. Additionally, the applicam's personal preferences, coupled with issues such as relocating, April 5, 2002 10 make it difficult to recruit some individuals. Entry-level exams are given every six months. Scheduling conflicts with other local agencies, applicam responsibilities such as work or school, and travel costs may preclude or deter qualified individuals from attending the test. Those applicants who miss a test may find employment with other agencies before the next test is given. Similarly, the number of applicants the department can consider is directly related to the number of vacancies that exist. The more Police Officers or Firefighters the departments can hire from any given eligibility list increases the chances that the percentage of protected class candidates will be considered for employmem and, subsequemly, hired. For example, from 1995 through 1998, the Police Departmem was awarded 24 additional police officer positions through the COPS grant program. The department was able to hire four Hispanic males and three females who are still employed today. Appendices C and D comain additional protected class testing and hiring information. Efforts to Overcome These Challenges The City of Denton realizes the importance of ensuring that the make-up of its workforce is reflective of the community and values the benefits that a diverse workforce provides the organization and community. Because of DeMon's sincere commitment to meeting this goal, the City has implemented an aggressive recruiting program. Representatives from Human Resources, Police, and Fire regularly attend career and job fairs at local evens, colleges and universities, and I Ihigh sch°°ls' Whenever p°ssible' recruiters are ch°sen f°r City of Denton Recruiting Banner... just one resource we use at recruiting assignments based on the targeted group. Recently, Fire fairs toattractpotentialapplicants, dedicated some of its recruiting efforts to include local churches and establishments, especially those that target protected class applicants. Please refer to Appendix F for a complete listing of the recruiting fairs and activities. Another strategy employed to diversify the sworn workforce is the increase in civilian staffing of positions. Recruiting qualified protected class applicants to fill these positions provides them more exposure to the civil service positions. Since 1996, one African- American male and one African-American female in the Police Departmem successfully made the transition from jailer to police officer. The African-American male recemly promoted to Sergeant. Both departments use every opportunity to recruit individuals. Programs such as the Citizen's Police Academy, the Citizen's Fire Academy, the Citizen's Youth Academy (Police), and the Fire Explorer Youth Program provide individuals with knowledge about the overall operation of the departments. Though participants may not be interested in employment with the departments, they may have friends or relatives who they could refer for employment. April 5, 2002 1 1 The Police Department provides internship opportunities for local criminal justice students and several officers act as instructors at local colleges and police academies. Further, the Community Policing philosophy increases contact between officers and citizens and has increased officer participation in the activities of civic organizations. Because Fire staff has not been satisfied with the results of the intensive and extensive efforts to hire protected class applicants, in 2001 the Fire Chief requested that the City Council approve a Fire Department Diversity Task Force to review the recruitment and hiring procedures. The task force was chaired by Davina Tomlinson (African-American) of the Human Resources Department and consisted of three African Americans and three Hispanics from the community who were appointed by former City Manager, Michael Jez, and confirmed by the City Council. The task force met three times. The focus of the task force was to make recommendations to assist with attracting, recruiting, and hiring protected class applicants. The task force made several recommendations. Their key recommendation was that the focus of recruitment should shift from outside the community to the local level. April 5, 2002 12 Appendix A FIRE RECRUIT JOB DESCRIPTION The fundamental reason this classification exists is to protect life and property through firefighting and EMS activities that are often performed under conditions requiring strenuous physical exertion. This is an entry-level firefighting trainee position and is under the close supervision of a Fire Captain. MINIMUM QUALIFICATIONS: Age - A qualified applicant: 1. Must be at least eighteen (18) years of age. 2. Must not have reached his/her thirty-sixth (36th) birthday. Criminal Record - A qualified applicant will not: 1. Be on probation for any criminal offense above the grade of Class C misdemeanor. Have been convicted of a Class A misdemeanor offense within the last twelve (12) months. Have been convicted of a Class B misdemeanor within the last six (6) months. Have ever been convicted of a felony offense. Driving Record - A qualified applicant must: 1. Reflect a mature responsibility toward his/her driving privilege. 2. Conform to the Department's standard for driving history. DWI History - A qualified applicant must: 1. Have no DWI convictions within last five (5) years. 2. Not be on suspension for a breath test refusal. Education - A qualified applicant must: 1. Have earned a high school diploma or a GED. 2. Possess the ability to read, learn and understand the rules and regulations, policies and procedures governing the firefighter's position. 3. Possess the ability to read and write the English language clearly and accurately. 4. Possess the ability to pass paramedic school. F. Moral Character - A qualified applicant must be of good moral character. Vision 1. 2. - A qualified applicant must: Have vision correctable to 20/20 in both eyes. Have normal color vision. April 5, 2002 13 Appendix B POLICE RECRUIT JOB DESCRIPTION The fundamental reason this classification exists is to protect life and property by enforcing state and local laws, responding to calls for assistance, and working with the community to solve problems. MINIMUM QUALIFICATIONS: mo Age - A qualified applicant: 1. Must be at least twenty-one (21) years of age. Applicants are eligible at eighteen (18) years old if they possess an Associates degree OR have completed 60 semester hours of credit from an accredited college or university OR possess an honorable discharge from the armed forces of the United States after at least two years (24 months) or active duty service. 2. Must not have reached her/his thirty-sixth (36th) birthday unless the applicant has at least five (5) years prior experience as a regular peace officer or five (5) years of active military experience. Even with this prior experience, must not have reached his/her 45th birthday. Bo Criminal Record - A qualified applicant must pass an intensive criminal history background check and meet the standards set by the department. Co Driving Record - A qualified applicant must: 1. Possess a valid Class "C" driver's license 2. Meet the standards set by the department D. DWI History - A qualified applicant must meet the standards set by the department. mo Education - A qualified applicant must: 1. Have earned a high school diploma OR 2. Have a GED and has completed at least twelve (12) hours at an institution of higher education with at least a 2.0 grade point average OR 3. Possess an honorable discharge from the armed forces of the United States after at least 24 months of active duty service Fo Licenses and Certificates - A qualified applicant must meet Texas State Peace Officer licensing requirements within one calendar year of the date of employment as required by the Texas Commission on Law Enforcement Officer Standards Education Go Vision - A qualified applicant must: 1. Have vision correctable to 20/20 in both eyes. 2. Have normal color vision. April 5, 2002 14 Ho Other Skills and Abilities - A qualified applicant 1. Must have sufficient muscular skills and coordination to respond constructively to Departmental training programs. 2. Must have the ability to maintain harmonious relationships with other employees and the public. 3. Must have the ability to communicate clearly and accurately. 4. Must have the ability to write and speak English legibly. April 5, 2002 1 5 Appendix C FIRE DEPARTMENT RECRUITING/HIRING HISTORY 1990: In 1990 no examination was given for Fire Recruit. 1991: In 1991, the examination was open to people at least 18 years of age with a high school diploma or GED. 225 candidates took the exam and four were hired from this list after litigation was brought by the Denton Fire Fighters Association on behalf of two people who were bypassed on the eligibility list because they were not certified. The Fire Fighters Association won the suit and the two candidates who were not certified were hired. 1992: In 1992, an examination was given and 223 candidates passed the examination of whom nine were hired. 1993: In 1993, an examination was given and 135 candidates participated of whom four were hired. 1994: In 1994, an examination was given and 185 people took the exam; however, no one was hired from this list. 1995 to 1996: Between 1995 and 1996, the City only considered certified or certifiable firefighters as eligible to take the annual test for recruit firefighters. Three tests were administered and averaged only 47 applicants per test with less than 5% representation of protected classes. Prior to the certified/certifiable rule, the City averaged 162 applicants per test with an average of 24% of the participants being protected classes. August 1995 Females African Hispanic American Asian American Indian 33 0 0 0 0 0 9 April 5, 2002 16 Februar ~ 1996 Females African Hispanic American Asian American Indian 54 0 0 0 0 0 7 On July 20, 1996, another examination was given testing only certified and certifiable firefighters. 55 passed the examination and two were hired from the list. The diversity numbers included one female, one Hispanic male, and one African American male taking the test, but none of them scored high enough on the list to get a job. Jub 1996 Females African Hispanic American Asian American Indian 55 1 1 1 0 0 2 The 1995/1996 testing/hiring philosophy met the City's immediate need at that time to place firefighters on the fire engines in the fire stations as quickly as possible. Hiring only certified/certifiable firefighters certainly reduced the time to have qualified firefighters on duty, which ultimately saved the City substantial money and expedited the reopening of a needed fire station (Central in April of 1996). In that aspect, the goal was met. However, no protected class applicants were hired in the process and very few even took the tests. It was very apparent that requiring certification prior to employment greatly reduced the chances for hiring protected class members. In 1997, based on the recommendation of the Fire Chief, the City Council and Civil Service Commission changed the eligibility requirements for recruit firefighter to 18 years old and a high school graduate. The recommendation was made based on the fact that, in a civil service system, the first step to getting protected class individuals hired is to assure a strong representation at the test. At a minimum, there must be a good cross section of our community at the test just to give target groups a chance to place high enough on the list. If they are underrepresented at the test, it is likely, due to the laws of probability, that the majority group will top out on the test. In addition, our recruitment efforts were hampered with the certified/certifiable rule because it eliminated a good portion of the target groups for recruitment. April 5, 2002 17 Two examinations were given in 1997, returning to the criteria of 18 years old and a high school diploma or GED. Although diversity numbers improved significantly, no protected class applicants scored high enough to be hired from the list. Februar ~ 1997 Females African Hispanic American Asian American Indian 224 14 7 11 4 0 1 Au rust 1997 Females African Hispanic American Asian American indian 150 8 9 10 5 0 4 1998: In 1998, an examination was given to 219 candidates, with no protected class applicants scoring high enough to receive a job offer. March 1998 Females African Hispanic American Asian American indian 219 13 7 10 3 0 2 1999: The Fire Department, in conjunction with the Human Resources Department of the City of Denton, mapped out a strategy for improving the recruitment of protected class individuals for the Fire Recruit Civil Service Examination to be held on February 13, 1999. it was decided to have examinations in Denton and Marshall, Texas that would be given at the same exact time. The place for the examination in Marshall, Texas, was Wiley College, a April 5, 2002 1 8 historical African American College. The college had the facilities and agreed to facilitate the exam. A recruiter was on campus in October and again in the moNh of December 1998. The recruiter spent two days on campuses at TWU and Wiley College in the cafeteria with the goals of: handing out brochures; speaking with youth concerning a career in the fire service; obtaining information from potential candidates so Human Resources could mail applications and study guides to them for the examination; and, giving out information concerning the number of career opportunities, salaries, work schedules and benefits of being an employee of the City of DeNon. This special effort also included trips to the Corpus Christi, Kingsville Campus of Texas A&M. The Texas A&M at Commerce was visited along with Prairie View A&M, Southeastern Oklahoma at Durant, Oklahoma, and Southern Arkansas in Magnolia, Arkansas. The recruiters also wen to the Texas EMS Conference in Austin, SACUPA (San ANonio area recruiting eveN), and other local area recruiting seminars. The University of North Texas Campus Diversity group gave us a list of predominaNly African-American schools. This list included Texas College in Tyler, Jarvis Christian College in Hawkins, Grambling in Ruston, Louisiana, and Southern University in Shreveport, Louisiana. We recruited at these colleges. The results of this effort were not evident at the test site in Marshall as only 52 people showed up to take the test. The number of African-Americans that responded was 37. In a sense, the recruiting effort was successful because there were more than 550 people present at the exam in Denton. In Marshall, no African-American applicant made over a score of 89 and, therefore, had no impact on the list. In October 1998, sixteen people were hired. In February 1999, using the February 1998 test list, twelve more people were hired but none scored below 93. Februar ~ 1999 Females African Hispanic American Asian American indian 634 33 36 46 4 0 28 (1 female) 581 (Denton) 53 (Marshal0 2000: In 2000, two examinations were administered, one in February and one in September. 377 took the exam in February and two were hired with one being a female. Then in September, 271 took the exam and two were hired - one American indian and one female. April 5, 2002 19 Februar ~ 2000 Females African Hispanic American Asian American Indian 377 N/A N/A N/A N/A N/A 2 (1 female) Se ~tember 2000 Females African Hispanic American Asian American Indian 271 14 5 12 3 0 2 (1 female and 1 American Indian) 2001: The Fire Department Diversity Task Force met three times in early 2001 and made several recommendations to assist the Fire Department to recruit and hire protected class individuals. Their key recommendation was to focus more recruiting locally, rather than go outside the community. Based on that recommendation, the Fire Department almost exclusively recruited in the Denton area to prepare for the 2001 test. Based on the input from the Diversity Task Force, the Fire Department met with local church groups, recruited at local retail outlets to get the word out to these target groups, worked with the local universities, and recruited at all the City's Neighborhood Recreation Centers. This test provided the first opportunity to hire a Hispanic. Se ~tember 2001 Females African Hispanic American Asian American Indian 323 19 13 23 4 0 3 (1 Hispanic) April 5, 2002 20 Appendix D POLICE DEPARTMENT RECRUITING/HIRING HISTORY At the time this report was prepared, the actual number of applicants hired from each test could not be confirmed; however, the diversity make-up of those tested is included. 1990: In 1990, an examination was given on September 15 and March 17 for Police Recruit. 1991: In 1991, an examination for Police Recruit was given in May and 115 took the examination with 69 people passing. The protected class representation was 17.4% of those taking the examination with 10% of protected class applicants passing. Additionally, another Police Recruit examination was given in November. 1992: A Police Recruit examination was given on May 22. 1993: A Police Recruit examination was given in November and 120 persons took the examination with 95 persons passing. Protected class applicants represented 19% of those taking the examination. November 1993 Females African Hispanic American Asian American Indian 120 6 6 9 2 0 1994: A Police Recruit examination was given in May with 134 people taking the examination and 108 persons passing. April 5, 2002 21 Ma 1994 Females African Hispanic American Asian American Indian 134 11 3 13 6 0 1995: A Police Recruit examination was given in May and 147 persons took the examination with 116 persons passing. Ma-1995 Females African Hispanic American Asian American Indian 147 16 11 10 3 3 In November another examination was given with 102 applicants testing and 85 passing. Thirty-four protected class applicants passed the examination. November 1995 ~ ] ir~l ~ Females African Hispanic American Asian American Indian 102 10 4 10 9 1 1996: A Police Recruit examination was given in May with 160 applicants testing and 131 passing. April 5, 2002 22 Ma 1996 Females African Hispanic American Asian American Indian 160 10 4 20 12 4 In November another examination was given with 86 applicants testing and 74 passing. November 1996 Females African Hispanic American Asian American Indian 86 10 4 5 3 1 1997: A Police Recruit examination was given in May with 116 applicants being tested and 98 passing. Ma-1997 Females African Hispanic American Asian American Indian 116 14 7 4 5 2 In November another examination was given with 221 applicants testing and 177 passing. April 5, 2002 23 November 1997 Females African Hispanic American Asian American indian 221 21 14 27 10 1 1998: A Police Recruit examination was given in May with 129 applicants testing and 96 passing. Ma-1998 Females African Hispanic American Asian American indian 129 19 11 12 1 2 In November another examination was given with 83 applicants testing and 62 passing. November 1998 Females African Hispanic American Asian American indian 83 7 8 3 0 1 1999: A Police Recruit examination was given in May with 96 applicants testing and 83 passing. April 5, 2002 24 Ma-1999 Females African Hispanic American Asian American Indian 96 7 3 8 0 1 2000: A Police Recruit examination was given in January with 118 applicants testing and 97 passing. Januar 2000 Females African Hispanic American Asian American indian 118 10 4 13 0 0 In August another examination was given with 95 applicants testing and 73 passing. Au ,ust 2000 I~ .~'F2/'~ ~ ~F~F~Ii~ [~1 ~k'~ ~ ~1 ~ ~ ~:~ m Females African Hispanic American Asian American indian 95 14 4 13 2 0 2001: A Police Recruit examination was given in February with 86 applicant testing and 72 passing. April 5, 2002 25 Februar ~ 2001 Females African Hispanic American Asian American Indian 86 10 5 9 0 0 In August another examination was given with 98 applicants testing and 78 passing. Females African Hispanic American Asian American Indian 98 16 9 13 1 1 April 5, 2002 26 Appendix E Amarillo Austin Arlington College Station Dallas Baytown E1 Paso Beaumont Gainesville Carrollton Grapevine Corpus Christi Highland Village Fort Worth Lewisville Garland Grand Prairie McKinney Odessa Greenville Richardson Hurst Irving Killeen Lubbock Mesquite Pasadena Plano San Antonio Waco Wichita Falls Source: City of Denton survey, 2002 1999 Texas Police and Fire Clearinghouse survey Note: This list is not inclusive of all Chapter 143 cities April 5, 2002 27 Appendix F Recruiting Fairs and Activities The chart below outlines the recruiting fairs and activities that staff has participated in since 1998 or will be participating in during 2002. Arts and Jazz Festival Denton, TX Austin EMS Conference Austin, TX Baylor University's Career Fair Waco, TX Central Texas College Killeen, TX Cinco de Mayo* Denton, TX Dallas Independent School District Job Fair Dallas, TX Fort Worth Independent School District Job Fair Fort Worth, TX Fuego y Alma Celebration* Denton, TX Golden Triangle Mall Denton, TX Greater Denton Career & Business Fair Denton, TX Juneteenth Celebration* Denton, TX Local Churches* Denton, TX Louisiana Tech Univeristy Ruston, LA MAC3 Job Fair Arlington, TX Mayor's Committee on Persons with Disabilities* Fort Worth, TX McNeese State University* Lake Charles, LA National Forum for Black Public Administrators* Austin, TX NCOA Military Job Fair* Tyler, TX North Louisiana University Monroe, LA Northwestern State University Natachitoches, LA Red River Career Expo Lawton, TX SACUPA* San Antonio, TX Sam Houston State University Huntsville, TX San Antonio EMS Conference San Antonio, TX San Antonio Military Job Fair Randolph AFB, TX Southwest Oklahoma Lawton, OK Southwest Texas Career Day San Marcos, TX Southwest Texas State University San Marcos, TX Southwest Texas State University Abilene, TX St. Mary's College* San Antonio, TX St. Phillip's College* San Antonio, TX Stephen F. Austin Career Day Nacogdoches, TX Tarleton State University Stephenville, TX Tarrant County Community College Fort Worth, TX Texas A&M University* Kingsville, TX Texas A&M University* Commerce, TX Texas College* San Antonio, TX Texas Woman's University Denton, TX University of North Texas Denton, TX University of Texas at Dallas Richardson, TX University of Texas at San Antonio San Antonio, TX West Central State University Abilene, TX *Targeted for protect class applicants April 5, 2002 28 Agenda 02-013 04/16/02 WS 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: April 16, 2002 Planning & Development Dave Hill, 349-8314 5/~ SUBJECT Receive a report, hold a discussion, and give staff direction regarding the specific creation of a Developmem Code Citizens Committee, and the formation of citizens committees for other city functions. BACKGROUND In early March 2002, a citizen report was made requesting the creation of a "citizens' review committee" to participate in the ongoing review of the DeNon Developmem Code. Council Member Phillips responded later in the meeting, requesting that the formation of such a committee be discussed during a work session. Council Member McNeill made a similar request, asking that the use of citizens committees in general be discussed during a work session. The rationale used to justify the creation of a citizens code committee was apparemly to coumer- balance the role of a Chamber of Commerce committee that participated during the code review process. The Chamber committee formed on its own, organized its own meetings, and was supported by its own staff. City staff was an invited participam, and the purpose of the series of Chamber committee / city staff meetings was to clarify specific provisions of the developmem code that would have been ambiguous and subject to imerpretation. The decision to review the draft code with those having to work with the regulations on a regular basis was well founded and will result in more efficiem design review, providing a cost savings to both developers and taxpayers. Speculation that the "policies and imem" of the code were influenced solely by the Chamber Committee is untrue. In fact, whenever policy issues were raised during Chamber / staff meetings, those policy issues were forwarded to the Planning & Zoning Commission and/or the City Council for resolmion. Participation in the Chamber meetings is not an exclusive city staff function. If any citizens group forms on its own, organizes its own meetings, and handles its own administrative needs, city staff has demonstrated over the past several years that it will meet with them if invited. City staff considers the Planning & Zoning Commission to be an existing "citizens' review committee". The Planning Commissioners are appoimed by City Council, and are designated by City Charter to act as an advisory body to the City Council regarding planning and developmem matters. The Commission committed itself to exhaustive review of the code - it formed subcommittees to focus on specific chapters of the code, and held numerous work sessions, public meetings, and public hearings. To form another "citizens' review committee" appears to be duplicative, particularly since the quarterly review process required for the developmem code will include the Planning & Zoning Commission. With respect to the formation of citizens committees in general, 15 officially recognized boards and commissions exist at the current time, as listed below: 1. Airport Advisory Board z. Animal Shelter Advisory Committee 3. Civil Service Commission 4. Community Development Advisory Committee 5. Construction Advisory & Appeals Board 6. Denton Housing Authority 7. Historic Landmark Commission 8. Human Services Advisory Committee 9. Library Board 10. Parks, Recreation And Beautification Board 11. Planning And Zoning Commission 1 z. Public Utilities Board 13. TMPA (Texas Municipal Power Association) Board Of Directors 14. Traffic Safety Commission 15. Zoning Board Of Adjustment With an average of 7 members, Council curremly appoims approximately 105 citizens to 15 city boards and commissions. All of the currem boards and commissions are supported by city resources and city staff. If a specific city imerest is not adequately served by these citizens, staff suggests that the unmet need be expressed to the city manager, who is the administrative officer responsible for the allocation of staff resources. In many instances, city staff is approached with requests for staff time or support, and the ability to evaluate individual circumstances to determine the efficacy of the use of staff resources is an importam responsibility that should remain flexible. The creation of a new City of DeNon citizens committee will require new resources and may delay decision-making at a time when resources are limited and city governmem is already criticized for its inability to act quickly and efficiemly. OPTIONS The work session has been scheduled to facilitate discussion of several options. If a specific problem situation exists that has raised the question of the need for a citizens committee, the problem should be idemified and referred to staff for further analysis. RECOMMENDATION Staff recommends that a citizens' review committee for the developmem code should not be created. If City Council has specific issues that should be addressed regarding the code, the Planning & Zoning Commission should be asked to serve in an advisory capacity. If a Council Member is imerested in the formation of a citizens committee to address issues that do not fall within the purview of the Council or its boards and commissions, the city manager should be asked to develop the appropriate administrative mechanism to address the need as efficiemly and responsively as possible. ESTIMATED PROJECT SCHEDULE Not applicable. PRIOR ACTION/REVIEW This issue has not been discussed by Council recently. The City Council has created ad hoc committees to address specific issues within a finite period of time, after which the committee was dissolved. FISCAL INFORMATION Not applicable. ATTACHMENTS None. Respectfully submitted: Dave Hill Asst. City Manager - Development Services This page left blank intemionally. Agenda 02-013 04/16/02 #8 CITY OF DENTON CITY COUNCIL MINUTES March 26, 2002 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, March 26, 2002 at 4:30 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas. PRESENT: Mayor Brock; Mayor Pro Tem Beasley; Council Members Burroughs, Fulton, McNeill, Phillips, and Redmon. ABSENT: None 1. The Council received a report, held a discussion and gave staff direction regarding a professional services agreement with The Mercer Group to perform the services as proposed in RFSP #2790 - A Broad-Based Operational Analysis of the City of Denton Non-Utility Departments. Betty Williams, Director of Management and Public Information, reviewed the history of the development of the proposal. Staff needed Council direction on whether to proceed with the study, if so which alternative to approve and to identify how to fund the project. Council held a discussion regarding the value of a study, a broad-based versus in-depth study, timing of the study and funding of a study. Council Member Fulton suggested accepting Alternative One and move forward with the study. Following discussion, Council consensus was that while this study would be beneficial, it was not budgeted for and a budget amendment would not be justified at this time. Council would consider an in-depth study during the next budget cycle. 2. Staff responded to Council's requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of March 26, 2002. Following the completion of the Work Session, the Council convened in a Closed Meeting to consider the specific items listed below. 1. The Council considered the following in Closed Meeting: A. Personnel Matters - Under TEXAS GOVERNMENT CODE Section 551.074 Evaluation of Municipal Judge Evaluation of City Attorney Evaluation of City Manager Regular Meeting of the City of Denton City Council on Tuesday, March 26, 2002 at 6:30 p.m. in the Council Chambers at City Hall. PRESENT: Mayor Brock; Mayor Pro Tem Beasley; Council Members Burroughs, Fulton, McNeill, Phillips, and Redmon. ABSENT: None City of Denton City Council Minutes March 26, 2002 Page 2 1. Pledge of Allegiance The Council and members of the audience recited the Pledge of Allegiance to the U.S. and Texas flags. PROCLAMATIONS/PRESENTATIONS 2. Mayor Brock presented the March Yard-of-the-Month Awards to: Charlie and Lynn Davis Gene and Martha Rogers Herclea Pruitte Sandy and Barbara Brown Ben and Linda Kiker Ethel Woodby Wanda M. Butts Exposition Mills-Denton Factory Stores 3. Recognition of staff accomplishments. City Manager Conduffpresented staff accomplishments. CITIZEN REPORTS 4. Amy Fuller regarding the City of Denton drainage fee. Ms. Fuller was not present at the meeting. 5. Gerard Hudspeth regarding citizen concerns with the City. Mr. Hudspeth stated that he still had concerns regarding the Civil Service exam for Denton fire fighters. 6. Willie Hudspeth regarding citizen concems with the City. Mr. Hudspeth expressed a concern regarding the process of selecting fire fighters in the City of Denton. He also expressed concern regarding the Council's decision with the Denton Housing Authority project. 7. Ross Melton regarding the budget, the elections, Code Enforcement and the City Attorney's office. Mr. Melton expressed his concerns regarding the budget for Code Enforcement and the processes associated with the City Attorney's Office. 8. Dessie Goodson regarding dangerous intersections. City of Denton City Council Minutes March 26, 2002 Page 3 Ms. Goodson was not present at the meeting. CONSENT AGENDA Council Member Fulton requested that Item #14 be pulled for separate consideration. Item #20 was not considered. Burroughs motioned, Beasley seconded to approve the Consent Agenda and accompanying ordinances and resolutions with the exception of item #14 and #20. On roll vote, Beasley "aye", Burroughs "aye", Fulton "aye", McNeill "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. Approved the minutes of February 12, 2002, February 15, 2002, February 19, 2002 and March 5, 2002. 10. NO. 2002-075 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDED PROFESSIONAL SERVICES AGREEMENT WITH BiRKHOFF, HENDRICKS & CONWAY, L.L.P. (FORMERLY SHiMEK, JACOBS & FiNKLEA, L.L.P), FOR ENGINEERING SERVICES PERTAINING TO THE CONSTRUCTION PHASE AND FOR MATERIALS TESTING REGARDING THE CITY OF DENTON NORTHWEST SERVICE AREA ELEVATED WATER STORAGE TANK; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. 11. NO. 2002-076 AN ORDINANCE APPROVING AN INTERLOCAL AMBULANCE AGREEMENT BETWEEN THE CITY OF DENTON AND THE CITY OF NORTHLAKE FOR AMBULANCE SERVICES; AND DECLARING AN EFFECTIVE DATE. 12. NO. 2002-077 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT IN THE FORM OF TASK ORDERS NO. 02-A AND 02-B WITH R. J. COVINGTON CONSULTING, LLC, FOR REGULATORY SERVICES AND 2002 TRANSMISSION COST OF SERVICE AND EARNINGS REPORT FILINGS RELATING TO OVERALL RESTRUCTURING IMPLEMENTATION FOR DENTON MUNICIPAL ELECTRIC; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. 13. NO. 2002-078 City of Denton City Council Minutes March 26, 2002 Page 4 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE EXPENDITURE OF FUNDS FOR PAYMENTS BY THE CITY OF DENTON FOR ELECTRICAL ENERGY TRANSMISSION FEES TO THOSE LISTED CITIES AND UTILITIES PROVIDING ENERGY TRANSMISSION SERVICES TO THE CITY OF DENTON; AND PROVIDING AN EFFECTIVE DATE (PURCHASE ORDER 103406 TO CITY PUBLIC SERVICE IN THE AMOUNT OF $61,692 AND PURCHASE ORDER 103853 TO AMERICAN ELECTRIC POWER SERVICE CORP. iN THE AMOUNT OF $137,240.25 FOR A TOTAL AMOUNT OF $198,932.25). 15. NO. 2002-080 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WITH OVERLAND PARTNERS FOR CLEAR CREEK NATURAL HERITAGE CENTER AS SET FORTH iN THE CONTRACT; AND PROVIDING AN EFFECTiVE DATE (PSA 2694 - PROFESSIONAL SERVICES AGREEMENT FOR CLEAR CREEK NATURAL HERITAGE CENTER, FOR A TOTAL AMOUNT OF $104,700). 16. NO. 2002-081 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WITH BUCHER, WILLIS & RATLiFF CORPORATION, FOR ITS (INTELLIGENT TRANSPORTATION SYSTEM) DEPLOYMENT PLAN AS SET FORTH IN THE CONTRACT; AND PROVIDING AN EFFECTiVE DATE (PSA 2826 - PROFESSIONAL SERVICES AGREEMENT FOR ITS DEPLOYMENT PLAN TO BUCHER, WILLIS & RATLiFF CORPORATION, FOR A TOTAL OF $49,694). 17. NO. 2002-082 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A SERIES OF CONTRACTS FOR THE PURCHASE OF FLEET VEHICLES; AND PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2781 - FLEET VEHICLES AWARDED TO THE LOWEST RESPONSIBLE BIDDER EACH ITEM AS LISTED, TOTAL EXPENDITURE OF $412,251.79). 18. NO. 2002-083 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF PADMOUNTED SWITCHGEARS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2796 - ANNUAL PRICE AGREEMENT FOR PADMOUNTED SWITCHGEAR AWARDED TO PRIESTER SUPPLY CO. IN THE ESTIMATED AMOUNT OF $300,000). City of Denton City Council Minutes March 26, 2002 Page 5 19. NO. 2002-084 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE SUPPLY OF WOOD UTILITY POLES; AND PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. (BID 2802 - WOOD UTILITY POLES AWARDED TO KOPPERS INDUSTRIES, INC.) 20. This item was pulled from consideration. 21. NO. 2002-085 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL PRICE AGREEMENT FOR THE PURCHASE OF WATER METERS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2805 - ANNUAL PRICE AGREEMENT FOR WATER METERS AWARDED TO THE LOWEST RESPONSIBLE BIDDER OF EACH ITEM AS LISTED). 22. NO. 2002-086 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON PARKS AND RECREATION DEPARTMENT AND THE NORTH TEXAS UMPIRE ASSOCIATION; APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF CERTIFIED SOFTBALL OFFICIATING SERVICES AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH PROVISIONS OF STATE LAW EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETiTiVE BIDS; AND PROVIDING AN EFFECTiVE DATE (PO 103533 - NORTH TEXAS UMPIRE ASSOCIATION IN THE AMOUNT OF $40.00 PER GAME FOR AN ESTIMATED AWARD EXPENDITURE OF $43,000.) 23. NO. 2002-087 AN ORDINANCE DECLARING A PUBLIC NECESSITY EXISTS AND FINDING THAT PUBLIC WELFARE AND CONVENIENCE REQUIRES THE TAKING AND ACQUIRING OF AN APPROXIMATE 1.44 ACRE TRACT OR PARCEL OF LAND IN FEE SIMPLE FOR MUNICIPAL PURPOSES, INCLUDING FOR LANDSCAPE BUFFER PURPOSES, SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND SAID PROPERTY BEING LOCATED IN THE G. WALKER SURVEY ABSTRACT NUMBER 1330 IN THE CITY OF DENTON, DENTON COUNTY TEXAS; AND BEING A PART OF ALLEN ESTATES MOBILE HOME PARK AS SHOWN BY PLAT THEREOF RECORDED iN CABINET C. PAGE 383 OF THE PLAT RECORDS OF DENTON COUNTY TEXAS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO PURCHASE THE PROPERTY FOR ITS JUST COMPENSATION AND IF SUCH OFFER IS REFUSED, AUTHORIZING THE CITY ATTORNEY, OR HIS DESIGNEE, TO iNSTiTUTE THE NECESSARY PROCEEDINGS IN CONDEMNATION IN ORDER TO ACQUIRE THE PROPERTY NECESSARY FOR THE PUBLIC PURPOSE OF LANDSCAPE BUFFER, AND OTHER MUNICIPAL PURPOSES AND DECLARING AN EFFECTIVE DATE. City of Denton City Council Minutes March 26, 2002 Page 6 24. NO. 2002-087 AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PIPELINE CROSSING AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY FOR A WATER PIPELINE LOCATED AT MILE POST 716.220, CHOCTAW SUBDIVISION, CITY OF DENTON, DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. PUBLIC HEARING 25. The Council held a public heating and considered adoption of an ordinance granting approval of a sub-surface use of a portion of the north side of Mack Park for the purpose of utility easement in accordance with Chapter 26 of the Texas Parks and Wildlife Code; providing for a utility easement; and providing an effective date. The Mayor opened the public heating. No one spoke during the public heating. The Mayor closed the public heating. The following ordinance was considered: NO. 2002-089 AN ORDINANCE GRANTING APPROVAL OF A SUB-SURFACE USE OF A PORTION OF THE NORTH SIDE OF MACK PARK FOR THE PURPOSE OF UTILITY EASEMENT IN ACCORDANCE WITH CHAPTER 26 OF THE TEXAS PARKS AND WILDLIFE CODE; PROVIDING FOR A UTILITY EASEMENT; AND PROVIDING AN EFFECTIVE DATE. Redmon motioned, Burroughs seconded to adopt the ordinance. On roll vote, Beasley "aye", Burroughs "aye", Fulton "aye", McNeill "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. ITEMS FOR INDIVIDUAL CONSIDERATION Item #14 was considered. Council Member Fulton questioned the need for the type of materials to be used for the parking lots at the site. Vance Kemler, Director of Solid Waste, stated that the design specifications by the architect for the site considered a variety of materials for the parking lots and determined that the materials requested would be best for the site. The following ordinance was considered: City of Denton City Council Minutes March 26, 2002 Page 7 NO. 2002-079 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF THE NEW SOLID WASTE FACILITY; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2791 - SOLID WASTE FACILITY AWARDED TO PHARLAP CONSTRUCTION, INC. IN THE AMOUNT OF $2,610,600). Beasley motioned, McNeill seconded to adopt the ordinance. On roll vote, Beasley "aye", Burroughs "aye", Fulton "nay", McNeill "aye", Phillips "aye", Redmon "nay", and Mayor Brock "aye". Motion carried with a 5-2 vote. 26. The Council considered approval of a resolution confirming the appointment of Charles Wiley, by the City Manager, as Police Chief for the City of Denton Police Department; and declaring an effective date. The following resolution was considered: NO. R2002-009 A RESOLUTION CONFIRMING THE APPOINTMENT OF CHARLES WILEY, BY THE CITY MANAGER, AS POLICE CHIEF FOR THE CITY OF DENTON POLICE DEPARTMENT; AND DECLARING AN EFFECTIVE DATE. Burroughs motioned, Beasley seconded to approve the resolution. On roll vote, Beasley "aye", Burroughs "aye", Fulton "aye", McNeill "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. Following the approval of the resolution, City Secretary Jennifer Walters administered the oath of office to Chief Wiley. 27. The Council considered approval of an exaction variance of Section 35.20.2 (L) of the Code of Ordinances conceming perimeter paving for Behning Place, located on the northerly side of May Street approximately 92 feet east of Ruddell Street. The Planning and Zoning Commission recommended denial (7-0). (FOl-O031) David Solman, Assistant Director of Engineering, stated that this was the second time for consideration of this request. A prior request was denied. Prices for the project were higher than anticipated and that was what prompted the request for the second variance. Since the time of the fa'st request, the City allowed payment of fees in lieu of doing the paving on the project. Staff felt that the city could do the project for a lesser cost. The Planning and Zoning Commission recommended denial and payment of fees in lieu of construction. Mark Behning, 2224 Woodbrook, Denton, 76205 spoke in favor of the variance Beasley motioned, Fulton seconded to approve a full variance. On roll vote, Beasley "aye", Burroughs "aye", Fulton "aye", McNeill "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carded unanimously. City of Denton City Council Minutes March 26, 2002 Page 8 Mayor Brock left the meeting with a conflict of interest. 28. The Council considered approval of a resolution authorizing a steering committee of affected cities to retain legal counsel and rate case consultants in the matter of the Statement of Intent by TXU Gas Distribution to change rates; authorizing the cities to intervene in related dockets before the Texas Railroad Commission; and suspending the proposed tariff and schedule of rates of TXU Gas Distribution Company; adopting findings in the preamble; and providing an effective date. James Tramuto, 1100 Louisiana, Houston, 77002, spoke in support of the resolution. The following resolution was considered: NO. R2002-010 A RESOLUTION AUTHORIZING A STEERING COMMITTEE OF AFFECTED CITIES TO RETAIN LEGAL COUNSEL AND RATE CASE CONSULTANTS IN THE MATTER OF THE STATEMENT OF INTENT BY TXU GAS DISTRIBUTION TO CHANGE RATES; AUTHORIZING THE CITIES TO INTERVENE iN RELATED DOCKETS BEFORE THE TEXAS RAILROAD COMMISSION; AND SUSPENDING THE PROPOSED TARIFF AND SCHEDULE OF RATES OF TXU GAS DISTRIBUTION COMPANY; ADOPTING FINDINGS IN THE PREAMBLE; AND PROVIDING AN EFFECTIVE DATE. Phillips motioned, Burroughs seconded to approve the resolution. On roll vote, Beasley "aye", Burroughs "aye", Fulton "aye", McNeill "aye", Phillips "aye", and Redmon "aye". Motion carded tmanimously. The Mayor returned to meeting. 29. The Council considered approval of a resolution of the City of Denton, Texas, announcing special called meetings and changing the meeting times of the April 2 and April 9, 2002 City Council meetings; and providing for an effective date. The following resolution was considered: NO. R2002-011 A RESOLUTION OF THE CITY OF DENTON, TEXAS, ANNOUNCING SPECIAL CALLED MEETINGS AND CHANGING THE MEETING TIMES OF THE APRIL 2 AND APRIL 9, 2002 CITY COUNCIL MEETINGS; AND PROVIDING FOR AN EFFECTIVE DATE. Beasley motioned, Burroughs seconded to approve the resolution. On roll vote, Beasley "aye", Burroughs "aye", Fulton "aye", McNeill "aye", Phillips "aye", Redmon "aye", and Mayor Brock "aye". Motion carried unanimously. City of Denton City Council Minutes March 26, 2002 Page 9 29. New Business The following items of New Business were suggested by Council for future agendas: Council Member McNeill asked for the discussion on how to make the ads for DME more educational in nature which was what he thought they were going to be. Council Member McNeill asked for a work session to evaluate the way Council acted on recommendations from various boards. Council Member McNeill asked for a report regarding Brush Creek flooding and the City's responsibilities in that area. C. Council Member Burroughs requested a work session regarding major road construction projects in conjunction with TxDot and the County. Council Member Redmon requested a work session regarding the flrefighter exam and the Civil Service system. Council Member Redmon requested a report on dangerous intersections and at- risk intersections. Council Member Fulton requested a breakdown of the drainage fee as to what was federally mandated versus money that might come out of the City's budget. G. Council Member Fulton requested information regarding the vacant Fire Department Battalion Training Chief position. Council Member Fulton requested information on the completing of Windsor Drive to Loop 288 and the need for sidewalks on at least one side of the street. Council Member Phillips requested information regarding training fees for the lire fighters and police officers. 30. Items from the City Manager City Manager Conduff reminded the council about the reception for new police chief that would be held on Friday. 31. There was no continuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. 32. The Council took the following official action on Closed Meeting Item(s) under Sections 551.071-551.086 of the Texas Open Meetings Act. Burroughs motioned, Perry seconded that based on Council's discussion in Closed Session regarding the compensation for the Municipal Judge, the City Attorney and the City Manager, that each receive a 4% salary increase recognizing their performance with allocation to their retirement versus active pay at their discretion. On roll vote, Beasley "aye", Burroughs "aye", City of Denton City Council Minutes March 26, 2002 Page 10 Fulton "aye", McNeill "aye", Phillips "aye", Redmon "aye", and Mayor Brock carried unanimously. With no further business, the meeting was adjourned at 8:21 p.m. Motion EULINE BROCK, MAYOR CITY OF DENTON, TEXAS JENNIFER WALTERS CITY SECRETARY CITY OF DENTON, TEXAS Agenda 02-013 04/16/02 #9 AGENDA INFORMATION SHEET AGENDA DATE: April 16, 2001 DEPARTMENT: ACM: Electric Utility Howard Martin, 349-8232 SUBJECT: An Ordinance of the City of Denton, Texas authorizing the City Manager to execute an agreement for Professional Legal Services with the law offices of Jim Boyle, PLLC. for services pertaining to the Travis County Litigation initiated by the City of San Antonio, Texas and by Reliant Energy, Inc. relating to Denton Municipal Electric and numerous other electric transmission providers in the State of Texas; as well as for a related Public Utilities Commission Proceeding respecting College Station, Texas; authorizing the expenditure of funds therefor; providing for retroactive approval of the agreement; and providing an effective date. BACKGROUND: In response to a legislative requirement, in 1996 the Public Utility Commission of Texas (PUC) developed a set of rules designed to create a competitive wholesale power market in Texas. These rules opened access to the Electric Reliability Council of Texas (ERCOT) transmission system and defined a new method of payment for the use of that system. The costs of all transmission facilities built and owned by any ERCOT utility were added together to get a total ERCOT transmission cost. This total cost was then divided by the total peak load in ERCOT to determine a S/MW average cost of the total ERCOT transmission system. 70% of the ERCOT transmission system cost was allocated by multiplying the average $/hdW figure by the peak load of each utility serving load in ERCOT. This method is referred to as the Postage Stamp rate because each entity paid the same fee to serve a MW of peak load regardless of the geographical relationship of their load to their power generation resources (like the US postal system for letters). 30% of the transmission system cost was allocated by attempting to determine the actual transmission line miles used by each utility serving load in ERCOT. This method was referred to as the Vector Absolute Megawatt Mile (VAMM) rate or distance sensitive rate. Under the VAMM rate, the further a utility's load was from the power generation sources it was using to serve its load, the higher its transmission charges were. The VAMM method was an effort to determine how much of the total ERCOT system each utility physically used to serve its load. The PUC transmission charge rules also contained a transition mechanism designed to reduce the impact during the first three years of the new system on those utilities that experienced a major increase in their annual transmission costs. This transition was funded by taking transmission fees from utilities that experienced a significant increase in transmission related income and giving it to utilities that experienced a significant increase in transmission fees. These PUC transmission rules went into effect beginning in January of 1997. Utilities with most of their power generation resources located close to their load felt that the Postage Stamp method was unfair to them because they were utilizing very little of the ERCOT transmission system but paying the same rate as utilities that had power generation sources located many miles from their load. Similarly, utilities that were forced to given up transmission revenues due to them as a result of the transition mechanism felt the transition mechanism was unfair. The northern TMPA cities benefited from the Postage Stamp approach for their Gibbons Creek generation. Denton also benefited from the transition mechanism. TMPA lost a large amount of revenue to the transition mechanism. Cities such as Bryan, Austin, and San Antonio, that had the bulk of their generation resources located close to their load, felt they were harmed by the PUC transmission pricing rules. San Antonio and Reliant challenged the PUC rules in court. The courts ultimately overturned the PUC's rules on the basis that there was no statutory authority for the PUC to do what it had done. This process, including all appeals was completed during the 1999 Texas Legislative session. The Legislature reacted by including in SB7 the appropriate statutory authority and mandating a 100% Postage Stamp rate for ERCOT transmission. The PUC implemented the 100% Postage Stamp rate beginning in September of 1999. However, large amounts of money had been exchanged between many utilities from January 1, 1997 through August 31, 1999 based on a now illegal transmission rate design. Unwinding all the paymeNs that have been made and replacing them with a payment method that meets the statutory authority in place at that time will be a massive and probably much litigated process. Given the many challenges facing ERCOT and the PUC as a result of implementation of retail competition, the participants had chosen not to push the issue and the PUC had not addressed it. Recently, as a result of its dispute over payment for transmission service charges to TMPA and Bryan during the contested period, College Station petitioned the PUC to resolve the issues associated with the court action. That caused Reliant and Austin to file suit in the District Court of Travis County. Reliant asked that all payments made on the Postage Stamp portion of the charge be returned. Austin asked that all payments (both Postage Stamp and VAMM) be returned. DeNon, along with all other utilities that either received or paid out transmission fees during the coNested period were served notice of both the PUC filing and the court suit. There are 47 differeN entities that have paid and/or received transmission fees during the period in question. On January 29th, 2002, the Public Utilities Board was provided a confideNial memorandum notifying the Board that DME had been named in the complains discussed above and explaining the possible legal positions of the parties t) the complaint. The Board was informed that the Law Office of Jim Boyle had been selected to represeN DME in this matter and provided an opportunity to provide DME staff with direction on the matter. Mr. Boyle had agreed to begin representation immediately without benefit of a contract, since the Travis County complaint required immediate response. At that time, it appeared the complaints would trigger a lengthy and potentially costly legal proceeding. It was the intent of the DME staff and Mr. Boyle to finalize a contract as soon as possible. However, the numerous parties to the complaints indicated a desire to explore a settlemeN of the complaints. The poteNial of a quick settlement made it very difficult to estimate the cost of Mr. Boyle's engagemeN, which could either be relatively small if a settlemeN was reached quickly or large if the complaint was litigated. Since that time, although settlemeN discussions are coNinuing, no resolution has been reached and it is difficult to determine if the settlement effort will be successful. Therefore, the attached contract has been developed for the engagement of Mr. Boyle's firm. If a settlement is reached quickly, it is possible that the entire dollar amount will not be required. However, if the complaints are litigated, it is very probable more funds will be required at some point in the future. PRIOR ACTION/REVIEW (Council, Boards, Commission): The Public Utilities Board was informed of the engagement of Mr. Boyle's firm and given an opportunity during its closed session to provide DME staff direction. At its meeting of April 1, 2002, the Public Utilities Board voted to approve the subject contract by a vote of 6 to 0 with 6 members present. FISCAL INFORMATION: Contract cost not to exceed $65,000. EXHIBITS 1. Ordinance 2. Contract 3. Public Utilities Board Minutes of April 1, 2002 Respectfully submitted: Sharon Mays Director of Public Utilities ORDINANCE NO. AN 'ORDINANCE OF 'THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW OFFICES OF JIM BOYLE, PLLC. FOR SERVICES PERTAINING TO THE TRAVIS COUNTY LITIGATION INITIATED BY THE CITY OF SAN ANTONIO, TEXAS AND BY RELIANT ENERGY, INC. RELATING TO DENTON MUNICIPAL ELECTRIC AND NUMEROUS OTHER ELECTRIC TRANSMISSION PROVIDERS IN THE STATE OF TEXAS; AUTHORIZING THE EXPENDITURE OF FLrNDS THEREFOR; PROVIDING FOR RETROACTIVE APPROVAL OF THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, thc City Council deems it necessary and appropriate and in the pubhc interest to engage the Law Offices of Jim Boyle, PLLC ("Boyle"), of Austin, Texas, tO provide professional legal services pertaining to representation of the City as a Defendant in two lawsuits recently brought by the City of San Antonio, Texas (GN#200100; City of San Antonio. Texas, et al vs. Brazos Power Cooperative) and by Reliant Energy, Inc. (GNat200090; Reliant Energy, Inc. vs. Big Country Electric Cooperative. et al) in the District Court of Travis County, Texas regardi.n_g electric transmission accounting and rate matters, involving conflicting Public Utilities Commission of Texas ("PUC") rulings and final rulings of the Texas Supreme Court relating to Denton Municipal Electric ("DME") as well as nearly every other electric utility in the Electric Reliability Council of Texas ("ERCOT"); and WHEREAS, the City has previously retained the professional legal services of Boyle on numerous occasions in the last seven years, and has operated under numerous other Agreements For Professional Legal Services, approved by the Council, and signed by the City Manager, regarding legislative issues and lobbying; Denton Municipal Electric issues at the PUC and in the courts; and other engagements which have demonstrated Boyle's considerable expertise of relevant issues coneer~ing DME; and WHEREAS, the City staffhas reported to the City Council that there is a substantial need for the hereinabove described professional services by Denton Municipal Electric, and that limited City staff cannot adequately perform the specialized legal services and tasks, which are wholly centered in Austin, Texas, with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a city may not select a provider of professional services on the basis of competitive bids, but must select the provider of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and the City Council hereby finds and concludes that Boyle is appropriately qualified under the provisions of the law, to be retained as outside legal conn~el for the City, specifically Denton Municipal Electric, respecting this engagement; and EXHIBIT I WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional legal services, as set forth in the Agreement for Pwfessional Legal Services; NOW, THEREFORE, TI-IE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the recitations in the preamble are true mad correct and are incorporated herewith as a par~ of this Ordinance. SECTION 2: That the City Manager is hereby authorized to execute an Agreement for Professional Legal Services with the Law Offices of Jim Boyle, PLLC, of Austin, Texas for professional legal services pertaining to the two civil suits pending before the District Courts in and for Travis County, Texas as hereinabove described, in substantially the form of the Agreement for Professional Legal Services attached hereto and incorporated herewith by reference. SECTION 3: That the award of this Agreement is on the basis of the demonstrated competence and qualifications of the Law Offices of Sim Boyle, PLLC, and the ability of the Law Offices of Jim Boyle, PLLC, to perform the professional legal services needed by the City for a fair and reasonable price. SECTION 4: That the expenditure of funds as provided for in the attached Agreement for Professional Legal Services is hereby authorized. SECTION 5 That as to the payment of fees and expenses, and authority to represent the City, the Agreement for Professional Legal Services is hereby ratified and retroactively approved, and shall be effective from and after January 5, 2002. SECTION 6: That except as provided in Section 5 hereinabove, this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EULENE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: 2 APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: S:\Our Document~K)rdinances~02~im Boyle PSA-Travis Co Litigation-DME ord.doc 3 STATE OF TEXAS COUNTY OF DENTON AGREEMENT FOR PROFESSIONAL LEGAL SERVICES THIS AGREEMENT, made and entered into this day of , 2002, by and between the Law Office of Jim Boyle, PLLC, with Jim Boyle having full authority to execute this Agreement, 1005 Congress, Suite 550, Austin, Texas 78701, hereinatter referred to as "Consultant"; and the City of Denton, Texas, a Texas Municipal Corporation, 215 East McKinney, Denton, Texas 76201, hereinafter referred to as "City." WITNESSETH WHEREAS, the City needs to employ legal counsel to represent the City of Denton, Texas in complaints filed by the City of San Antonio, Texas (GN~200100, City_ of San Antonio, Texas~ et al. vs. Brazos Power Cooperative) and by Reliant Energy, Inc. (GN~f200090, Reliant Ener~. Iht.vs. Big Country Electric Cooperative, et al) in the District Court of Travis County, Texas regarding electric transmission accounting and rate matters relating to the legal rights of Denton Municipal Electric as well as every other electric utility in the Electric Reliability Council of Texas ("ERCOT") which lawsuits were recently commenced several weeks ago; and WHEREAS, because of the time exigencies arising the delays involved, and the need to frame an immediate an~ver to the suits, and the time necessary to reach a mutually agreeable Agreement, the City has requested Consultant to represent the City in advance of the formal approval of a written contract between Consultant and City, and Consultant has agreed to proceed on this basis during the brief interim period following the filing of the two suits several weeks ago; and WHEREAS, the Consultant is willing to perform such services in a professional manner as an independent contractor; and WHEREAS, the City desires to engage the Consultant to render the services in connection therewith, and the Consultant is willing to provide such services; and NOW, THEREFORE, in consideration of the promises and mutual obligations set forth · herein, the parties hereto do mutually AGREE as follows: I. Scope of Services: The Consultant shall perform the following services in a professional manner working as an independent contractor not under the direct supervision and control of the City: A. Services to be provided: EXHIBIT II Consultant will provide, without limitation, the defense of both lawsuits referred to above; to bring any appropriate counterclaims, third-party actions, cross-claims, claims for seto~ or other actions against the appropriate parties; to file answers to the lawsuits; to file any and all pleadings, memorandums of law, briefs, or other legal documents which are necessary or appropriate regarding the two above referred to lawsuits. Consultant will attend all meetings, depositions, hearings, and other events that he deems necessary to represent the City's legal position in the two above referred to lawsuits. To consult with the City Manager, Assistant City Manager for Utilities, Director of Electric Utilities, Assistant City Attorney for Utilities, and designated administrative personnel regarding any and all aspects of the special services to be performed hereunder, including legal research and advice with respect to such matters, to the extent necessary to represent the City in the two above referred to lawsuits. To provide regular monthly status reports to the Director of Electric Utilities and interim reports by telephone and facsimile on time-sensitive matters. To provide for stares reports on the litigation to the City Council, in person, if requested by the Director of Electric Utilities. The Consultant shall perform all the services required by this Agreement in a timely fashion, and shall complete same in compliance with any schedules established by the City through its Assistant City Manager for Utilities, as appropriate to cany out the terms and conditions of this Agreement. II. Term: The services of Consultant shall commence effective on January 5, 2002 and shall continue until the first to occur of the following events: exhaustion of the funds provided for by this Agreement; or the completion of the litigation the subject of this Agreement; or June 30, 2003. This Agreement may be sooner terminated by either party in accordance with the provisions hereof. Time is of the essence for this Agreemem, and the Consultant shall make all reasonable efforts to complete the services set fi:oth herein as expeditiously as possible and to meet the schedules established by the City, through its Assistant City Manager for Utilities. HI. Compensation and Method of Payment: For and in consideration of the professional services to be performed by Consultant herein, the City agrees to pay, based upon the hourly rate shown in Article III.B. hereinbelow, including reimbursement for out-of-pocket expenses incurred in connection with this A~reement, an amount not to exceed $65,000. The following hourly billing rates shall apply to Consultant's firm, which rates shall be billed in one-tenth (1/10) hour increments: 2 ~Jim Boyle $195.00 Kathleen Sanford $195.00 Rick Guzman $I$0.00 Samie Slaughter $170.00 In addition, the City shall reimburse the Consultant for all out-of-pocket expenses incurred in connection with this Agreement, other than photocopies and faxes, at Consultant's cost. For in-house photocopies, Consultant shall charge $0.15 per page. For faxes, Consultant shall charge $0.25 per page plus any long distance telephone charge. The Consultant shall utilize his best efforts in representing the. City's interests, and may, from time-to-time, as reasonably necessary or appropriate, delegate tasks to be performed within the Scope of Work of this Agreement, by utilizing qualified associates, legal assistants, paralegals or sub-consultants. Assistance provided by Consultant's non-professional staff is included in the monthly fee. Assistance provided by individuals who do not work for the Consultant is not included in the monthly fee and any such fees will be submitted to the City as a reimbursable expense incurred. To the extent any such expense will exceed $500, Consultant will first contact the City's Director of Electric Utilities for approval. Consultant shall bill the City through the submission of a monthly invoice and other documentation, including support data for all expenses incurred and invoiced. Upon completion of services for a month's work performed hereunder, the City shall make payment to the Consultant within thirty- (30) days of the satisfactory completion of services for the given month's work and receipt of an invoice or statement. The parties anticipate invoices or statements for services will be generated on a monthly basin and that said invoices or statements shall be sent to the City on or about the 15~h day of each month. All invoices and bills shall be sent to and approved by City' s Assistant City Attorney for Utilities. It is understood that the Consultant shall work under the coordination and general supervision of the Director of Electric Utilities and the Assistant City Attorney for Utilities. All notices, invoices, and payment shall be made in writing and may be given by personal delivery or by mail. Notices, invoices, and payments sent by mail shall be addressed to: Michael S. Copeland, Assistant City Attorney for Utilities, 215 East McKinney, Denton, Texas 76201; or to the Jim Boyle, Law Offices of Jim Boyle, PLLC, 1005 Congress, Suite 550, Austin, Texas 78701. Notices addressed to the City by Consultant shall also be sent to the City Manager of the City of Denton as well, at 215 East McKinney Street, Denton, Texas 76201. When so addressed, the notice, invoice, and/or payment shali be deemed given upon deposit in the United States Mail, postage prepaid. In all other instances, notices, invoices, and/or payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the responsible person or office to whom notices, invoices, and/or payment~ are to be sent, provided reasonable notice is given. IV. Professional Competency: The Consultant agrees that in the performance of these professional services, Consultant shall be responsible to the level of competency and shall use the same degree of skill and care presently maintained by other practicing professionals performing the same or similar types of work in the State of Texas. For the purpose of this Agreement, the key person who will be performing most of the work hereunder shall be Jim Boyle. However, nothing herein shall limit Consultant fi-om using other qualified and competent members of his firm to perform the services required herein, where no harm or detriment will result to the City's interests. Pleadings, motions, orders, notices, instruments, discovery documents, reports, and other legal documents prepared or obtained under the terms of this Agreement are instruments of service and the City shall retain ownership and a property interest therein. If this Agreement is terminated at any time for any reason prior to payment to the. Consultant for work under this Agreement, all such documents prepared or obtained under the terms of the Agreement shall upon termination be delivered to and become the property of the City upon request and without restriction on their use or further compensation to the Consultant. V. Establishment and Maintenance of Records: Full and accurate records shall be maintained by the Consultant at his place of business with respect to all matters covered by this Agreement. Such records shall be maintained for a period of at least three years after receipt of final payment under this Agreement. VI. Audits and Inspection: At any time during normal business hours and upon reasonable notice to the Consultant, there shall be made available to the City all of the Consultant's records with respect to all matters covered by this Agreement. The Consultant shall permit the City to audit, examine, and make excerpts or transcripts fi-om such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by this Agreement. VII. Accomplishment of Project: The Consultant shall commence, carry on, and complete any and alt projects with all practicable dispatch; in a sound, economical and efficient manner; and, in accordance with the provisions hereof and all applicable laws. In accomplishing the projects, the Consultant shall take such steps as are appropriate to insure that the work involved is properly coordinated with related work being carded on in the City. VIII. Indemnity and Independent Contractor Relationship: The Consultant shall perform all services as an independent contractor not under the direct supervision and control of the City. Nothing herein shall be construed 4 as creating a relationship of employer and employee between the parties. The City and Consultant agree to cooperate in the defense of any claims, actions, suits, or proceeding of any kind brought by a third party which may result fi.om or directly or-indirectly arise from any negligence and/or errors or omissions on the part of the Consultant, or from any breach of the Consultant's obligations under this Agreement. In the event any litigation or claim is brought under this Agreement in which City is joined as a part, Consultant shall provide suitable conn.~el to defend City and Consultant again.~t such claim; provided however, that the Consultant shall have the right to proceed with competent counsel of his own choosing. The Consultant agrees to defend, indemnify and hold harmless the City and all of its officers, attorneys, agents, servants, and employees against any and all such claims to the extent of coverage by Consultant's professional liability policy. The Consultant agrees to pay all expenses, including but not limited to attorney's fees, and satisfy all judgments that may be incurred or rendered against the Consultant's professional liability insurance policy. Nothing herein constitutes a waiver of any rights or remedies the City may have to pursue under either law or equity, including, without limitation, a cause of action for specific performance or for damages, a loss to the City, resulting fi.om Consultant's negligent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved. Consultant shall maintain and shali be caused to be in force at all times during the term of this Agreement, a legally binding policy of professional liability insurance, issued by an insurance carder approved to do business in the State of Texas by the State Insurance Commission, which carrier must be rated by Best Rated Carriers, with a rating of "A-" or higher. Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional act and/or error or omission, in an amount not less than $500,000 combined single limit coverage occurrence. In the event of change or cancellation of the policy by the insurer, the Consultant hereby covenants to immediately advise the City thereof; and in such event, the Consultant shall, prior to the effective date of change or cancellation, serve a substitute policy furnishing the same coverage to the City. The Consultant shall provide a copy of such policy and the declarations page of the existing policy to the City through its Assistant City Manager for Utilities, simultaneously with the execution of this Agreement. IX. Termination of Agreement: In connection with the work outlined in this Agreement, it is agreed and fully understood by the Consultant that the City may cancel or indefinitely suspend further work hereunder or terminate this Agreement at any time upon fifteen (15) days written notice to Consultant. Upon receipt of such notice, Consultant shall cease all work and labor being performed under this Agreement. Consultant may terminate this Agreement by giving the City fitteen (15) days written notice that Consultant is no longer in a position to continue representing the City. Consultant shall invoice the City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement. All reports and other documents, or data, or work related to the project shall become the property of the City upon termination of this Agreement. This Agreement may be terminated in whole or in part, in writing, by either party in the event of substantial failure by the other party to fulfill its obligations under this Agreement through no fault of the terminating party. Provided, however, that no such termination may be effected, unless the other party is given [1] written notice (delivered by certified mail, remm receipt requested) of intent to terminate, and not less than thirty (30) calendar days to cure the failure; and, [2] an oppommity for consultation with the terminating party prior to termination. Nothing contained herein or elsewhere in this Agreement shall require the City to pay for any work performed by Consultant or by any person performing services under this Agreement at the direction of Consultant, which is unsatisfactory, or which is not submitted in compliance with the terms oft/tis Agreement. X. Entire Agreement: This Agreement represents the entire agreement and understanding between the parties and any negotiations, proposals, or oral agreements are intended to be integrated herein and to be superseded by this written agreement. Any supplement or amendment to this Agreement to be effective shall be in writing and signed by the City and Consultant. XI. Compliance with Laws: The Consultant shall comply with all federal, state and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or herea~er be amended, including, but not limited to the Texas Disciplinary Rules of Professional Conduct. XII. Governing Law: For the purpose of determining place of agreement and law governing same, this Agreement is entered into the City and County of Denton, State of Texas, and shall be governed by the laws of the State of Texas. Venue and jurisdiction of any suit or cause of action arising under or in connection with this Agreement shall be exclusively in a court of competent jurisdiction sitting in Denton County, Texas. XIII. Discrimination Prohibited: In performing the services required hereunder, the Consukant shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. XIV. Personnel: Consultant represents that he has or will secure at his own expense all routine personnel required to perform all the services required under this Agreement. Specialized consultants are not considered routine personnel. Routine personnel shall not be employees or have any contractual relations with the City. Consultant shall immediately inform the City of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement, in accordance with Consultant's responsibilities under the Texas Disciplinary Rules of Professional Conduct. All services required hereunder will be performed by the Consultant or under his direct supervision. All personnel engaged in work hereunder shall be qualified and shall be authorized or permitted under federal, state and local laws to perform such services. XV. Assi_~nability: The Consultant shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the City thereto. XVI. Severability Ail agreements and covenants contained herein are severable, and in the event any of them, with the exception of those contained in sections headed "Scope of Services", "Independent Contractor Relationship", and "Compensation and Method of Payment" hereof, shall be held to be invalid by any competent court, this Agreement shall be interpreted as though such invalid agreements or covenants were not contained herein. XVII. Responsibilities for Claims and Liability: Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant for the accuracy and competency of his work; nor shall such approval be deemed to be an assumption of such responsibility of the City for any defect in any report or other documents prepared by the Consultant, his employees, officers, agents and sub-consultants. XVIII. Modification of .A.~eement: No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith. No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid; and, the parties further agree that the provisions of this section will not be waived as herein set forth. XIX. Captions: The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. XX. Bindin_~ Effect: This Agreement shall be binding upon and inure to the benefit of the parties hereto and thek respective heirs, executors, administrators, legal representatives, successors, and assigns where permitted by this Agreement. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed and ratified by its duly authorized and empowered City Manager; and Consultant has executed this Agreement in four (4) original counterparts by its duly authorized officer on this the day of ,2002. 7 "CITY" CITY OF DENTON, TEXAS By: MICHAEL A. CON-DUFF City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY "CONSULTANT" LAW OFFICES OF JIM BOYLE, PLLC ATTEST: S:\Our Documenl.s\Comracts\02klim Boyle-Litigation PSA-Travis Co 2-DME 2002.do~ 8 1 2 3 4 5 6 DRAFT PUBLIC UTILITIES BOARD MEETING MINUTES April 1, 2002 9:00 A.M. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas was present, the Public Utilities Board convened into an Open Meeting on Monday, April 1, 2002 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, 901-A Texas Street, Denton, Texas. PRESENT: Dick Norton, George Hopkins, Charldean Newell, Dick Smith, Don White and Bill Cheek EX OFFICIO MEMBERS Mike Conduff, City Manager Howard Martin, Assistant City Manager EXCUSED: Jim Wilson ITEMS FOR INDIVIDUAL CONSIDERATION: 5) Consider approval of an Agreement for Professional Legal Services with the Law Office of Jim Boyle, PLLC, Austin, Texas for representation of the City of Denton in complaints filed by the City of San Antonio, Texas and by Reliant Energy, Inc. in the District Court of Travis County; and in any related proceeding pending before the Public Utility Commission of Texas resulting from filings made by the City of College Station, Texas. Sharon Mays, Director of Electric Utilities, presented this item. Mays explained that this item is an agreement for Professional Legal Services with Jim Boyle, PLLC associated with transmission litigation. Board Member Dick Smith moved to approve the contract with the Law Office of Jim Boyle, PLLC, with a second from Board Member Cheek. The motion was approved unanimously with a vote of 6-0. Exhibit IH This page left blank intemionally. Agenda 02-013 04/16/02 #10 AGENDA INFORMATION SHEET AGENDA DATE: April 16, 2002 DEPARTMENT: Utility Administration ACM: Howard Martin, 349-8232 SUBJECT An Ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement with Freese and Nichols, inc. for professional engineering services related to resident representation during construction and for materials and density testing regarding the Lake Ray Roberts 54-inch Finished Water Transmission Pipeline and the Loop 288 42-inch and 36-inch Water Transmission Pipelines; authorizing the expenditure of funds therefore; and providing an effective date. BACKGROUND The Final Design Plans and Specifications for the Lake Ray Roberts 54 - Inch Finished Water Transmission Pipeline (LRRFTP) were recently completed and the project was released for bids. Bids were opened for the project on Thursday, March 14th, 2001. The Loop 288 water transmission pipeline is currently under design and should be released for bids in July of 2002. The current construction schedule for these projects is detailed in Exhibit ii. The city has Professional Services Agreements (PSAs) with Freese and Nichols Inc., to cover the design phase services and general representation during construction for both of these large diameter pipeline projects, in the past, the city has used in-house personnel to perform routine inspections for pipeline projects. However, the size of these pipeline projects coupled with their timing made providing adequate inspection services a concern for staff. The current workload and number of inspectors currently available suggested that the city's interests would be better served by outsourcing the inspection of these particular projects. Accordingly, staff requested a proposal from Freese and Nichols, inc., to provide these services on a full time basis during the combined construction schedule for the two projects. The proposal was taken to the Public Utilities Board for approval at the March 18, 2002 meeting. Staff subsequently prepared the PSA for approval by the City Council. The ordinance and PSA are included as Exhibits iii & iV. Staff is prepared to discuss the details concerning each of the specific scope items and the merits of contracting with Freese and Nichols, inc., for these services. The cost breakdown for the negotiated professional services proposal is summarized below: Resident Representation During Construction Materials and Density Testing Total $ 105,000 $ 15,000 $ 120,000 The proposal for the full time resident representative during construction is based upon an hourly charge out rate of $ 55.00 per hour plus direct nonsalary expenses (vehicle and cell phone). The fee estimate is based upon a 55 hour per week schedule over an right-month construction period. By comparison, inspection charges for in-house personnel averages about $ 47.00 per hour. The materials and density testing is based upon actual costs with a multiplier of 1.10. Freese and Nichols proposes to use the same local materials testing firm, Isbell Engineering Group of Sanger, Texas, that is currently being used for the quality control tests for the Lake Ray Roberts Water Treatment Plant construction work. The total fee for these inspection services represents approximately 1.35 % of the estimated 8.872 MS construction cost of the two pipeline projects. OPTIONS Approve the professional services proposal for the construction phase services as submitted. Recommend desired changes to the proposal for consideration by staff and request renegotiations with Freese & Nichols, inc. Attempt to provide these services using in-house resources. RECOMMENDATIONS Staff recommends approval of the professional services proposal as negotiated by staff and submitted by Freese & Nichols, inc. The cost breakdown for the professional services are summarized below: Resident Representation During Construction Materials and Density Testing Total $ 105,000 $ 15,000 $ 120,000 Staff presented this to the Public Utilities Board at the March 18, 2002 meeting and the PUB approved it by a vote of 6-0. PRIOR ACTION REVIEW (COUNIL, BOARDS, COMMISSION) September 17, 2001 - Approval of the amended professional services agreement with Freese and Nichols, Inc., for the Lake Ray Roberts Water Treatment Plant project to include engineering design and general representation during construction services for the 54-inch Finished Water Transmission Pipeline. January 7, 2002 - Approval of the professional services agreement with Freese & Nichols, inc. for the engineering design and general representation during construction for the 36-inch and 42-inch Water Transmission Lines along Loop 288. March 18, 2002 - Consider Approval of the Professional Services Proposal from Freese & Nichols inc., for the Construction Phase of the Lake Ray Roberts 54-inch Finished Water Transmission Pipeline and the Loop 288 42-inch and 36-inch Transmission Pipelines in an amount not to exceed $120,000. April 1, 2002 - Consider approval of Bid No. 2811 to S. J. Lewis Construction of Texas LTD., for the Construction of the Lake Ray Roberts 54 - Inch Finished Water Transmission Pipeline, in an amount not to exceed $ 6,129,855.00. City Council: October 2, 2001 - Approval of the amended professional services agreement with Freese and Nichols, Inc., for the Lake Ray Roberts Water Treatment Plant project to include engineering design and general representation during construction services for the 54- inch Finished Water Transmission Pipeline. January 15, 2002 - Approval of the professional services agreement with Freese & Nichols, inc. for the engineering design and general representation during construction for the 36-inch and 42-inch Water Transmission Lines along Loop 288. April 2, 2002 - Consider approval of Bid No. 2811 to S. J. Lewis Construction of Texas LTD., for the Construction of the Lake Ray Roberts 54 - Inch Finished Water Transmission Pipeline, in an amount not to exceed $ 6,129,855.00. ESTIMATED SCHEDULE OF PROJECT The Lake Ray Roberts Water Treatment Plant should be operational by the spring / early summer o1'2003. The current schedule for the two pipeline projects is detailed in Exhibit ii. FISCAL INFORMATION The estimated construction cost for the two pipeline projects are detailed below: 54-inch Finished Water Transmission Pipeline: 42-inch and 36-inch Loop 288 Pipeline: * Low Bid Total ** Budget Estimate Total $ 6,130,000' $ 2,742,000** $ 8,872,000 The following funds were budgeted for inspection for the two pipeline projects in the Capital Improvements Program: 54-inch Finished Water Transmission Pipeline: 42-inch and 36-inch Loop 288 Pipeline: Total $ 172,000 $ 5O,OOO $ 220,000 Existing bonds sold during FY 2001 and proposed bond fund sales for FY 2002 will be used to fund the PSA with Freese and Nichols, inc. MAP: See Exhibit I Respectfully submitted: Howard Martin Assistant City Manager, Utilities Prepared by: Timothy S. Fisher, P.E. Assistant Director of Water Utilities Exhibit I Exhibit II Exhibit III Exhibit 1V Exhibit V - Project Location Maps - Project Schedules - Ordinance - Professional Services Agreemem - Public Utilities Board meeting minutes for March 18, 2002 30' Tro s~isslon Line 54' Fint~hed LI~ (Under 42_' Tr¢~s~ission Lit 36' Tr'cnsmission Lin~ /r~6' Tram: STLIA.~? R~ ,'~R'{ H LI~CIJST Line Line 36' Tr'(ins~iszion Line-//` lmm 16 Exhibi~ I Loc atio~ Ma~ '" F4,~ishecl Li~ Loc=i4,ow M~lo < z o ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS ALrrHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH FREESE & NICHOLS, INC. FOR PROFESSIONAL ENGINEERING SERVICES RELATED TO RESIDENT REPRESENTATION DURING CONSTRUCTION AND FOR MATERIALS AND DENSITY TESTING REGARDING THE LAKE RAY ROBERTS' 54-INCH FINISHED WATER TRANSMISSION PIPELINE AND THE LOOP 288 42-INCH AND 36 INCH WATER TRANSMISSION PIPELINES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems that it is in the public interest to engage Freese & Nichols, Inc. a Corporation, of Fort Worth, Texas ("F&N"'), to provide professional engineering services pertaining to resident representation during construction and for materials and density testing regarding the Lake Ray Roberts 54-inch finished water transmission pipeline and the Loop 288 42-inch and 36-inch water transmission pipelines; and ' WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above-referenced professional engineering services, and that 'limit~ City staff cannot adequately perform the specialized services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the City Manager is hereby authorized to execute a Professional Services Agreement with Freese & Nichols, Inc., a Corporation, of Fort Worth, Texas, for professional engineering services pertaining to resident representative during construction and for materials and density testing regarding the Lake Ray Roberts 54-inch finished water transmission pipeline and the Loop 288 42-inch and 36-inch water transmission pipelines, in an amount not to exceed $120,000; in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference. SECTION 2: That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of F&N and the demonstrated ability of F&N to perform the services needed by the City for a fair and reasonable price. SECTION3: That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. SECTION 4: That this ordinance shall passage and approval PASSED AND APPROVED this the become effective __ day of immediately upon its ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY S:XOur DocumentsXOrdinnncez\02Wreese & Nichols, Inc..Inspection-Construction Phas~ PSA 2002.doc Iq) R, W ,~ Iq'R I:' P',!:~i iN H CI)/N S'i; F..( CT I() N day the CON SI.. LiI%.N I ~,c~ :st'th l'~<'~.~:~n arc i'~ cm ~'~cl nr~ 'ek!: d"te ':~N~cwi 'U.~ dcscr bcd p:',::,jec (' he '"'P 'e~cc~ '): S(/OPIJ Oi; SI::R VI C S EXHIBIT IV AR1 [C[I! [t1 % DDFF:[ON AL Any addiiio:nal ~;¢F,,':lces n be ]'xn'fbimed by i:}e CONS 7I.TAN] i£a~t or'~z~d hy the O'WN {R PE[UO[} ,/) CONSU'LI~AN]~'~ anJ, ~ipoa ~he reaso mb!y c-stabh, she<~ by the OV, VN~ R: 4cl:h?~ thrr,~LBh ~!:~ Ch;v Mrma.~er ~k,~ ll:iNt es or i~[s (:O Y[ :~[ N S ATfO'N 2 Dhxx:t Non-labor Hx:pepse" is de!:i,wd as i:h~t exiler~::;¢, based upon, acma~ cost nsf oul-O~LF, OCkel expen,%e imes. sonabiy i~scun'ed by thc CONSN...TAh!' r~ Pa{~e 2 o!'[ ! AND x;'~ Jmoum: :e~: !0 e>,caed, $;20.000. ",vi ici' al::~(}t;~ i!:~ciudc.,.~ ,:~ b[:iJge~: e¢ S!05,00{'):[br will be made 'ms:s~:hi ai~:doriz~ll:icm 'rom ~'~c OWNER CO'NS;LLTASJ!' servke~:, Io b~, !alc~: provided ~b;r mxl,~" Ad:~c~e ebi:ai ~ir:8 prio ~.r ~,::~ ;uthodzs:dor~ Pa5~: 3 o¢ I i OWNI::R$] I:l[:~ O[z cx prc'.:s~y re 5erred INSt. 'RANi Ii; ISa 4[ 'y I '~st:::an, ce wkh ik:dl5 of' n©t loss ti'ar~ 5100,(?30 ,tlot cac[ a;scid:en! D. ~[ays I,:xSor WsJ~ua l:,t~{ic:? tO (}%'NIR and CONStJ::'IAX;~' i~: suck evum the 1 t:(IZOd I XA T [07[ O:r:' AG J:~:EEi~4[LN T ~:'rmhsa't o n i:,: rl:i:::iJ~hx~ i:~,:~ 0 ~r ~.!::~., ii~x! sba ~mxk:,: a. lS:n.~d bib. ~:.~ sm~.k:<, s ~<~ ':~:'.e ()~N[~I~ wij: For[ ~, m d~ Tu:,a~::~ ?6 [ 09 ~'rickt'm :~ovi:,,ion with a q,¥1'lCI I:::: XX D, E :: ii ¸ ii: J t~:.1,13 Ii I, ~ ~,. P i';S}( 'i % CI'F'¥' l'iT't('.}l~ N!:;; Y PUB AGENDA ITEM #4 1 2 3 4 PUBLIC UTILITIES BOARD MEETING MINUTES March 18, 2002 9:00 A.M. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 After determining that a quorum of the Public Utilities Board of the City of Denton, Texas was present, the Public Utilities Board convened into an Open Meeting on Monday, March 18, 2002 at 9:00 a.m. in the Service Center Training Room, City of Denton Service Center, and 901-A Texas Street, Denton, Texas. PRESENT: Dick Norton, George Hopkins, Charldean Newell, Dick Smith, Jim Wilson and Don White EX OFFICIO MEMBERS Mike Conduff, City Manager Howard Martin, Assistant City Manager EXCUSED: Bill Cheek ITEMS FOR INDIVIDUAL CONSIDERATION: 3) Consider approval of the Professional Services Proposal from Freese & Nichols Inc., for the construction phase of the Lake Ray Roberts 54-inch Finished Water Transmission Pipeline and the Loop 288 42-inch and 36-inch Transmission Pipeline in an amount not to exceed $120,000. Tim Fisher, Assistant Director of Water Utilities presented this item. He explained that the bids for this project were opened m March 14, 2002. He also pointed out that this contract was negotiated before bid letting. Denton Municipal Utilities' main focus was that engineering/transportation employees usually perform pipeline inspections. In this particular case, the size of the pipeline and the intensity of the construction phase are significant and staff had concerns regarding the availability of in-house personnel with the experience necessary to inspect larger pipelines. Staff therefore requested that Freese & Nichols Inc. (F&N) provide a construction phase service for the project. F&N is also under contract with DMU for the design of the 42" and 36" West Loop Project. The fee for the 54 inch Water Transmission Pipeline is $55.00 an hour plus the use of a car and a cell phone. By comparison, engineering department inspection charges for in-house personnel average about $47.00 per hour. Fisher disclosed that staff been involved in conversations with F&N about possibly expanding that scope, depending on workload, to include the 30" transmission line, which is the Loop 288 East Project. The 54-inch Pipeline came in at a little more than $6.1 million. The low bidder is S.J. Lewis. Hopkins asked how much the original 1 EXHIBIT V PUB AGENDA ITEM #4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 estimate on the project was. Fisher advised him that the engineer's estimate was $9.4 million. Hopkins commented that the engineer's estimate was based on the estimated cost of construction; therefore, if you cut 20-30% off of the total cost, the engineer's fees appear to increase greatly on a percentage basis. Hopkins recommended that the City needed to be more cautious regarding inflated cost estimates. Fisher commented that the City completed a 54" Pipeline for the Upper Trinity with an original cost estimate of $435 per foot. The prices came in at $245 per foot and staff was elated at the 40% cost reduction. Fisher explained that staff budgeted $238 a foot for this project, which came in at $155 per foot. Fisher pointed out the very low competitive price and commended the engineer for his standardization of the plans. Board Member Don White commented that, when the engineers give a high estimate, we actually reward them. Mike Conduit mentioned that we are seeing the end of the inflationary cycle where prices are more competitive. He commented that he had seen a lot of projects where one budgets $238 a foot and receives only two bids at $400 a foot. He asked if the engineering contracts were a percentage of the construction contract or an hourly rate not to exceed a certain amount. Fisher reported hat, regarding the design phase, we typically negotiate a lump sum, assuming that we have a defined scope, which provides some incentive from a profit potential standpoint. Regarding the construction phase portion, which is what staff is discussing on this agenda item, we use an hourly with a cap. Board Member Jim Wilson commented that DMU is using a percentage as a guide, but it does not really impact the fee. Fisher responded that he was correct. Hopkins mentioned that this is the way DMU has typically attempted to justify the fees. They all fall within a percentage reported as some form of industry standards. Hopkins asked if staff could provide some type of guidelines regarding the engineering fees. White asked if the City would expect a limited number of engineers who would bid on a project strictly on a percentage of the cost basis. Fisher explained that Texas State Law would not allow the City to accept or an engineer to submit a proposal based on pricing. First, the consultants have to complete the qualification selection process. Staff then proceeds with the negotiations process. The guidelines given to staff use fee factors and there is a certain amount of interpretation on fee factors and the City uses our most recent experience on what jobs generally fall out. Fisher emphasized that low bid engineering is not where the City wants to be. The City is more interested in the resumes of personnel associated with the project. Staff then works on fee negotiations. Fisher commented that percentages are considered as a gauge for a fair fee. Fisher explained that bidding trends indicate that plant work, tanks and pump stations are going at or above the estimates and pipeline projects have been consistently coming in under the engineer's cost estimates recently. PUB AGENDA ITEM #4 1 2 3 4 5 6 7 8 9 Newell commented that the Board has had a long-standing concern regarding the cost of professional services and expects an annual report on such fees. Fisher responded that DMU is doing a very large capital project program fight now and staff has been bombarding the Board with the consultant components of implementing those plans. Hopkins moved to approve Agenda Item #3, with a second from Smith. The motion was approved unanimously with a vote of 6-0. This page left blank intemionally. Agenda 02-013 04/16/02 #11 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET April 16, 2002 Materials Management Questions concerning this acquisition may be directed to Sharon Mays at 349-8487 Kathy DuBose, Fiscal and Municipal Services~ SUBJECT An Ordinance accepting competitive bids and awarding a contract for the Completion of the Woodrow Substation Site Work, Foundations, Ground Grid, Conduit System and Fence; and providing for the expenditure of funds therefore; and providing an effective date (Bid 2821 - Woodrow Substation Site Work, Foundation, Ground Grid, Conduit System and Fence awarded to the lowest responsible bidder, Can-Fer Construction Company in an amount not to exceed $349,000). BID INFORMATION Construction of the Woodrow Substation is an approved CIP project. Material and equipmem have been purchased. Construction of the station is the next step in the process. The new station will be located approximately 200 feet north of Spencer Road on the west end of the Spencer Utility Site on land owned by the City of Demon. When completed, the Woodrow Substation will replace a portion of the aging distribmion bus that is in the Spencer Generating Plant, supply up to 50 MW of power to eastern and central areas of Denton, and provide backup support for the Industrial, Arco, Pockrus, Teasley, and Locust substations. The combined capacity of the Industrial and Woodrow substations will completely replace the Spencer distribmion bus. This bid is for completing site grading and compaction, foundation construction, installation of the station ground grid, installation of control and distribution feeder conduits, construction of the station fence, and installation of gravel for the finished station surface. Packaging all the site related work with one contractor is an efficient method for completing that part of the project. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board considered this requisition and recommended approval by unanimous vote on April 1, 2002. RECOMMENDATION We recommend this contract be awarded to the lowest responsible bidder at a cost not to exceed $349,000. Agenda Information Sheet April 16, 2002 Page 2 PRINCIPAL PLACE OF BUSINESS Can-Fer Construction Co. Dallas, TX ESTIMATED SCHEDULE OF PROJECT The work is planned to start in May and be completed by August 2002. FISCAL INFORMATION Funded from bond funds. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AIS- Bid 2821 Woodrow Substation W W I-- r~ Z © Z © ICI Z © © W ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE COMPLETION OF THE WOODROW SUBSTATION SITE WORK, FOUNDATIONS, GROUND GRID, CONDUIT SYSTEM AND FENCE; AND PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2821 - WOODROW SUBSTATION SITE WORK, FOUNDATION, GROUND GRID, CONDUIT SYSTEM AND FENCE AWARDED TO THE LOWEST RESPONSIBLE BIDDER, CAN-FER CONSTRUCTION COMPANY IN AN AMOUNT NOT TO EXCEED $349,000). WHEREAS, the City has solicited, received and tabulated competitive bids for the construction of public works or improvements in accordance with the procedures of STATE law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and recommended that the herein described bids are the lowest responsible bids for the construction of the public works or improvements described in the bid invitation, bid proposals and plans and specifications therein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following competitive bids for the construction of public works or improvements, as described in the "Bid invitations", "Bid Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids: BID NUMBER CONTRACTOR AMOUNT Can-Fer Construction, Inc. 2821 $349,000 SECTION 2. That the acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. That the City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. That upon acceptance and approval of the above competitive bids and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2002 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD- BID 2821 WOOODROW SUBSTATION CONTRACTUAL ORDINANCE This page left blank intemionally. Agenda 02-013 04/16/02 #12 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET April 16, 2002 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349-8487 Kathy DuBose, Fiscal and Municipal Services~ SUBJECT An Ordinance accepting competitive bids and awarding a contract for the purchase of a Control House for the Spencer Switch Yard; and providing for the expenditure of funds therefore; and providing an effective date (Bid 2817- Control House for Electric Switch Yard awarded to the lowest responsible bidder, Rohn Industries, Inc. in the amount of $100,050). BID INFORMATION The Spencer Switch Yard is an approved CIP project. Construction of the Spencer Switch Yard must be completed to support connection of the Woodrow Substation and to reconfigure the bus for the Spencer Generating Station to allow independent operation of PGE and DME facilities. The new station will be located immediately west of the existing Spencer Generating Plant step- up station. When completed, the Spencer Switch Yard will allow DME to power the 69kV transmission system directly from either TMPA 138kV to 69kV transformer (Spencer Interchange) or the Spencer Generating Station or both. It is necessary to provide a climate-controlled building to house protective relay, control, communication, and SCADA equipment for the new station. The building will also house ERCOT billing settlement meters. The equipment installed in the building will provide control for four new circuit breakers and the protective equipment for the transmission lines and interface to the Spencer Generating Plant. The building will also house a 125-volt station battery and charging system. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board considered this acquisition and recommended approval by unanimous vote on April 1, 2002. RECOMMENDATION We recommend this bid be awarded to the lowest responsible bidder, Rohn Industries, Inc., in the amount of $100,050. Agenda Information Sheet April 16, 2002 Page 2 PRINCIPAL PLACE OF BUSINESS Rohn Industries, Inc. Bessemer, Alabama ESTIMATED SCHEDULE OF PROJECT Delivery can be completed within 90 days from receipt of an order or the second week in July 2002. FISCAL INFORMATION This acquisition will be funded from Revenue Bonds. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AIS-Bid 2817 Control House Attachment 1 BID#: 2817 Date: 3/19/02 CONTROL HOUSE FOR ELECTRIC SWITCH YARD Principle Place of Business: HOUSTON, TX BESSEMER, AL CONTROL HOUSE FOR ELECTRIC $106,222.00 $81,550.00 1 SWITCH YARD- 14'X40'X 10' 2 Delivery in 90 days 3 4 ADDENDUM # 1 5 DELIVERY 140 DAYS 6 TO 8 WKS 6 EST. FREIGHT Incl. $5,500.00 7 DC ADDER Incl. $13,000.00 8 9 Total Bid Price 10 $1oo,o5o.oo ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF A CONTROL HOUSE FOR THE SPENCER SWITCH YARD; AND PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2817- CONTROL HOUSE FOR ELECTRIC SWITCH YARD AWARDED TO THE LOWEST RESPONSIBLE BIDDER, ROHN iNDUSTRIES, INC. iN THE AMOUNT OF $100,050). WHEREAS, the City 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 and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; 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. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 2817 1 Rohn industries, inc. $100,050 SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, 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, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 2817 Control House This page left blank intemionally. Agenda 02-013 04/16/02 #13 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET April 16, 2002 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349-8487 Kathy DuBose, Fiscal and Municipal Services~ SUBJECT An Ordinance accepting competitive bids and awarding a contract for the purchase of the Spencer Switch Station Material and Equipment Package; providing for the expenditure of funds therefore; and providing an effective date (Bid 2835-Spencer Switch Material Package awarded to the lowest responsible bidder, Utiliserve High Voltage Group in the amount of $236,756.82). BID INFORMATION This bid is for the construction of the Spencer Switch Station, an approved CIP project. Construction of the Spencer Switch must be completed to support connection of the Woodrow Substation and to reconfigure the bus for the Spencer Generating Station to allow independent operation of the PGE and DME facilities. The new station will be located immediately west of the existing Spencer Generating Plant step-up station. When completed, the Spencer Switch will allow DME to power the 69kV transmission system directly from the TMPA 138kV to 69kV transformer (Spencer Interchange) with the Spencer Generating Station completely out of service. The project will provide completely new relay and control for the lines to Woodrow Substation, to Locust Substation, and to Spencer Interchange. All control and relaying for these lines are now located inside the Spencer Plant. This bid is for the purchase of the station steel structure, buswork, insulators, electrical connectors, switches, and miscellaneous hardware necessary for construction of the station. The circuit breakers, control building, 69kV instrument transformers, protective relaying, control, communication, and SCADA (Supervisory Control and Data Acquisition for remote monitoring and control) hardware have already been purchased. The substation material is purchased as a package to insure a proper arrangement and manufacturing design that fully integrates structures, buswork, switchgear, foundation design, connection of buses to owner furnished equipment, and interface to the transmission line. The material package will complete the major purchases necessary for the station. PRIOR ACTION/REVIEW The Public Utility Board will consider this acquisition on April 15, 2002. The recommendation will be relayed to Council on April 16, 2002. Agenda Information Sheet April 16, 2002 Page 2 RECOMMENDATION We recommend this bid be awarded to the lowest responsible bidder, Utiliserve High Voltage Group, in the amount of $236,756.82. The lower price offered by M.D. Henry failed to supply the required switches and insulators and was unable to meet predetermined critical delivery schedules as outlined in the bid documents. PRINCIPAL PLACE OF BUSINESS Utiliserve High Voltage Group Corinth, TX ESTIMATED SCHEDULE OF PROJECT Construction is planned for completion by October 2002. FISCAL INFORMATION The acquisition of this substation switch material and equipment package will be funded from Electric Revenue bond funds. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-AlS-Bid 2835 Spencer Switch Material Package Z W '"r' 0 i-- W O_ ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF THE SPENCER SWITCH STATION MATERIAL AND EQUIPMENT PACKAGE; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 2835-SPENCER SWITCH MATERIAL PACKAGE AWARDED TO THE LOWEST REPONSIBLE BIDDER UTILISERVE HIGH VOLTAGE GROUP IN THE AMOUNT OF $236,756.82). WHEREAS, the City 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 and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; 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. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID NUMBER VENDOR AMOUNT 2835 Utiliserve High Voltage Group $236,756.82 SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, 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, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 2835 Spencer S~vitch Material Package This page left blank intemionally. Agenda 02-013 04/16/02 #14 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET April 16, 2002 Materials Management Questions concerning this acquisition may be directed to Mark Nelson 349-7702 Kathy DuBose, Fiscal and Municipal Services~ SUBJECT An ordinance approving an agreemem between the City of DeNon and McDonald Transit Associates, Inc. to provide passenger motor carder transit management and operation services for the city; providing for the expenditure of funds therefore; and providing for an effective date. BID INFORMATION On September 30, 2002 the currem imer-local agreement contract for public motor carrier transportation services with Services Programs for Aging Needs (SPAN) will expire. A contract is necessary to provide such services and functions as fixed rome and demand response service, dispatching operations, drivers, driver training, marketing and enhancement of the system, minor vehicle maimenance and other related services. Pursuant to regulations set forth by the Federal Transit Administration, it is necessary for the City to advertise for services at least every five years. On January 28, 2002, a request for proposal was advertised with the bid opening on March 4, 2002. The RFP idemified system growth and service enhancemem as major objectives in the proposed service contract. The selection committee has nominated McDonald Transit for consideration as the service provider for public transportation services for the City of DeNon for a two year term with three (3) one year extensions. McDonald Transit is based in Fort Worth and operates 20 public transit systems including the Fort Worth, Lubbock, Waco, Abilene, and Texarkana systems. The City of DeNon Fleet Services Division will cominue to provide primary maimenance for the 16 vehicle fleet and staff is proposing a location near the Fleet Services facility for McDonald to conduct operations (dispatch, training, and rome managemem). PRIOR ACTION/REVIEW The City Attorney's Office has reviewed the contract and approved the attached ordinance. The selection committee reviewed and ranked the proposals and imerview process. RECOMMENDATION We recommend this contract be awarded to McDonald Transit Associates, Inc. Agenda Information Sheet April 16, 2002 Page 2 PRINCIPAL PLACE OF BUSINESS McDonald Transit Associates, Inc. Fort Worth, TX ESTIMATED SCHEDULE OF PROJECT The initial term for the service contract is for two years beginning October 1, 2002 through September 30, 2004. The contract permits three (3) one year extensions for a maximum five year contract. If approved, McDonald Transit will begin transitioning efforts immediately to reduce the potential for service interruption. FISCAL INFORMATION Funding will be from the City's state and federal transit administration grants. The contract calls for a $445,408 management services fee in the first year and a $432,484 management service fee in the second year. The first includes an increased fee to cover overhead associated with the transition process. The second portion of the contract includes approximately $697,000 for variable costs such as fueling, maintenance services, driver wages and benefits, and various other operational costs in year one; and approximately $727,000 in year two. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-RFSP 2794 Transit Management ORDINANCE NO. AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND MCDONALD TRANSIT ASSOCIATES, INC. TO PROVIDE PASSENGER MOTOR CARRIER TRANSIT MANAGEMENT AND OPERATION SERVICES FOR THE CITY; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton has advertised for, received and evaluated proposals for the management and operation of the City' s passenger motor carrier system based on the selection criteria set forth in the request for proposals; and WHEREAS, the City Council finds that McDonald Transit Associates, Inc. ("McDonald") offers the best value to the City based upon the selection criteria listed in the request for proposals; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated into the body of this ordinance as if fully set forth herein. SECTION 2. The agreement for management and operation of the City's passenger motor carrier system is awarded to McDonald. The City Manager, or his designee is hereby authorized to enter in the agreement for such services in substantially the same form as the agreement attached hereto and made a part hereof by reference (the "Agreement"). SECTION 3. The City Manager, or his designee, is authorized to expend funds provided for in the Agreement and to exercise the City's rights and obligations thereunder. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ., 2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AGREEMENT TO PROVIDE MANAGEMENT AND OPERATION SERVICES FOR PASSENGER MOTOR CARRIER TRANSIT SYSTEM THIS AGREEMENT is entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, (hereinafter referred to as "City") and McDonald Transit Associates, Inc., a Texas corporation (herein after referred to as "Company"). WHEREAS, the City and Company desire to enter into this Agreement to provide for the management and operation of the City's passenger motor carder transit system (called the "Link" or "Transit System"); and WHEREAS, McDonald is engaged in the business of providing managemem services for the operation of transit systems and has trained and experienced personnel available for that purpose; and NOW, THEREFORE, the parties hereto mutually agree as follows: i. INDEPENDENT CONTRACTOR The City does hereby engage Company as an independem contractor to advise Cliem and to manage the operation of the Transit System in and about the City of DeNon, Texas including additions to and extensions thereof, as provided herein. The Company agrees to supply such services in an efficiem and economical manner. ii. PURPOSE The purpose of this Agreemem is to secure and provide all managemem and supervisory services, including the employmem of drivers, dispatchers and other personnel reasonably required and necessary for the efficiem operation of the Transit System under City's policies and in a way which will provide the quality and quantity of service as determined from time to time by City. Company will not, however, be expected to achieve results beyond the limits of the funding and other resources made available to it for management of the Transit System. iii. SCOPE OF SERVICES The Company will be responsible for the managemem and day-to-day operation of the Transit System in an efficient and effective manner, and for providing consultation and recommendations to the City, in all areas of public transportation. The Company shall be responsible to City, or its designee. All services to be rendered by the Company shall be subject to the reasonable supervision and control of City. The Company shall make recommendations, or City Page 1 may request information or recommendations, as to any areas of operation which are deemed appropriate and proper and the decision of City shall be binding and final in regards thereto. The advisory, management, and supervisory services to be furnished by the Company will include, but not be limited to: a. Overall management and operation of the Transit System and policy recommendations; b. Management continuity; c. Management and supervision of personnel development and training, and recruitment and employment as necessary; d. Monitoring and evaluation of all operations, systems, and procedures; e. Assist in budgeting, including preparation of an annual budget for the Transit System; f. Safety, loss prevention, and insurance; g. Schedules, transportation, and routing; h. Customer relations and promotion; i. Assist in the preparation and administration of state and federal grants; j. Administration of service contracts; k. Employee relations; 1. Selection and training of all non-maintenance transit employees; and m. Assist in the preparation of agenda items and back-up information for all governing board meetings. n. Transitional services with the current service provider. In addition, Client may, from time to time, request McDonald to perform specific transportation related studies or projections which are beyond the responsibilities set forth above. Page 2 IV. OBLIGATIONS OF COMPANY The Company shall in a satisfactory and proper manner perform services under this Agreement in an efficient manner and undertake and complete the services, and substantially as described in City's Application for Federal funding, which is incorporated herein by reference, filed with and approved by the U. S. Government, and in accordance with the terms and conditions of this Agreement, including: A. Providing transportation within the designated operating limits during the hours of 6:00 a.m. to 9:00 p.m., Monday through Friday and Saturdays from 9:00 a.m. to 6:00 p.m. except on holidays as described in the most current system map and ride guide. Council. Charging a fee to each passenger in such amount as determined by the City C. Providing transportation services within the city limits to the general public on fixed routes, as outlined in the most current system map and ride guide hereof as may be determined and revised from time to time by the City Council. D. Providing transportation services within the city limits to the disabled population on a door-to-door demand response system. E. Company shall maintain an on-time performance standard of no earlier and no later than 5 minutes from the scheduled time of arrival. Current standard is as follows: 95%+ exceptional, 90% - 95% satisfactory, 85% - 90% needs improvement, below 85% unsatisfactory. Company will be required to document and submit on-time performance. Submission will be included with the monthly invoice. F. Company shall establish, operate, and maintain an account system for these services that will allow for a tracing of funds and a review of the financial status of the Transit System and will permit authorized officials for the City to review Company books at any time. G. Company shall comply with all federal statutes and regulations promulgated thereunder applicable to the Company and the operation of the Transit System. H. Company shall comply with all provisions of the current annual contract and future contracts between the City and Texas Department of Transportation. I. Company shall reduce to writing all of its rules, regulations and policies, such as drug testing, training procedures, grievance policies, and compliance with the Americans with Disabilities Act, and file a copy with the City Manager or authorized representative along with any amendments, additions, or revisions whenever adopted. J. Company shall not enter into any contracts that would encumber the City funds for a period that would extend beyond the term of this Agreement. Page 3 K. Company shall promptly pay all bills when submitted unless there is a discrepancy in a bill; any errors or discrepancies in bills shall be promptly reported to the Assistant City Manager of Finance or their authorized representative for further direction. L. Company shall appoint a resident operations manager (the "Operations Manager") who will supervise and manage the day-to-day operations of the Transit System and who will be available to meet with the Public Transportation Manager and other City officials when requested. The initial and subsequent appointment of the Operations Manager will be with the advice and consent of the City. M. Company shall submit to the City copies of year-end audited financial statements in accordance with the provisions hereof. It shall also submit to the City an annual report to include year-end statistics of the number of riders, by ronte and ridership category, final financial data and other quantitative data enumerating milestones and accomplishments. The information in these reports should be as of September 30, each year, and should be submitted to the City no later than November 15, of the corresponding year. N. Company shall anticipate and be actively involved in all Transit System public hearings as required by the American with Disabilities Act and provide ridership input for system and route changes, at such times as required by law. O. On-time performance documentations shall be submitted to the Public Transportation Manager along with the request for re-imbursement. The City will provide the format in which this information is to be submitted. P. Company shall submit to the City copies of each accident report, the Police accident report, Company accident report and indication of drug policy action taken as soon as possible after the accident. A review of accidents will be conducted quarterly with the assistance of the City's Risk Manager. Q. Company shall submit evidence of compliance with various federal and state regulations pursuant to City's request. R. Company shall comply with all items listed in the Scope of Service in the Request for Proposals. S. Company shall: Comply with the Privacy Act of 1974, 5 U.S.C. § 552a and regulations thereunder (the "Privacy Act"), when performance under this Agreement involves the design, development, or operation of any system of records on individuals to be operated by the Company, its third party contractors, sub-grantees, sub-recipients, or their employees to accomplish a Government function; Page 4 Notify the City when the Company or any of its third party contractors, sub-grantees, sub-recipients, or their employees anticipates operating a system of records on behalf of the Government in providing services under this Agreement, if such system contains information about individuals retrievable by the individual's name or other identifier assigned to the individual. A system of records subject to the Privacy Act may not be used in the performance of this Agreement until the necessary and applicable approval and publication requirements have been met. The Company, its third party contractors, sub-grantees, sub- recipients, and their employees agree to correct, maintain, disseminate, and use such records in accordance with the terms of the Privacy Act, and to comply with all applicable terms of the Privacy Act; Include in every solicitation and in every third party contract, sub- grant, and sub-agreement when the performance of work under that proposed third party contract, sub-grant, or sub-agreement may involve the design, development, or operation of a system of records on individuals to be operated under that third party contract, sub-grant, or sub-agreement to accomplish a government function, a Privacy Act notification informing the third party contractor, sub-grantee, or sub- recipient that it will be required to design, develop, or operate a system of records on individuals to accomplish a government function subject to the Privacy Act, and that a violation of the Privacy Act may involve the imposition of criminal penalties; and Include the text of Subsections 125.c (1) through 125.c (4) of Part II of the City's Agreement with the Government, in all third party contracts, sub-grants, and sub-agreements under which work for this Agreement is performed or which is awarded pursuant to this Agreement or which may involve the design, development, or operation of such a system of records on behalf of the Government. T. The Company shall comply with the following regulations: UMTA regulations, "Control of Drug Use in Mass Transportation Operations," 49 C.F.R. Part 653; Department of Transportation regulations, "Drug-Free Workplace Requirements (Grants)," 49 C.F.R. Part 29, Subpart F; and Department of Transportation regulations, "Procedures for Transportation Workplace Drug Testing Programs," 49 C.F.R. Part 40, and "Qualification of Drivers," 49 C.F.R. Part 391, Subpart h. U. Company shall obtain from its third party contractors, sub-grantees, and sub- recipients certifications required by Department of Transportation regulations, "Government-wide Debarment and Suspension (Non-procurement)," 49 C.F.R. Part 29, and otherwise comply with the requirements of those regulations. Page 5 V. Company acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification to the Government in connection with this Project, the Government reserves the right to pursue the procedures and impose on the Company the penalties of 18 U.S.C. § 1001, 31 U.S.C. §§ 231 and 3801 et seq., and/or 49 U.S.C. app. § 1607(h), and may be deemed by the Government to be appropriate. The terms of Department of Transportation regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, are applicable to this Agreement. V. TERM OF AGREEMENT The term of this Agreement shall commence as of the effective date of this Agreement and shall continue through September 30, 2004. This Agreement may be renewed on an annual basis by written agreement of the parties for a maximum of three years. VI. COMPENSATION A. For the satisfactory performance of the management and operation services under this Agreement the City shall pay the Company a fixed sum of $438,208.00 for the first fiscal year of October 1, 2002 through September 30, 2003 and a fixed sum of $425,032.00 for the second fiscal year of October 1, 2003 through September 30, 2004. Should the parties extend this Agreement for three additional years the fixed sums shall be $438,856.00 for October 1, 2004 through September 30, 2005, $456,282.00 for October 1, 2005 though September 30, 2006 and $474,698.00 for October 1, 2006 through September 30, 2007. The fixed sums set forth in this section are for those fixed costs described in the "CITY OF DENTON-TRANSiT BUDGET (FIXED COSTS)- TRANSPORTATION MANAGEMENT SERVICES" attached hereto and made a part hereof by reference as Exhibit "A" (the "Fixed Sums"). Payment of the Fixed Sums shall be made in accordance with Section Vi.C. below. B. In addition to the Fixed Sums the City shall reimburse the Company, as provided in Section Vi.C. below, for its variable direct costs, without mark up, for those variable costs set forth in the "CITY OF DENTON-TRANSiT BUDGET (VARIABLE COSTS)-TRANSPORTATiON MANAGEMENT SERVICES" attached hereto and made a part hereof by reference as Exhibit "B" (the "Direct Variable Sums"). The Direct Variable Sums shall not exceed the amounts set forth in Exhibit "B" unless the City approves such increases in writing in advance or the City increases the scope of the Transportation Services as provided below, it is anticipated that these requested increases will be addressed through an annual budget process where the Company will prepare a proposed budget for City approval, it is recognized that the Direct Variable Sums are based on the Transit System's current scope of schedules and routings and that an increase in the schedules and routings may require an increase in the Direct Variable Sums. in the event of an increase in the schedules and routings requiring additional Page 6 drivers or other personnel the maximum Direct Variable Costs will be increased accordingly based on the direct costs for adding such personnel. C. The Fixed Sums shall be paid in twelve equal monthly paymeNs with the first paymeN being due and payable in November, 2002 within 15 days after the City receives an invoice for such monthly payment. All subsequent monthly payments shall be due and payable for each month thereafter within 15 days of the City's receipt of an invoice for such monthly paymeN. All invoices shall be submitted to the Public Transportation Manager no later than the 10th day of each month. On the same monthly invoice the Company shall include the amount of Direct Variable Costs incurred up to the date of the invoice (the "Monthly Direct Variable Costs"). The City shall pay the Monthly Direct Variable Costs within 15 days of the City's receipt of the invoice, unless paymeN is delayed because Company cannot justify that the Monthly Direct Variable Costs, or any portion thereof, is based on its actual direct cost, without markup. Once such justification is provided, the City shall promptly make the paymeN. D. Company shall make each request for paymeN in accordance with the provisions herein and all requests for paymeN shall be submitted to the Public Transportation Manager. E. It is expressly understood and agreed that (i) the funds payable under this AgreemeN are subject to receipt of monies from the State of Texas and the FTA. Should the funds be curtailed, or should the City be required to curtail its funding, City shall have the right to terminate this AgreemeN immediately withoN penalty. In no even under the terms of this Agreement will the total compensation to be paid exceed the amount of the City's FTA and State grants, as oNlined in the City's contracts with the State and the FTA. F. It is expressly understood that this Agreement in no way obligates the General Fund or any other monies or credits of the City of DeNon. G. The City shall not be obligated or liable under this AgreemeN to any party other than the Company for paymeN of any monies or provision of any goods or services. VII. VEHICLES, VEHICLE MAINTENANCE, AND OFFICE SPACE The City shall provide all vehicles and maiNenance of vehicles that are necessary for the operation of the Transit System. The City shall provide office space for the Company's Operation Manager and necessary support staff and suitable space or areas for the Company's drivers and dispatchers. The office space shall include Nilities and telephones at the City's expense. Initially such office and areas will be located in the trailer adjaceN to the fleet service area at the City's Service CeNer on Texas Street in the City of DeNon, Texas. Page 7 VIII. EVALUATION The Company shall participate in an implementation and maintenance system whereby its services can be continuously monitored. The Company shall make available its financial records for review by the City at the City's discretion. In addition, the Company shall provide the City copies of the following data and reports: A. All external or internal audits. Company shall submit a copy of the annual independent audit to City within ten (10) days of receipt. B. All external or internal evaluation reports. C. Company shall submit quarterly financial statements to City in January, April, July, and September. Each statement shall include expenses and income for the preceding quarter and shall identify the number of participants in each transportation program the Company operates. Company shall submit such statements not later than the fifteenth day of the month following the end of each quarter. IX. DIRECTORS' MEETINGS During the term of this Agreement, the Company shall cause to be delivered to the City copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered to the City in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. Company shall afford City representatives access to all Board of Directors' meetings pertaining to Company's operations under this Agreement. Minutes of all meetings pertaining to Company's operations under this Agreement of the Company's governing body shall be submitted to the City within ten (10) working days of approval. X. SUSPENSION OR TERMINATION The City may suspend or terminate this Agreement and payments to the Company, in whole or part, for cause. Cause shall include but not be limited to the following: A. Company's improper, misuse, or inept use of funds; B. Company's failure to comply with the terms and conditions of this Agreement; C. Company's submission of data or reports that are incorrect or incomplete in any material respect; Page 8 D. Appointment of a trustee, receiver or liquidator for all or a substantial part of the Company's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against the Company; or E. If for any reason the carrying out of this Agreement is rendered impossible or infeasible. In case of suspension, the City shall advise the Company, in writing, as to conditions precedent to the resumption of funding and specify a reasonable data for compliance. In case of termination, the Company shall remit to the City any unexpended City funds. Acceptance of these funds shall not constitute a waiver of any claim the City may otherwise have arising out of this Agreement. XI. EQUAL OPPORTUNITY A. Company shall submit for City approval a written plan for compliance with the Equal Employment and Affirmative Action Federal provisions, within one hundred twenty (120) days of the effective date of this Agreement. B. Company shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. C. Company shall furnish all information and reports requested by the City, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, state and Federal rules and regulations. D. In the event of the Company's non-compliance with the Federal non- discrimination requirements, the Agreement may be cancelled, terminated, or suspended in whole or in part, and the Company may be barred from further contracts with the City. XII. INDEMNIFICATION AND INSURANCE A. COMPANY SHALL INDEMNIFY AND HOLD HARMLESS THE CITY FROM ANY AND ALL CLAIMS AND SUITS ARISING OUT OF THE ACTIVITIES OF THE COMPANY, ITS EMPLOYEES, OR CONTRACTORS AND SAVE AND HOLD THE CITY HARMLESS FROM ALL LIABILITY~ INCLUDING COSTS, EXPENSES AND ATTORNEYS FEES, FOR OR ON ACCOUNT OF, ANY CLAIMS, AUDIT EXCEPTIONS, SUITS, OR DAMAGES OF ANY CHARACTER WHATSOEVER RESULTING IN WHOLE OR IN PART FROM THE PERFORMANCE OR OMISSION OF ANY ACT OF ANY EMPLOYEE, AGENT, REPRESENTIVE OR CONTRACTOR OF THE COMPANY, WHETHER OR NOT SUCH CLAIM, SUIT OR LIABILITY ARISES OUT OF THE NEGLIGENT ACT OR OMISSION OF THE CITY. Page 9 B. Without limiting any of the other obligations or liabilities of the Company, the Company shall provide and maintain throughout the term of this Agreement, the minimum insurance coverage as indicated hereinafter. Upon the effective date of this Agreement, Company shall file with the City's Purchasing Department satisfactory certificates of insurance. Company shall not commence any work under this Agreement until it has fully complied with this Article by providing the required certificates of insurance. C. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: 1. Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A. 2. Any deductibles or self-insured retentions shall be declared in the bid proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 3. Liability policies shall be endorsed to provide the following: a. Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. b. Such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. 4. All policies shall be endorsed to read: "SAID POLICY SHALL NOT BE CANCELLED, NONRENEWED OR MATERIALLY CHANGE WITHOUT 30 DAYS ADVANCED WRITTEN NOTICE BEING GIVEN TO THE OWNER (CITY) EXCEPT WHEN THE POLICY IS BEING CANCELLED FOR NONPAYMENT OF PREMIUM IN WHICH CASE 10 DAYS ADVANCE WRITTEN NOTICE IS REQUIRED". Page 10 5. Should any of the required insurance be provided under a claims-made form, Company shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. 6. Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Company shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. 7. Should any required insurance lapse during the term of this Agreement, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. D. All insurance policies proposed or obtained in satisfaction of this Agreement shall additionally comply with the following specifications, and shall be maintained in compliance with these additional specifications throughout the term of this Agreement or any extension thereofi 1. General Liability insurance with combined single limits of not less than $1,000,000 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: · Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. · Coverage B shall include personal injury. · Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent Page 11 contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. 2. Company shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $1,000,000 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: · any auto, or · all owned, hired and non-owned autos. 3. Company shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). 4. Professional liability insurance with limits not less than $1,000,000 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. 5. Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements, if such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. 6. The Company shall file copies of all insurance policies with the City's Risk Manager and the Texas Department of Transportation and will not cancel any of the policies without the City's written approval. Page 12 7. All policies shall contain an agreement on the part of the insurer waiving the right to subrogation. 8. The insurance certificates furnished shall name the City as an additional insured. XIII. CONFLICT OF INTEREST A. The Company covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. The Company further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. The Company further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself, or others, particularly those with which he has family, business, or other ties. C. No officer, member, or employee of the City and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall (1) participate in any decision relating to the Agreement which affects his personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this Agreement or the proceeds thereof. XIV. NEPOTISM Company shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by Company, or is a member of Company's governing board. The term "members of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-child, half-brother and half-sister. XV. SPECIAL CONDITIONS A. Company agrees to undertake, carry out, and complete the Project consistent with the terms and conditions determined by the Secretary of Labor to be fair and equitable to protect the interests of employees affected by the Project and meet requirements of Section 13(c) of Federal Transit Act, as amended, 49 U.S.C. App. Section 1609(c), and Department of Labor (DEL) guidelines set forth in 29 C.F.R. Part 215. These terms and conditions are identified in the letter of certification from DeL to FTA whose date is set forth in the Notification of Grant Approval to the City. The Company agrees to carry out the Grant in compliance with the conditions stated in that Page 13 DOL letter. That letter and any documents cited in the letter are incorporated herein by reference and made part of this Grant. B. Company agrees to comply with the requirements of Section 8 of the Federal Transit Act, as amended, 49 U.S.C. App. Section 1607, and any implementing regulations that may be issued thereunder. C. Company agrees that it will utilize its administrative process to solicit and consider public comment prior to raising fares or implementing a major reduction of service. D. Company agrees that the Federal Government and the City may, at least annually and more frequently in its discretion, either conduct or require the Company to have independently conducted, reviews and audits as the Government may deem appropriate pursuant to the provisions of Section 9(g) of the Federal Transit Act, as amended, 49 U.S.C. App. Section 1607a(g), and any regulations or guidelines that may be issued by the Government. E. Company agrees and assures that the rates charged elderly and handicapped persons during non-peak hours for transportation utilizing or involving the facilities and equipment financed pursuant to this Agreement will not exceed one-half of the rates generally applicable to other persons at peak hours, whether the operation of such facilities and equipment is by the Company or is by another entity under lease or otherwise. The Company agrees and assures that it will give the rate required herein to any person presenting a Medicare card duly issued to that person pursuant to Title II or Title XVIII of the Social Security Act. F. Company agrees to comply with applicable Buy America statutory and regulatory provisions. The Company may, without prior approval, procure an associated capital maintenance item eligible under Section 9(j) of the Federal Transit Act, 49 U.S.C. App. Section 1607a(j), by contract directly with the original manufacturer or supplier of the item to be replaced, provided that the Company first certifies in writing to the Government that: (1) such manufacturer or supplier is the only source of such item; and (2) the price of such item is no higher than the price paid for such item by like customers. G. Company shall implement a project management plan, as approved by the Federal Government, in accordance with the requirements of Section 23 of the Federal Transit Act, as amended, 49 U.S.C. App. Section 1619, and any implementing regulations that may be there-under. XVI. ADDITIONAL COVENANTS OF COMPANY A. Definitions. As used in this section: 1. Agreement means any Grant Agreement or Cooperative Agreement. Page 14 2. Application means the signed and dated proposal as may be amended for Federal financial assistance for the Project, together with all explanatory, supporting, and supplememary documems heretofore filed with and accepted and approved by the Governmem (UMTA) by or on behalf of the Company. 3. Approval, Authorization, Concurrence, Waiver means a conscious written act by an authorized official of the UMTA and City granting permission to the Company to perform or omit an action pursuant to this Agreement, which action may not be performed or omitted withom such permission. An approval, authorization, concurrence, or waiver permitting the performance or omission of a specific action shall not constitute permission to perform or omit other similar actions unless such permission is clearly stated. Oral permission or interpretations have no legal force or effect. 4. UMTA Directive includes the most recent circulars, notices, and orders that present information about UMTA programs, application processing procedures, and guidance for administering approved Projects; there are also Departmem of Transportation directives that may be applicable to the Project. 5. Government means the United States of America, or its cognizant Company, the Departmem of Transportation (DOT), or its operating administration, the Urban Mass Transportation Administration (UMTA), used herein imerchangeably. 6. Mass Transportation includes public transportation and means transportation by bus, rail or other conveyance, either publicly or privately owned, that provides general or special transportation service (bm not including school bus, charter or sightseeing service) to the public on a regular and cominuing basis. 7. Project means the task or set of tasks provided for in the Project Budget which the Company undertakes to perform pursuant to this Agreement. 8. Project or Program Budget means the most recently dated statement, approved by the Government, of the estimated total cost of the Project or Program, the items to be deducted from such total in order to calculate the estimated net Project cost, the maximum amount of Federal assistance for which the Company, through the City, is curremly eligible, the specific items (including comingencies and relocation) for which the total may be spent, and the estimated cost of each of such items. 9. Secretary_ means Secretary of the Department of Transportation or his or her duly authorized designee. 10. UMTA means the Urban Mass Transportation Administration of the U.S. Department of Transportation. 11. City means City of Demon, Texas. Page 15 B. In the performance of its obligations pursuant to this Agreement, the Company agrees to comply with all applicable provisions of Federal, State, and local laws, regulations, and UMTA directives. The Company understands and agrees that Federal laws, regulations, policies, and related administrative practices in force and made applicable to this Agreement on the date of execution may be modified from time to time, and that the most recent of such provisions will govern administration of this Agreement at any particular time, except if there is sufficient evidence in the Agreement of a contrary intent. Such contrary intent might be evidenced by express language in any amendments to the Agreement. Likewise, new Federal laws, regulations, policies and administrative practices may be established after the date of execution and thereafter be applied to this Agreement. As may be necessary to achieve compliance with these requirements, the Company shall include notice of such requirements in all third party contracts, sub-grants, and other sub-assistance agreements financed with Government (UMTA) assistance. All limits or standards set forth in this Agreement to be observed in the performance of the Project are minimum requirements. If there is a conflict between Federal and State or local requirements, the Company shall inform the City and the Government (UMTA) in order that an appropriate resolution may be arranged. C. Company shall submit to the City such data, reports, records, contracts, and other documents relating to the Project as the City may, during the course of the Project and for three years thereafter, require. The Company shall retain intact, for three years following Project close-out, all Project documents, financial records, and supporting documents and make these records available to the City as the City may require. D. Company shall immediately notify the City of any change in law, conditions, or any other event that may significantly affect its ability to perform the Project in accordance with the terms of this Agreement. In addition, the Company shall immediately notify the City of any decision pertaining to the Company's conduct of litigation that may affect the City's interests in the Project or the City's administration or enforcement of applicable Federal laws or regulations. Before the Company may join the City as a named party to litigation, for any reason, the Company agrees to first inform the City; this proviso applies to any type of litigation whatsoever, in any forum. E. Absent the express, written consent of the Government or the City and notwithstanding any concurrence by the Government in or approval of the award of any contract or subcontract or the solicitation thereof, neither the Government nor the City shall be subject to any obligations or liabilities by contractors of the City or their subcontractors or any other person not a party to this Agreement in connection with the performance of this Project. F. Company shall prepare and maintain a Project Budget. A copy of the said budget shall be submitted to the City by March 1 of each year. The Company shall carry out the Project and shall incur obligations against and make disbursements of Project funds only in conformity with the latest approved budget for the Project. The Project Budget may be revised, from time to time, to the extent permitted by and in conformance with the requirements of the Government. Page 16 G. Company shall establish and maintain either a separate set of accounts or accounts, within the framework of an established and approved accounting system, for the Project in a manner consistent with 49 C.F.R. § 18.20, or OMB Circular A-110, as amended, as may be applicable. H. Consistent with the provisions of 49 C.F.R. § 18.21, or OMB Circular A-110, as amended, as may be applicable, the Company shall record in the Project Account, and deposit in a bank or trust company all Project payments it receives from the City pursuant to this Agreement and all other funds provided for, accruing to, or otherwise received on account of the Project, (Project Funds). A separate bank account may be required when drawdowns are made by letter of credit. The Company is encouraged to use banks that are owned at least 50 percent by minority group members. I. Expenditures made by the Company shall be reimbursable as allowable costs to the extent that they meet all the requirements set forth below. They must: 1. Conform with the Project Description and the Project Budget and all other terms of the Agreement; 2. Be necessary in order to accomplish the Project; 3. Be reasonable in amount for the goods or services purchased; 4. Be actual net costs to the Company (i.e., the price paid minus any refunds, rebates, or other items of value received by the Company that have the effect of reducing the cost actually incurred, excluding Program Income); 5. Be incurred (and be for work performed) after the date of this Agreement, unless specific authorization from the Government (UMTA) or the City to the contrary is received; 6. Unless permitted otherwise by Federal statute or regulation, conform with Federal guidelines or regulations and Federal cost principles as set forth in the standards of OMB Circular A-122, Revised, "Cost Principles for Nonprofit Organizations," and the standards of 48 C.F.R. Part 31 are applicable; 7. Be satisfactorily documented; and 8. Be treated uniformly and consistently under accounting principles and procedures approved and prescribed by the Government or City for the Company; and those approved or prescribed by the Company for its contractors. J. All costs charged to the Project, including any approved services contributed by the Company or others, shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers evidencing in detail the nature and propriety of Page 17 the charges. The Company shall also maintain accurate records of all Project Funds derived from the implementation of the Project. K. Any check or order drawn by the Company with respect to any item that is or will be chargeable against the Project Account will be drawn only in accordance with a properly signed voucher then on file in the office of the Company stating in proper detail the purpose for which such check or order is drawn. All checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and, to the extent feasible, kept separate and apart from all other such documents. L. The Company shall permit the Secretary and the Comptroller General of the United States, or any of their duly authorized representatives to inspect all work, materials, payrolls, and other data and records with regard to the Project, and to audit the books, records, and accounts of the Company and its contractors with regard to the Project. In the case of contracts awarded under other than competitive bidding procedures as defined by the Secretary of Transportation, the Company shall require those contractors to permit the Secretary of Transportation and the Comptroller General of the United States, or any of their duly authorized representatives to inspect all work, materials, payrolls, and other data and records with regard to the Project, and to audit the books, re-cords, and accounts pertaining to such contracts with regard to the Project. If the City is found to be responsible for meeting the audit requirements of 49 C.F.R. § 18.26 and OMB Circular A-128 or any revision or supplement thereto, the Company shall comply with these requests. The Company is responsible for obtaining any audits required by the Government (UMTA). Closeout of the Project will not alter the Company's audit responsibilities. 1. The Company shall report its cash disbursements and balances in a timely manner as required by the City or Government. 2. The Company shall provide for effective control and accountability for all Project funds consistent with Federal requirements and procedures for use of the letter of credit. 3. The Company shall impose on its sub-recipients all applicable requirements of Subsections 105.b. (1) (a), (b), and (c) of Part II of this Agreement. M. Neither the Company nor any sub-recipient may use Federal assistance funds for publicity or propaganda purposes designed to support or defeat legislation pending before Congress. N. Company agrees that: 1. Any interest earned by the Company on Federal funds must be remitted to the Government, except as provided by the Intergovernmental Cooperation Act, 31 U.S.C. § 6503(a), or the Indian Self-Determination Act, 23 U.S.C. § 450. Page 18 2. Upon notice by the Government (UMTA) to the City of specific amounts due the Government, the Company shall promptly remit any excess payment of amounts or disallowed costs to the Government (UMTA), including any interest due thereon. O. The Company recognizes that the Government (UMTA) reserves the right to de-obligate unspent Federal funds prior to Project close-out, if such occurs, City may terminate this Agreement without penalty. P. Company agrees that, upon written notice, the City may suspend or terminate all or part of the financial assistance provided herein if the Company is, or has been, in violation of the terms of this Agreement, or if the Government or the City determines that the purposes of the statute under which the Project is authorized would not be adequately served by continuation of Federal financial assistance for the Project. Any failure to make reasonable progress or other violation of the Agreement that significantly endangers substantial performance of the Project shall be deemed to be a breach of this Agreement. If the Company's failure either to make adequate progress or to make reasonable use of the Project real property, facilities, or equipment, or to honor the terms of this Agreement is determined by the City to be willful or unreasonable, the City reserves the right to require the Company to refund to the City the entire amount of Project funds provided by the City or any lesser amount as may be determined by the City. Q. Within 30 days of the termination of this Agreement, the Company shall submit a final Financial Status Report (Standard Form 269), a certification or summary of Project expenses, and third party audit reports, as applicable. Company agrees that either the Government (UMTA) or a Company designated by the Government (UMTA) will perform a final audit of the Project to determine the allowability of costs incurred to determine settlement of the Federal assistance for the Project in accordance with Part I of this Agreement. If City has made payments to the Company in excess of the total amount of the Federal assistance due, the Company shall promptly remit to the City that excess and interest as may be required by Subsections 105.b. and 105.e. of Part II of the City's Agreement with the Government. Project closeout occurs when the City notifies the Company and forwards the final Federal assistance payment or when the Company's remittance of the proper refund has been acknowledged by the City. Project closeout shall not invalidate any continuing obligations imposed on the Company by this Agreement or by the City's final notification or acknowledgrnent. R. The following conditions are applicable to real property, equipment, and supplies financed under this Agreement: 1. The Company agrees to observe the property management standards set forth in 49 C.F.R. §§ 18.31, 18.32, and 18.33, or OMB Circular A-110, Attachment N, as appropriate, as now or hereafter amended, and any guidelines or regulations that the Government may issue. Exceptions to the requirements of 49 C.F.R. §§ 18.31, 18.32, Page 19 and 18.33, and to OMB Circular A-110, Attachment N must be specifically approved by the City. The City reserves the right to require the Company to transfer title to any equipment financed with Federal assistance made available by this Agreement as set forth in 49 C.F.R. § 18.32(g) or OMB Circular A-110, Attachment N, as may be appropriate. The City also reserves the right to direct the disposition of real property or equipment financed with Federal assistance funds made available under this Agreement, as set forth in 49 C.F.R. §§ 18.31 and 18.32 or OMB Circular A-110, Attachment N, as may be applicable. 2. The Company agrees to maintain the Project real property, equipment, and supplies in good operating order, and in accordance with any guidelines, directives, or regulations that UMTA may issue. If, during the period, any Project real estate, equipment, or supplies are not used in mass transportation service, whether by planned withdrawal, misuse or casualty loss, the Company shall immediately notify the City. Unless otherwise approved, the Company shall remit to the City a proportional amount of the fair market value, if any, of the real property, equipment, or supplies whose aggregate value exceeds $5,000, which value shall be determined on the basis of the ratio of the Federal assistance awarded by the Government to the actual cost of the Project. The following guidelines shall be followed in determining the fair market value. Unless otherwise approved in writing by UMTA, the fair market value of equipment and supplies will be the value of that property at the time immediately before the reason occurred that prompted the decision to withdraw that property from transit use. For example, in the event of loss of or damage to the property by casualty or fire, the fair market value of the property will be calculated immediately before the loss or damage, irrespective of the extent of insurance coverage. In the case of equipment and supplies, fair market value shall be based on straight line depreciation of the equipment and supplies, based on the industry standard for useful life, irrespective of the reason for withdrawal of that property from transit use. In the case of real property, the fair market value shall be determined by competent appraisal based on an appropriate date as determined by the Government consistent with the standards of 49 C.F.R. Part 24. The City, however, reserves the right to require another method of valuation to be used if the Government (UMTA) finds that special circumstances so require to assure the protection of the Federal investment. In unusual circumstances, the Company may request that another reasonable method of determining fair market value be used, including but not limited to accelerated depreciation, comparable sales, or established market values. In determining whether to approve an alternate method, the City may consider any action taken, omission made or unfortunate occurrence suffered by the Company with respect to the preservation or conservation of the value of the real property, equipment, or supplies that, for any reason, have been withdrawn from service. 3. The Company further agrees that the Project real property, equipment, and supplies shall be used for the provision of mass transportation service within the area and in the manner set forth in the Project Description. Should the Company unreason-ably delay in or refrain from using Project real estate or equipment, in the manner set forth in the Project Description, the City reserves the right to require the Company to return the entire amount of the Federal assistance expended on that real Page 20 estate or equipment. The Company shall keep satisfactory records with regard to the use of the real property, equipment, and supplies, and submit to the City upon request such information as may be required to assure compliance with this Section and shall immediately notify the City in all cases in which Project real property, equipment, or supplies are used in a manner substantially different from what is set forth in the Project Description. The City reserves the right to require the Company to restore Project real property, equipment, or supplies or pay for damage to Project real property, equipment, or supplies as a result of abuse or misuse of such property with the Company's knowledge and consent. S. Company may not execute any transfer of title, lease, lien, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obligation that in any way affects the Federal interest in any Project real property or equipment, nor may the Company obligate itself, in any other manner, to any third party with respect to Project real property or equipment, unless such transfer of title, lease, lien, pledge, mortgage, encumbrance, contract, grant anticipation note, alienation, or other obligation is expressly authorized in writing by the City and Government (UMTA); nor may the Company, by any act or omission, adversely affect the Federal interest or impair the Company's continuing control over the use of Project real property or equipment. T. Civil Rights 1. Equal Employment Opportunity - The following requirements are applicable to the Project: (a) In connection with Project implementation, the Company may not discriminate against any employee or applicant for employment because of race, color, age, creed, sex, or national origin. The Company shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, with-ont regard to their race, color, religion, sex, age, or national origin. Such action shall include, bnt not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Company shall insert the foregoing provision (modified only to show the particular contractual relationship) in all of its contracts in connection with the development or operation of the Project, except contracts for standard commercial supplies or raw materials and construction contracts, and shall require all such contractors to insert a similar provision in all subcontracts, except subcontracts for standard commercial supplies or raw materials. (b) If, as a condition of assistance, the Company has submitted, and the City has approved, an equal employment opportunity program that the Company agrees to carry out, such program is incorporated into this Agreement by reference. Such program shall be treated as a contractual obligation; and failure to carry out the terms of that equal employment opportunity program shall be treated as a violation of this Agreement. Upon notification to the Company of its failure to carry out the approved Page 21 program, the Government or the City will impose such remedies as it may deem appropriate, which remedies may include termination of financial assistance as set forth in Section 106 of Part ii of the City's Agreement with the Government or other measures that may affect the ability of the Company to obtain future financial assistance under the Urban Mass Transportation Act of 1964, as amended, or title 23, United States Code (Highways). 2. Small, Minority and Women's Business Enterprise. The following provisions are applicable to the Project: (a) The Company shall be responsible for meeting the requirements regarding participation by minority business enterprises (DBE) in Department of Transportation programs set forth at 49 C.F.R. Part 23. Pursuant to the requirements of 49 C.F.R. § 23.43, the following clauses must be inserted in each third party contract: (i) POLICY. IT IS THE POLICY OF THE DEPARTMENT OF TRANSPORTATION THAT MiNORiTY BUSINESS ENTERPRISES, AS DEFINED iN 49 C.F.R. PART 23, SHALL HAVE THE MAXIMUM OPPORTUNITY TO PARTICIPATE iN THE PERFORMANCE OF CONTRACTS FINANCED iN WHOLE OR iN PART WITH FEDERAL FUNDS UNDER THIS AGREEMENT. CONSEQUENTLY, THE DBE REQUiRE-MENTS OF 49 C.F.R. PART 23 APPLY TO THIS AGREEMENT. (ii) DBE OBLIGATION. THE COMPANY AND ITS CONTRACTORS AGREE TO ENSURE THAT MINORITY BUSINESS ENTERPRISES AS DEFINED IN 49 C.F.R. PART 23 HAVE THE MAXIMUM OPPORTUNITY TO PARTICIPATE IN THE PERFORMANCE OF CONTRACTS AND SUBCONTRACTS FINANCED IN WHOLE OR iN PART WITH FEDERAL FUNDS PROVIDED UNDER THIS AGREEMENT. IN THIS REGARD ALL AGENCIES AND CONTRACTORS SHALL TAKE ALL NECESSARY AND REASON-ABLE STEPS IN ACCORDANCE WITH 49 C.F.R. PART 23 TO ENSURE THAT MINORITY BUSINESS ENTERPRISES HAVE THE MAXIMUM OPPORTUNITY TO COM-PETE FOR AND PERFORM CONTRACTS. COMPANY AND ITS CONTRACTORS SHALL NOT DiSCRiMiNATE ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN OR SEX iN THE AWARD AND PERFORMANCE OF CONTRACTS ASSISTED BY THE DEPARTMENT OF TRANSPORTATION. (b) The Company shall advise each sub-recipient, contractor, and subcontractor that failure to carry out the requirements set forth in 49 C.F.R. § 23.43(a) shall constitute a breach of contract and, after the notification of the Department of Transportation, may result in termination of the Agreement or contract by the Company or such remedy as the Company deems appropriate. Page 22 (c) The Company shall take action concerning lessees as follows: (i) The Company shall not exclude DBEs from participation in business opportunities by entering into long-term, exclusive agreements with non-DBEs for the operation of major transportation related activities for the provision of goods and services to the facility or to the public on the facility. (ii) If the Company is required to submit affirmative action programs under 49 C.F.R. § 23.41(a)(2) or 49 C.F.R. § 23.41(a)(3) and has business opportunities for lessees, it shall submit for approval to the Department of Transportation with its programs overall goals for the participation as lessees of firms owned and controlled by DBEs. These goals shall be for a specified period of time and shall be based on the factors listed in 49 C.F.R. § 23.45 (g)(5). The Company shall review these goals at least annually, and whenever they expire, analyzing projected versus actual DBE participation during the period covered by the review and any changes in factual circumstances affecting the selection of goals. Following each review, the Company shall submit new overall goals to the Department of Transportation for approval. If Company fails to meet its goals for DBE lessees, it shall demonstrate to the City and the Government in writing that it made reasonable efforts to meet the goals. (iii) Except as provided in this section, the Company is required to include lessees in affirmative action programs. Lessees themselves are not subject to the requirements of this Part, except for the requirement under 49 C.F.R. § 23.7 that lessees avoid discrimination against DBEs. 3. Title VI Civil Rights Act of 1964. The Company shall comply and shall assure the compliance by contractors and subcontractors under this Project with all requirements of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Department of Transportation regulations, "Nondiscrimination in Federally-Assisted Programs of the Department of Transportation -- Effectuation of Title VI of the Civil Rights Act," 49 C.F.R. Part 21; and the Assurance by the Company pursuant thereto. 4. Nondiscrimination on the Basis of Handicap. The Company shall ensure that all fixed facility construction or alteration and all new equipment included in the Project shall comply with Department of Transportation regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities, Receiving or Benefiting from Federal Financial Assistance," 49 C.F.R. Part 27, and UMTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609, and any amendments thereto that may be issued. 5. Competition in Procurement. The Company agrees to comply with the Procurement Standards requirements set forth at 49 C.F.R. § 18.36 or OMB Circular A- l 10, Attachment O, as may be applicable; and with any supplementary directives or regulations including UMTA Circular 4220.1B; and any revisions thereof, as may be applicable. UMTA reserves the right to review the Company's technical specifications Page 23 and requirements, where such review is necessary for proper Project administration. The Company further agrees that, notwithstanding the requirements of Section 121 of Part II of the City's Agreement with the Government, no Federal funds shall be used to support procurements utilizing exclusionary or discriminatory specifications. 6. Force Account. The City and Government (UMTA) reserves the fight to determine the extent of its participation in force account costs. 7. Settlement of Third Party Contract Disputes or Breaches. The U.S. Government has a vested interest in the settlement of any dispute, default, or breach involving any federally-assisted third party contract. Company agrees that the Government retains the right to a proportionate share, based on the percentage of the Federal share committed to the Project, of any proceeds derived from any third party recovery. Therefore the Company shall avail itself of all legal rights available under any third party con-tract. The Company shall notify the City and Government of any current or prospective litigation or major disputed claim pertaining to any third party contract. The City and Government reserves the right to concur in any compromise or settlement of any claim by the Company involving any third party contract. If the third party contract contains a liquidated damages provision, any liquidated damages recovered shall be credited to the Project account involved unless the Government permits otherwise. In the event the Company wishes to join the Government as a named party to litigation, for any reason, the Company agrees to inform the City Government before doing so; this proviso applies to any type of litigation whatsoever, in any forum. 8. Ethics. The Company shall maintain a written code or standards of conduct that shall govern the performance of its officers, employees, board members, or agents engaged in the award and administration of contracts supported by Federal funds. Such code or standards shall provide that no employee, officer, board member, or agent of the Company may participate in the selection, award, or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when any of the parties set forth below has a financial or other interest in the firm selected for award: (i) The employee, officer, board member, or agent; (ii) Any member of his or her immediate family; (iii) His or her partner; or above. (iv) An organization that employs, or is about to employ, any of the The code or standards shall also provide that the Company's officers, employees, board members, or agents may neither solicit nor accept gratuities, favors or anything of monetary value from present or potential contractors or sub-recipients. The Company may set minimum rules where the financial interest is not substantial or the gift is an Page 24 unsolicited item of nominal intrinsic value. As permitted by State or local law or regulations, such code or standards shall provide for penalties, sanctions, or other disciplinary actions for violations by the Company's officers, employees, board members, or agents, or by contractors or sub-recipients or their agents. 9. Interest of Members of or Delegates to Congress. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Project or to any benefit therefrom. U. CONSTRUCTION CONTRACTS The following provisions are applicable to federally assisted construction contracts: 1. Nondiscrimination. Pursuant to the regulations of the Secretary of Labor at 41 C.F.R. §§ 60-1.4(b)(1) and 60-1.4(c): (a) The Company hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof, as defined in the regulations of the Secretary of Labor at 41 C.F.R. Chapter 60, that is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, cooperative agreement, contract, loan, insurance, or guarantee, or under-taken pursuant to a Federal program involving the grant, cooperative agreement, contract, loan, insurance, or guarantee, the following equal opportunity clause: DURING THE PERFORMANCE OF THIS CONTRACT, THE CONTRACTOR AGREES AS FOLLOWS: (i) THE CONTRACTOR WILL NOT DISCRIMINATE AGAINST ANY EMPLOY-EE OR APPLICANT FOR EMPLOYMENT BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. THE CONTRACTOR WILL TAKE AFFIRMATIVE ACTION TO ENSURE THAT APPLICANTS ARE EMPLOYED, AND THAT EMPLOYEES ARE TREATED DURING EMPLOYMENT WITHOUT REGARD TO THEIR RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. SUCH ACTION SHALL INCLUDE, BUT NOT BE LIMITED TO THE FOLLOWING: EMPLOYMENT, UPGRADING, DEMOTION, OR TRANSFER; RECRUITMENT OR RECRUITMENT ADVERTISING; LAYOFF OR TERMINATION; RATES OF PAY OR OTHER FORMS OF COMPENSATION; AND SELECTION FOR TRAINING, INCLUDING APPRENTICESHIP. THE CONTRACTOR AGREES TO POST IN CONSPICUOUS PLACES, AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOYMENT, NOTICES TO BE PROVIDED SETTING FORTH THE PROVISIONS OF THIS NONDISCRIMINATION CLAUSE. Page 25 (ii) THE CONTRACTOR WILL, iN ALL SOLICITATIONS OR ADVERTISEMENTS FOR EMPLOYEES PLACED BY OR ON BEHALF OF THE CONTRACTOR, STATE THAT ALL QUALIFIED APPLICANTS WILL RECEIVE CONSIDERATION FOR EMPLOYMENT WITHOUT REGARD TO RACE, COLOR, RELIGION, SEX, OR NATIONAL ORiGiN. (iii) THE CONTRACTOR WILL SEND TO EACH LABOR UNION OR REPRESENTATIVE OF WORKERS WITH WHICH IT HAS A COLLECTIVE BARGAiNiNG AGREEMENT OR OTHER CONTRACT OR UNDERSTANDING, A NOTICE TO BE PROVIDED ADVISING THE LABOR UNION OR WORKERS' REPRESENTATIVE OF THE CONTRACTOR'S COMMITMENTS UNDER SECTION 202 OF EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, AND SHALL POST COPIES OF THE NOTICE iN CONSPICUOUS PLACES AVAILABLE TO EMPLOYEES AND APPLICANTS FOR EMPLOYMENT. (iv) THE CONTRACTOR WILL COMPLY WITH ALL PROVISIONS OF EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, AND OF THE RULES, REGULATIONS, AND RELEVANT ORDERS OF THE SECRETARY OF LABOR. (v) THE CONTRACTOR WILL FURNISH ALL INFORMATION AND REPORTS REQUIRED BY EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, AND BY THE RULES, REGULATIONS, AND ORDERS OF THE SECRETARY OF LABOR, OR PURSUANT THERETO, AND WILL PERMIT ACCESS TO ITS BOOKS, RECORDS AND ACCOUNTS BY THE SECRETARY OF LABOR AND UMTA FOR PURPOSES OF iNVESTiGATiON TO ASCERTAIN COMPLIANCE WITH SUCH RULES, REGULATIONS, AND ORDERS. (vi) IN THE EVENT OF THE CONTRACTOR'S NONCOMPLIANCE WITH THE NONDiSCRiMiNATiON CLAUSES OF THIS AGREEMENT OR WITH ANY OF SUCH RULES, REGULATIONS, OR ORDERS, THIS AGREEMENT MAY BE CANCELLED, TERMINATED, OR SUSPENDED IN WHOLE OR iN PART AND THE CONTRACTOR MAY BE DECLARED iNELiGiBLE FOR FURTHER FEDERAL OR FEDERALLY ASSISTED CONTRACTS iN ACCORDANCE WITH PROCEDURES AUTHORIZED iN EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, AND SUCH OTHER SANCTIONS MAY BE IMPOSED AND REMEDIES iNVOKED AS PROVIDED iN EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, OR BY RULE, REGULATION, OR ORDER OF THE SECRETARY OF LABOR, OR AS OTHERWISE PROVIDED BY LAW. Page 26 (vii) THE CONTRACTOR WILL INCLUDE THE PROVISIONS OF PARAGRAPHS (a) THROUGH (g) OF THIS SUBSECTION IN EVERY SUBCONTRACT OR PURCHASE ORDER UNLESS EXEMPTED BY RULES, REGULATIONS, OR ORDERS OF THE SECRETARY OF LABOR ISSUED PURSUANT TO SECTION 204 OF EXECUTIVE ORDER 11246 OF SEPTEDBER 24, 1965, SO THAT SUCH PROVISIONS SHALL BE BINDING UPON EACH SUBCONTRACTOR OR VENDOR. THE CONTRACTOR WILL TAKE SUCH ACTION WITH RESPECT TO ANY SUBCONTRACT OR PURCHASE ORDER AS THE SECRETARY OF LABOR OR UMTA MAY DIRECT AS A MEANS OF ENFORCING SUCH PROVISIONS, INCLUDING SANCTIONS FOR NONCOMPLIANCE; PROVIDED, HOWEVER, THAT IF A CONTRACTOR BECOMES INVOLVED IN, OR IS THREATENED WITH, LITIGATION WITH A SUBCONTRACTOR OR VENDOR AS A RESULT OF SUCH DIRECTION, THE CONTRACTOR MAY REQUEST THE UNITED STATES TO ENTER INTO SUCH LITIGATION TO PROTECT THE INTERESTS OF THE UNITED STATES. (b) The Company shall assure that each nonexempt prime contractor and subcontractor shall include in each nonexempt contract the requirements of Subsection 115. a. (1) (a) through (g) of Part II of this Agreement. (c) The Company further agrees that it will be bound by this equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work; provided that if the Company so participating is a State or local government, this equal opportunity clause does not apply to any Company, instrumentality or subdivision of such government that does not participate in work under the Agreement. (d) The Company agrees that it will assist and cooperate actively with UMTA and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor; that it will provide UMTA and the Secretary of Labor such information as they may require for the supervision of such compliance; and that it will otherwise assist UMTA in discharging its primary responsibility for securing compliance. (e) The Company further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, as amended, with any contractor that is debarred from or has not demonstrated eligibility for Government contracts and federally assisted construction contracts pursuant to the Executive Order; and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by UMTA or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the Company agrees that if it fails or refuses to comply Page 27 with these undertakings, UMTA may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this Agreement; refrain from extending any further assistance to the Company under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received from such Company; and refer the case to the Department of Justice for appropriate legal proceedings. 2. Specifications. The Company hereby agrees that it will incorporate or cause to be incorporated the specifications set forth below into all Federal or federally assisted construction contracts, or modifications thereof, in excess of $10,000 to be performed in geographical areas designated by the Director, Office of Federal Contract Compliance Programs of the Department of Labor pursuant to the regulations of the Secretary of Labor at 41 C.F.R. § 60-4.3 and in construction subcontracts in excess of $10,000 necessary in whole or in part to the performance of non-construction Federal contracts and subcontracts covered under Executive Order 11246: STANDARD FEDERAL EQUAL CONSTRUCTION CONTRACT ORDER 11246): EMPLOYMENT SPECIFICATIONS OPPORTUNITY (EXECUTIVE (1) AS USED iN THESE SPECIFICATIONS: (a) "COVERED AREA" MEANS THE GEOGRAPHICAL AREA DESCRIBED iN THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED; (b) "DIRECTOR" MEANS DIRECTOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, OR ANY PERSON TO WHOM THE DIRECTOR DELEGATES AUTHORITY; (c) "EMPLOYER IDENTIFICATION NUDBER" MEANS THE FEDERAL SOCIAL SECURITY NUDBER USED ON THE EMPLOYER'S QUARTERLY FEDERAL TAX RETURN, U.S. TREASURY DEPARTMENT FORM 941; (d) "MiNORiTY" INCLUDES: (i) BLACK (ALL PERSONS HAVING ORIGINS 1N ANY OF THE BLACK AFRICAN RACIAL GROUPS NOT OF HISPANIC ORIGIN); (ii) HISPANIC (ALL PERSONS OF MEXICAN, PUERTO RiCAN, CUBAN, CENTRAL OR SOUTH AMERICAN OR OTHER SPANISH CULTURE OR ORIGIN, REGARDLESS OF RACE); Page 28 (iii) ASIAN AND PACIFIC ISLANDER (ALL PERSONS HAVING ORIGINS IN ANY OF THE ORIGINAL PEOPLES OF THE FAR EAST, SOUTHEAST ASIA, THE INDIAN SUBCONTINENT, OR THE PACiFiC iSLANDS); AND (iv) AMERICAN INDIAN OR ALASKAN NATIVE (ALL PERSONS HAVING ORIGINS iN ANY OF THE ORIGINAL PEOPLES OF NORTH AMERICA AND MAINTAINING IDENTIFIABLE TRIBAL AFFILIATIONS THROUGH MEMBERSHIP AND PARTICIPATION OR COMMUNITY IDENTIFICATION). (2) WHENEVER THE CONTRACTOR, OR ANY SUBCONTRACTOR AT ANY TIER, SUBCONTRACTS A PORTION OF THE WORK INVOLVING ANY CONSTRUCTION TRADE, IT SHALL PHYSICALLY INCLUDE IN EACH SUBCONTRACT iN EXCESS OF $10,000 THE PROVISIONS OF THESE SPECIFICATIONS AND THE NOTICE WHICH CONTAINS THE APPLICABLE GOALS FOR MiNORiTY AND FEMALE PARTICIPATION AND WHICH IS SET FORTH iN THE SOLICITATIONS FROM WHICH THIS CONTRACT RESULTED. (3) IF THE CONTRACTOR IS PARTICIPATING (PURSUANT TO 41 C.F.R. § 60-4.5) iN A HOMETOWN PLAN APPROVED BY THE U.S. DEPARTMENT OF LABOR IN THE COVERED AREA, EITHER INDIVIDUALLY OR THROUGH AN ASSOCIATION, ITS AFFIRMATIVE ACTION OBLIGATIONS ON ALL WORK iN THE PLAN AREA (INCLUDING GOALS AND TIMETABLES) SHALL BE iN ACCORDANCE WITH THAT PLAN FOR THOSE TRADES WHICH HAVE UNIONS PARTICIPATING iN THE PLAN. CONTRACTORS MUST BE ABLE TO DEMONSTRATE THEIR PARTICIPATION IN AND COMPLIANCE WITH THE PROVISIONS OF ANY SUCH HOMETOWN PLAN. EACH CONTRACTOR OR SUBCONTRACTOR PARTICIPATING iN AN APPROVED PLAN IS iNDiViDUALLY REQUIRED TO COMPLY WITH ITS OBLIGATIONS UNDER THE EEO CLAUSE, AND TO MAKE A GOOD FAITH EFFORT TO ACHIEVE EACH GOAL UNDER THE PLAN iN EACH TRADE IN WHICH IT HAS EMPLOYEES. THE OVERALL GOOD FAITH PERFORMANCE BY OTHER CONTRACTORS OR SUBCONTRACTORS TOWARD A GOAL IN AN APPROVED PLAN DOES NOT EXCUSE ANY COVERED CONTRACTOR'S OR SUBCONTRACTOR'S FAILURE TO MAKE GOOD FAITH EFFORTS TO ACHIEVE THE PLAN GOALS AND TIMETABLES. (4) THE CONTRACTOR SHALL IMPLEMENT THE SPECIFIC AFFIRMATIVE ACTION STANDARDS PROVIDED iN PARAGRAPHS (7) (a) THROUGH (p) OF THESE SPECIFICATIONS. THE GOALS SET Page 29 FORTH iN THE SOLICITATION FROM WHICH THIS CONTRACT RESULTED ARE EXPRESSED AS PERCENTAGES OF THE TOTAL HOURS OF EMPLOYMENT AND TRAiNiNG OF MiNORiTY AND FEMALE UTILIZATION THE CONTRACTOR SHOULD REASONABLY BE ABLE TO ACHIEVE IN EACH CONSTRUCTION TRADE iN WHICH IT HAS EMPLOYEES iN THE COVERED AREA. COVERED CONSTRUCTION CONTRACTORS PERFORMING CONSTRUCTION WORK iN GEOGRAPHICAL AREAS WHERE THEY DO NOT HAVE A FEDERAL OR FEDERALLY ASSISTED CONSTRUCTION CONTRACT SHALL APPLY THE MINORITY AND FEMALE GOALS ESTABLISHED FOR THE GEOGRAPHICAL AREA WHERE THE WORK IS BEING PERFORMED. GOALS ARE PUBLISHED PERIODICALLY iN THE FEDERAL REGISTER iN NOTICE FORM, AND SUCH NOTICES MAY BE OBTAINED FROM ANY OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS OFFICE OR FROM FEDERAL PROCUREMENT CONTRACTING OFFICERS. THE CONTRACTOR IS EXPECTED TO MAKE SUBSTANTIALLY UNIFORM PROGRESS TOWARD ITS GOAL iN EACH CRAFT DURING THE PERIOD SPECIFIED. (5) NEITHER THE PROVISIONS OF ANY COLLECTIVE BARGAINING AGREEMENT, NOR THE FAILURE BY A UNION WITH WHOM THE CONTRACTOR HAS A COLLECTIVE BARGAINING AGREEMENT, TO REFER EITHER MiNORiTiES OR WOMEN SHALL EXCUSE THE CONTRACTOR'S OBLIGATIONS UNDER THESE SPECIFICATIONS, EXECUTIVE ORDER 11246, OR THE REGULATIONS PROMULGATED PURSUANT THERETO. (6) IN ORDER FOR THE NONWORKiNG TRAINING HOURS OF APPRENTICES AND TRAINEES TO BE COUNTED IN MEETING THE GOALS, SUCH APPRENTICES AND TRAINEES MUST BE EMPLOYED BY THE CONTRACTOR DURING THE TRAINING PERIOD, AND THE CON-TRACTOR MUST HAVE MADE A COMMITMENT TO EMPLOY THE APPRENTICES AND TRAINEES AT THE COMPLETION OF THEIR TRAINING, SUBJECT TO THE AVAILABILITY OF EMPLOYMENT OPPORTUNITIES. TRAINEES MUST BE TRAINED PURSUANT TO TRAINING PROGRAMS APPROVED BY THE U.S. DEPARTMENT OF LABOR. (7) THE CONTRACTOR SHALL TAKE SPECIFIC AFFIRMATIVE ACTIONS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY. THE EVALUATION OF THE CONTRACTOR'S COMPLIANCE WITH THESE SPECIFICATIONS SHALL BE BASED UPON ITS EFFORT TO ACHIEVE MAXIMUM RESULTS FROM ITS ACTIONS. THE CONTRACTOR SHALL DOCUMENT THESE EFFORTS FULLY, AND Page 30 SHALL IMPLEMENT AFFIRMATIVE ACTION STEPS AT LEAST AS EXTENSIVE AS THE FOLLOWING: (a) ENSURE AND MAINTAIN A WORKING ENVIRONMENT FREE OF HARASSMENT, INTIMIDATION, AND COERCION AT ALL SITES, AND IN ALL FACILITIES AT WHICH THE CON-TRACTOR'S EMPLOYEES ARE ASSIGNED TO WORK. THE CONTRACTOR, WHERE POSSIBLE, WILL ASSIGN TWO OR MORE WOMEN TO EACH CONSTRUCTION PROJECT. THE CONTRACTOR SHALL SPECIFICALLY ENSURE THAT ALL FOREMEN, SUPERINTENDENTS, AND OTHER ON-SITE SUPERVISORY PERSONNEL ARE AWARE OF AND CARRY OUT THE CONTRACTOR'S OBLIGATION TO MAINTAIN SUCH A WORKING ENVIRONMENT, WITH SPECIFIC ATTENTION TO MINORITY OR FEMALE INDIVIDUALS WORKING AT SUCH SITES OR IN SUCH FACILITIES. (b) ESTABLISH AND MAINTAIN A CURRENT LIST OF MINORITY AND FEMALE RECRUITMENT SOURCES, PROVIDE WRITTEN NOTICE TO MINORITY AND FEMALE RECRUITMENT SOURCES AND TO COMMUNITY ORGANIZATIONS WHEN THE CONTRACTOR OR ITS UNIONS HAVE EMPLOYMENT OPPORTUNITIES AVAILABLE, AND MAINTAIN A RECORD OF THE ORGANIZATIONS' RESPONSES. (c) MAINTAIN A CURRENT FILE OF THE NAMES, ADDRESSES AND TELEPHONE NUDBERS OF EACH MINORITY AND FEMALE OFF-THE-STREET APPLICANT AND MINORITY OR FEMALE REFERRAL FROM A UNION, A RECRUITMENT SOURCE OR COMMUNITY ORGANIZATION AND OF WHAT ACTION WAS TAKEN WITH RESPECT TO EACH SUCH INDIVIDUAL. IF SUCH INDIVIDUAL WAS SENT TO THE UNION HIRING HALL FOR REFERRAL AND WAS NOT REFERRED BACK TO THE CONTRACTOR BY THE UNION OR, IF REFERRED, NOT EMPLOYED BY THE CONTRACTOR, THIS SHALL BE DOCUMENTED IN THE FILE WITH THE REASON THEREFOR, ALONG WITH WHATEVER ADDITIONAL ACTIONS THE CONTRACTOR MAY HAVE TAKEN. (d) PROVIDE IMMEDIATE WRITTEN NOTIFICATION TO THE DIRECTOR WHEN THE UNION OR UNIONS WITH WHICH THE CONTRACTOR HAS A COLLECTIVE BARGAINING AGREEMENT HAS NOT REFERRED TO THE CONTRACTOR A MINORITY PERSON OR WOMAN SENT BY THE CONTRACTOR, OR WHEN THE CONTRACTOR HAS OTHER INFORMATION THAT THE UNION REFERRAL PROCESS HAS IMPEDED THE CONTRACTOR'S EFFORTS TO MEET ITS OBLIGATIONS. Page 31 (e) DEVELOP ON-THE-JOB TRAINING OPPORTUNITIES AND/OR PARTI-CIPATE IN TRAINING PROGRAMS FOR THE AREA WHICH EXPRESSLY INCLUDE MINORITIES AND WOMEN, INCLUDING UPGRADING PROGRAMS AND APPRENTICESHIP AND TRAINEE PROGRAMS RELEVANT TO THE CONTRACTOR'S EMPLOYMENT NEEDS, ESPECIALLY THOSE PROGRAMS FUNDED OR APPROVED BY THE DEPARTMENT OF LABOR. THE CONTRACTOR SHALL PROVIDE NOTICE OF THESE PRO-GRAMS TO THE SOURCES COMPILED UNDER (7)(b) ABOVE. (f) DISSEMINATE THE CONTRACTOR'S EEO POLICY BY PROVIDING NOTICE OF THE POLICY TO UNIONS AND TRAINING PROGRAMS AND REQUESTING THEIR COOPERATION IN ASSISTING THE CONTRACTOR IN MEETING ITS EEO OBLIGATIONS; BY INCLUDING IT IN ANY POLICY MANUAL AND COLLECTIVE BARGAINING AGREEMENT; BY PUBLICIZING IT IN THE COMPANY NEWSPAPER, ANNUAL REPORT, ETC.; BY SPECIFIC REVIEW OF THE POLICY WITH ALL MANAGEMENT PERSONNEL AND WITH ALL MINORITY AND FEMALE EMPLOYEES AT LEAST ONCE A YEAR; AND BY POSTING THE COMPANY EEO POLICY ON BULLETIN BOARDS ACCESSIBLE TO ALL EMPLOYEES AT EACH LOCATION WHERE CONSTRUCTION WORK IS PERFORMED. (g) REVIEW, AT LEAST ANNUALLY, THE COMPANY'S EEO POLICY AND AFFIRMATIVE ACTION OBLIGATIONS UNDER THESE SPECIFICATIONS WITH ALL EMPLOYEES HAVING RESPONSIBILITY FOR HIRING, ASSIGNMENT, LAYOFF, TERMINATION OR OTHER EMPLOYMENT DECISIONS INCLUDING SPECIFIC REVIEW OF THESE ITEMS WITH ON-SITE SUPERVISORY PERSONNEL SUCH AS SUPERINTENDENTS, GENERAL FOREMAN, ETC., PRIOR TO THE INITIATION OF CONSTRUCTION WORK AT ANY JOB SITE. A WRITTEN RECORD SHALL BE MADE AND MAINTAINED IDENTIFYING THE TIME AND PLACE OF THESE MEETINGS, PERSONS ATTENDING, SUBJECT MATTER DISCUSSED, AND DISPOSITION OF THE SUBJECT MATTER. (h) DISSEMINATE THE CONTRACTOR'S EEO POLICY EXTERNALLY BY INCLUDING IT IN ANY ADVERTISING IN THE NEWS MEDIA, SPECIFICALLY INCLUDING MINORITY AND FEMALE NEWS MEDIA, AND PROVIDING WRITTEN NOTIFICATION TO AND DISCUSSING THE CONTRACTOR'S EEO POLICY WITH OTHER CONTRACTORS AND SUBCONTRACTORS WITH WHOM THE CONTRACTOR DOES OR ANTICIPATES DOING BUSINESS. Page 32 (i) DIRECT RECRUITMENT EFFORTS, BOTH ORAL AND WRITTEN, TO MINORITY, FEMALE AND COMMUNITY ORGANIZATIONS, TO SCHOOLS WITH MiNORiTY AND FEMALE STUDENTS AND TO MiNORiTY AND FEMALE RECRUiT-MENT AND TRAINING ORGANIZATIONS SERVING THE CONTRACTOR'S RECRUITMENT AREA AND EMPLOYMENT NEEDS. NOT LATER THAN ONE MONTH PRIOR TO THE DATE FOR THE ACCEPTANCE OF APPLICATIONS FOR APPRENTICESHIP OR OTHER TRAINING BY ANY RECRUITMENT SOURCE, THE CONTRACTOR SHALL SEND WRITTEN NOTICE TO ORGANIZATIONS SUCH AS THE ABOVE, DESCRIBING THE OPENINGS, SCREENING PROCEDURES, AND TESTS TO BE USED IN THE SELECTION PROCESS. (j) ENCOURAGE PRESENT MINORITY AND FEMALE EMPLOYEES TO RECRUIT OTHER MINORITY PERSONS AND WOMEN AND, WHERE REASONABLE, PROVIDE AFTER SCHOOL, SUMMER AND VACATION EMPLOYMENT TO MINORITY AND FEMALE YOUTH, BOTH ON THE SITE AND IN OTHER AREAS OF THE CONTRACTOR'S WORK FORCE. (k) VALIDATE ALL TESTS AND OTHER SELECTION REQUIREMENTS WHERE THERE IS AN OBLIGATION TO DO SO UNDER 41 C.F.R. PART 60-3. (1) CONDUCT, AT LEAST ANNUALLY, AN INVENTORY AND EVALUATION AT LEAST OF ALL MINORITY AND FEMALE PERSONNEL FOR PROMOTIONAL OPPORTUNITIES AND ENCOURAGE THESE EMPLOYEES TO SEEK OR TO PREPARE FOR, THROUGH APPROPRIATE TRAINING, ETC., SUCH OPPORTUNITIES. (m) ENSURE THAT SENIORITY PRACTICES, JOB CLASSIFICATIONS, WORK ASSIGNMENTS AND OTHER PERSONNEL PRACTICES DO NOT HAVE A DISCRIMINATORY EFFECT BY CONTINUALLY MONITORING ALL PERSONNEL AND EMPLOYMENT RELATED ACTIVITIES TO ENSURE THAT THE EEO POLICY AND THE CONTRACTOR'S OBLIGATIONS UNDER THESE SPECIFICATIONS ARE BEING CARRIED OUT. (n) ENSURE THAT ALL FACILITIES AND COMPANY ACTIVITIES ARE NONSEGREGATED EXCEPT THAT SEPARATE OR SINGLE-USER TOILET AND NECESSARY CHANGING FACILITIES SHALL BE PROVIDED TO ASSURE PRIVACY BETWEEN SEXES. (o) DOCUMENT AND MAINTAIN A RECORD OF ALL SOLICITATIONS OF OFFERS FOR SUBCONTRACTS FROM MINORITY AND FEMALE CONSTRUCTION CONTRACTORS AND Page 33 SUPPLIERS, iNCLUDiNG CIRCULATION OF SOLICITATIONS TO MiNORiTY AND FEMALE CONTRACTOR ASSOCiATiONS AND OTHER BUSINESS ASSOCiATiONS. (p) CONDUCT A REVIEW, AT LEAST ANNUALLY, OF ALL SUPERVISORS' ADHERENCE TO AND PERFORMANCE UNDER THE CONTRACTOR'S EEO POLICIES AND AFFIRMATIVE ACTION OBLIGATIONS. (8) CONTRACTORS ARE ENCOURAGED TO PARTICIPATE iN VOLUNTARY ASSOCIATIONS THAT ASSIST iN FULFILLING ONE OR MORE OF THEIR AFFIRMATIVE ACTION OBLIGATIONS SET FORTH IN PARAGRAPHS (7) (a) THROUGH (p). THE EFFORTS OF A CONTRACTOR ASSOCIATION, JOINT CONTRACTOR UNION, CONTRACTOR COMMUNITY, OR OTHER SIMILAR GROUP OF WHICH THE CONTRACTOR IS A MEMBER AND PARTICIPANT, MAY BE ASSERTED AS FULFILLING ANY ONE OR MORE OF ITS OBLIGATIONS UNDER PARAGRAPHS (7) (a) THROUGH (p) OF THESE SPECIFICATIONS, PROVIDED THAT THE CONTRACTOR ACTIVELY PARTICIPATES IN THE GROUP, MAKES EVERY EFFORT TO ASSURE THAT THE GROUP HAS A POSITIVE IMPACT ON THE EMPLOYMENT OF MINORITIES AND WOMEN IN THE INDUSTRY, ENSURES THAT THE CONCRETE BENEFITS OF THE PROGRAM ARE REFLECTED iN THE CONTRACTOR'S MiNORiTY AND FEMALE WORK FORCE PARTICIPATION, MAKES A GOOD FAITH EFFORT TO MEET ITS INDIVIDUAL GOALS AND TIMETABLES, AND CAN PROVIDE ACCESS TO DOCUMENTATION THAT DEMONSTRATES THE EFFECTIVENESS OF ACTIONS TAKEN ON BEHALF OF THE CONTRACTOR. THE OBLIGATION TO COMPLY, HOWEVER, IS THE CONTRACTOR'S AND FAILURE OF SUCH A GROUP TO FULFILL AN OBLIGATION SHALL NOT BE A DEFENSE FOR THE CONTRACTOR'S NONCOMPLIANCE. (9) A SINGLE GOAL FOR MINORITIES AND A SEPARATE SINGLE GOAL FOR WOMEN HAVE BEEN ESTABLISHED. THE CONTRACTOR, HOWEVER, iS REQUIRED TO PROVIDE EQUAL EMPLOYMENT OPPORTUNITY AND TO TAKE AFFIRMATIVE ACTION FOR ALL MINORITY GROUPS, BOTH MALE AND FEMALE, AND ALL WOMEN, BOTH MiNORiTY AND NON-MiNORiTY. CONSEQUENTLY, THE CONTRACTOR MAY BE IN ViOLATiON OF THE EXECUTIVE ORDER IF A PARTICULAR GROUP IS EMPLOYED IN A SUBSTANTIALLY DISPARATE MANNER (EVEN THOUGH THE CONTRACTOR HAS ACHIEVED ITS GOAL FOR WOMEN GENERALLY, THE CONTRACTOR MAY BE IN VIOLATION OF THE EXECUTIVE ORDER IF A SPECIFIC MiNORiTY GROUP OF WOMEN IS UNDERUTILIZED). Page 34 (10) THE CONTRACTOR SHALL NOT USE THE GOALS AND TIMETABLES OR AFFIRMATIVE ACTION STANDARDS TO DiSCRiMiNATE AGAINST ANY PERSON BECAUSE OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN. (11) THE CONTRACTOR SHALL NOT ENTER INTO ANY SUBCONTRACT WITH ANY PERSON OR FIRM DEBARRED FROM GOVERNMENT CONTRACTS PURSUANT TO EXECUTIVE ORDER 11246. (12) THE CONTRACTOR SHALL CARRY OUT SUCH SANCTIONS AND PENAL-TIES FOR VIOLATION OF THESE SPECIFICATIONS AND OF THE EQUAL OPPORTUNITY CLAUSE, INCLUDING SUSPENSION, TERMINATION AND CANCELLATION OF EXiSTiNG SUBCONTRACTS AS MAY BE IMPOSED OR ORDERED PURSUANT TO EXECUTIVE ORDER 11246, AS AMENDED, AND ITS iMPLEMENTiNG REGULATIONS, BY THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS. ANY CONTRACTOR WHO FALLS TO CARRY OUT SUCH SANCTIONS AND PENALTIES SHALL BE iN VIOLATION OF THESE SPECIFICATIONS AND EXECUTIVE ORDER 11246, AS AMENDED. (13) THE CONTRACTOR, IN FULFILLING ITS OBLIGATIONS UNDER THESE SPECIFICATIONS, SHALL IMPLEMENT SPECIFIC AFFIRMATIVE ACTION STEPS, AT LEAST AS EXTENSIVE AS THOSE STANDARDS PRESCRIBED iN PARAGRAPH (7) OF THESE SPECIFICATIONS, SO AS TO ACHIEVE MAXIMUM RESULTS FROM ITS EFFORTS TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY. IF THE CONTRACTOR FALLS TO COMPLY WITH THE REQUIREMENTS OF THE EXECUTIVE ORDER, THE iMPLEMENTiNG REGULATIONS, OR THESE SPECIFICATIONS, THE DIRECTOR SHALL PROCEED iN ACCORDANCE WiTH 41 C.F.R. § 60-4.8. (14) THE CONTRACTOR SHALL DESIGNATE A RESPONSIBLE OFFICIAL TO MONITOR ALL EMPLOYMENT RELATED ACTIVITY TO ENSURE THAT THE COMPANY EEO POLICY IS BEING CARRIED OUT, TO SUBMIT REPORTS RELATING TO THE PROVISIONS HEREOF AS MAY BE REQUIRED BY THE GOVERNMENT AND TO KEEP RECORDS. RECORDS SHALL AT LEAST INCLUDE FOR EACH EMPLOYEE THE NAME, AD-DRESS, TELEPHONE NUDBERS, CONSTRUCTION TRADE, UNION AFFiLiATiON IF ANY, EMPLOYEE IDENTIFICATION NUDBER WHEN ASSIGNED, SOCIAL SECURITY NUDBER, RACE, SEX, STATUS (E.G., MECHANIC, APPRENTICE TRAINEE, HELPER, OR LABORER), DATES OF CHANGES iN STATUS, HOURS WORKED PER WEEK IN THE iNDiCATED TRADE, Page 35 RATE OF PAY, AND LOCATIONS AT WHICH THE WORK WAS PERFORMED. RECORDS SHALL BE MAINTAINED IN AN EASILY UNDERSTANDABLE AND RETRIEVABLE FORM; HOWEVER, TO THE EXTENT THAT EXiSTiNG RECORDS SATISFY THIS REQUIREMENT, CONTRACTORS SHALL NOT BE REQUIRED TO MAiNTAiN SEPARATE RECORDS. (15) NOTHING HEREIN PROVIDED SHALL BE CONSTRUED AS A LIMITATION UPON THE APPLICATION OF OTHER LAWS THAT ESTABLISH DIFFERENT STANDARDS OF COMPLIANCE OR UPON THE APPLICATION OF REQUIREMENTS FOR THE HIRING OF LOCAL OR OTHER AREA RESIDENTS (E.G., THOSE UNDER THE PUBLIC WORKS EMPLOYMENT ACT OF 1977 AND THE COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM). 3. Notice. The Company hereby agrees that it will ensure that the notice set forth below shall be included in, and shall be a part of, all solicitations for offers and bids on all Federal and federally assisted construction contracts or subcontracts in excess of $10,000 to be performed in geographical areas designated by the Director, Office of Federal Contract Compliance Programs of the Department of Labor at 41 C.F.R. § 60- 4.2: NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246): (1) THE OFFEROR'S OR BIDDER'S ATTENTION IS CALLED TO THE "EQUAL OPPORTUNITY CLAUSE" AND THE "STANDARD FEDERAL EQUAL EMPLOYMENT SPECIFICATIONS" SET FORTH HEREIN. (2) (a) THE GOALS AND THE TIMETABLES FOR MiNORiTY AND FEMALE PARTICIPATION, EXPRESSED iN PERCENTAGE TERMS FOR THE CONTRACTOR'S AGGREGATE WORK FORCE iN EACH TRADE ON ALL CONSTRUCTION WORK iN THE COVERED AREA, ARE AS FOLLOWS: TIMETABLES GOALS FOR MINORITY PARTICIPATION IN EACH TRADE GOALS FOR PARTICIPATION EACH TRADE INSERT GOALS FOR EACH YEAR INSERT GOALS EACH YEAR FEMALE IN FOR Page 36 (b) THESE GOALS ARE APPLICABLE TO ALL THE CONTRACTOR'S CONSTRUCTION WORK (WHETHER OR NOT iT iS FEDERAL OR FEDERALLY ASSISTED) PERFORMED IN THE COVERED AREA. IF THE CONTRACTOR PERFORMS CONSTRUCTION WORK IN A GEOGRAPHICAL AREA LOCATED OUTSIDE OF THE COVERED AREA, IT SHALL APPLY THE GOALS ESTABLISHED FOR SUCH GEOGRAPHICAL AREA WHERE THE WORK IS ACTUALLY PERFORMED. WITH REGARD TO THIS SECOND AREA, THE CONTRACTOR ALSO IS SUBJECT TO THE GOALS FOR BOTH ITS FEDERALLY INVOLVED AND NONFEDERALLY iNVOLVED CONSTRUCTION. (c) THE CONTRACTOR'S COMPLIANCE WITH THE EXECUTIVE ORDER AND THE REGULATIONS AT 41 C.F.R. PART 60-4 SHALL BE BASED ON ITS IMPLEMENTATION OF THE EQUAL OPPORTUNITY CLAUSE, SPECIFIC AFFIRMATIVE ACTION OBLIGATIONS REQUIRED BY THE SPECIFICATIONS SET FORTH AT 41 C.F.R. § 60-4.3(a), AND ITS EFFORTS TO MEET THE GOALS. THE HOURS OF MiNORiTY AND FEMALE EMPLOYMENT AND TRAINING MUST BE SUBSTANTIALLY UNIFORM THROUGHOUT THE LENGTH OF THE CONTRACT, AND iN EACH TRADE, AND THE CONTRACTOR SHALL MAKE A GOOD FAITH EFFORT TO EMPLOY MiNORiTiES AND WOMEN EVENLY ON EACH OF ITS PROJECTS. THE TRANSFER OF MiNORiTY OR FEMALE EMPLOYEES OR TRAINEES FROM CONTRACTOR TO CONTRACTOR OR FROM PROJECT TO PROJECT FOR THE SOLE PURPOSE OF MEETING THE CONTRACTOR'S GOALS SHALL BE A VIOLATION OF THE CON-TRACT, THE EXECUTIVE ORDER, AND THE REGULATIONS iN AT C.F.R. PART 60-4. COMPLIANCE WITH THE GOALS WILL BE MEASURED AGAINST THE TOTAL WORK HOURS PERFORMED. (3) THE CONTRACTOR SHALL PROVIDE WRITTEN NOTIFICATION TO THE DIRECTOR OF THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS WITHIN 10 WORKING DAYS OF AWARD OF ANY CONSTRUCTION SUBCONTRACT iN EXCESS OF $10,000 AT ANY TIER FOR CONSTRUCTION WORK UNDER THE CONTRACT RESULTING FROM THIS SOLICITATION. THE NOTIFICATION SHALL LIST THE NAME, ADDRESS AND TELEPHONE NUDBER OF THE SUBCONTRACTOR; EMPLOYER IDENTIFICATION NUDBER OF THE SUBCONTRACTOR; ESTIMATED DOLLAR AMOUNT OF THE SUBCONTRACT; ESTIMATED STARTING AND COMPLETION DATES OF THE SUBCONTRACT; AND THE GEOGRAPHICAL AREA IN WHICH THE SUBCONTRACT IS TO BE PERFORMED. Page 37 (4) AS USED 1N THIS NOTICE, AND 1N THE CONTRACT RESULTING FROM THIS SOLICITATION, THE "COVERED AREA" IS (INSERT DESCRIPTION OF THE GEOGRAPHICAL AREAS WHERE THE CONTRACT IS TO BE PERFORMED, GIVING THE STATE, COUNTY AND CITY, IF ANY). 4. Accommodations for the Physically Handicapped. UMTA assist-ed construction, designs, and alterations shall be undertaken in accordance with and meet the requirements of the provisions of General Services Administration (GSA) regulations set forth at 41 C.F.R. Subpart 101-19.6, unless an exception is granted in writing by UMTA or a waiver is granted in writing by GSA. 5. Contract Security. The Company shall follow the requirements of 49 C.F.R. § 18.36(h) or OMB Circular A-110, Attachment B, as applicable, and Federal (UMTA) guidelines with regard to bid guarantees and bonding requirements. 6. Signs. The Company shall cause to be erected at the site of construction, and maintained during construction, signs satisfactory to the Department of Transportation identifying the Project and indicating that the Government is participating in the development of the Project. 7. Safety Standards. Pursuant to section 107 of the Con-tract Work Hours and Safety Standards Act and Department of Labor regulations set forth at 29 C.F.R. § 1926, no laborer or mechanic working on a construction contract shall be required to work in surroundings or under working conditions that are unsanitary, hazardous, or dangerous to his or her health and safety as deter-mined under construction and health standards promulgated by the Secretary of Labor. 8. Liquidated Damages. The Company shall include in all con-tracts for construction a clause providing for liquidated damages, where appropriate. Liquidated damages clauses are appropriate if the parties may reasonably expect to suffer damages (increased costs on the Project involved) from the late completion of the construction and the extent or amount of such damages would be difficult or impossible to determine. The assessment for damages shall be at a specific rate per day for each day of overrun in contract time; and the rate must be specified in the third party contract. Any liquidated damages recovered shall be credited to the Project account involved unless the Government permits otherwise. V. Pursuant to regulations set forth at 29 C.F.R. Part 5, the following provisions shall be incorporated in each construction contract of $25,000 let by the Company in carrying out the Project. 1. MINIMUM WAGES. (a) ALL LABORERS AND MECHANICS EMPLOYED OR WORKING UPON THE SITE OF THE WORK (OR UNDER THE Page 38 UNITED STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), WILL BE PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITTED BY REGULATIONS ISSUED BY THE SECRETARY OF LABOR UNDER THE COPELAND ACT, 29 C.F.R. PART 3), THE FULL AMOUNT OF WAGES AND BONA FIDE FR1NGE BENEFITS (OR CASH EQUIVALENTS THEREOF) DUE AT THE TIME OF PAYMENT COMPUTED AT RATES NOT LESS THAN THOSE CONTAINED IN THE WAGE DETERMINATION OF THE SECRE-TARY OF LABOR WHICH IS ATTACHED HERETO AND MADE A PART HEREOF, REGARDLESS OF ANY CONTRACTUAL RELATION-SHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR AND SUCH LABORERS AND MECHANICS. CONTRIBUTIONS MADE OR COSTS REASONABLY ANTICIPATED FOR BONA FIDE FRINGE BENEFITS UNDER SECTION l(b) (2) OF THE DAVIS-BACON ACT ON BEHALF OF LABORERS OR MECHANICS ARE CONSIDERED WAGES PAID TO SUCH LABORERS OR MECHANICS, SUBJECT TO THE PROVISIONS OF 29 C.F.R. § 5.5(a)(1)(iv); ALSO, REGULAR CONTRIBUTIONS MADE OR COSTS INCURRED FOR MORE THAN A WEEKLY PERIOD (BUT NOT LESS OFTEN THAN QUARTERLY) UNDER PLANS, FUNDS, OR PROGRAMS THAT COVER THE PARTICULAR WEEKLY PERIOD, ARE DEEMED TO BE CONSTRUCTIVELY MADE OR iNCURRED DURING SUCH WEEKLY PERIOD. SUCH LABORERS AND MECHANICS SHALL BE PAID THE APPROPRIATE WAGE RATE AND FRINGE BENEFITS ON THE WAGE DETERMiNATiON FOR THE CLASSIFICATION OF WORK ACTUALLY PERFORM-ED, WITHOUT REGARD TO SKILL, EXCEPT AS PROVIDED AT 29 C.F.R. § 5.5(a)(4), LABORERS OR MECHANICS PERFORMING WORK iN MORE THAN ONE CLASSIFICATION MAY BE COMPENSATED AT THE RATE SPECIFIED FOR EACH CLASSIFICATION FOR THE TIME ACTUALLY WORKED THEREIN: PROVIDED, THAT THE EMPLOYER'S PAYROLL RECORDS ACCURATELY SET FORTH THE TIME SPENT IN EACH CLASSIFICATION IN WHICH WORK IS PERFORMED. THE WAGE DETERMiNATiON (iNCLUDING ANY ADDITIONAL CLASSIFICATION AND WAGE RATES CONFORMED UNDER 29 C.F.R. § 5.5(a) (1) (ii) AND THE DAVIS-BACON POSTER (WH-1321) SHALL BE POSTED AT ALL TIMES BY THE CONTRACTOR AND ITS SUBCONTRACTORS AT THE SITE OF THE WORK IN A PROMINENT AND ACCESSIBLE PLACE WHERE IT CAN BE EASILY SEEN BY THE WORKERS. (b) 1. THE CONTRACTING OFFICER SHALL REQUIRE THAT ANY CLASS OF LABORERS OR MECHANICS THAT IS NOT Page 39 LISTED IN THE WAGE DETERMiNATiON AND THAT IS TO BE EMPLOYED UNDER THE CONTRACT SHALL BE CLASSIFIED iN CONFORMANCE WITH THE WAGE DETERMINATION. THE CONTRACTING OFFICER SHALL APPROVE AN ADDITIONAL CLASSIFICATION AND WAGE RATE AND FRINGE BENEFITS THEREFOR ONLY WHEN THE FOLLOWING CRITERIA HAVE BEEN MET: a. THE WORK TO BE PERFORMED BY THE CLASSIFICATION REQUEST-ED IS NOT PERFORMED BY A CLASSIFICATION iN THE WAGE DETERMINATION; AND b. THE CLASSIFICATION IS UTILIZED iN THE AREA BY THE CONSTRUCTION iNDUSTRY; AND c. THE PROPOSED WAGE RATE, INCLUDING ANY BONA FIDE FRINGE BENEFITS, BEARS A REASONABLE RELATIONSHIP TO THE WAGE RATES CONTAINED IN THE WAGE DETERMINATION. 2. IF THE CONTRACTOR AND THE LABORERS AND MECHANICS TO BE EMPLOYED iN THE CLASSIFICATION (IF KNOWN), OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER AGREE ON THE CLASSIFICATION AND WAGE RATE (iNCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS WHERE APPROPRIATE), A REPORT OF THE ACTION TAKEN SHALL BE SENT BY THE CONTRACTING OFFICER TO THE ADMiNiSTRATOR OF THE WAGE AND HOUR DIVISION, EMPLOYMENT STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. 20210. THE ADMiNiSTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL APPROVE, MODIFY, OR DISAPPROVE EVERY ADDITION-AL CLASSIFICATION ACTION WITHIN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WiTHiN THE 30-DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY. 3. iN THE EVENT THE CONTRACTOR, LABORERS OR MECHANICS TO BE EMPLOYED IN THE CLASSIFICATION OR THEIR REPRESENTATIVES, AND THE CONTRACTING OFFICER DO NOT AGREE ON THE PROPOSED CLASSIFICATION AND WAGE RATE (INCLUDING THE AMOUNT DESIGNATED FOR FRINGE BENEFITS, WHERE APPROPRIATE), THE CONTRACTING OFFICER SHALL REFER THE QUESTIONS INCLUDING THE VIEWS OF ALL INTERESTED PARTIES AND THE RECOMMENDATION OF THE CONTRACTING OFFICER, TO THE ADMiNiSTRATOR FOR Page 40 DETERMiNATiON. THE ADMiNiSTRATOR, OR AN AUTHORIZED REPRESENTATIVE, WILL ISSUE A DETERMiNATiON WiTHiN 30 DAYS OF RECEIPT AND SO ADVISE THE CONTRACTING OFFICER OR WILL NOTIFY THE CONTRACTING OFFICER WITH-IN THE 30- DAY PERIOD THAT ADDITIONAL TIME IS NECESSARY. 4. THE WAGE RATE (INCLUDING FRINGE BENEFITS WHERE APPROPRIATE) DETERMINED PURSUANT TO 29 C.F.R. § 5.5(a) (i) (1) (B) OR 29 C.F.R. § 5.5(a) (i) (1) (C), SHALL BE PAID TO ALL WORKERS PERFORMING WORK iN THE CLASSIFICATION UNDER THIS CONTRACT FROM THE FIRST DAY ON WHICH WORK IS PERFORMED iN THE CLASSIFICATION. (c) WHENEVER THE MINIMUM WAGE RATE PRESCRIBED IN THE CONTRACT FOR A CLASS OF LABORERS OR MECHANICS INCLUDES A FRINGE BENEFIT WHICH IS NOT EXPRESSED AS AN HOURLY RATE, THE CONTRACTOR SHALL EITHER PAY THE BENEFIT AS STATED iN THE WAGE DETERMiNATiON OR SHALL PAY ANOTHER BONA FIDE FRINGE BENEFIT OR AN HOURLY CASH EQUIVALENT THEREOF. (d) IF THE CONTRACTOR DOES NOT MAKE PAYMENTS TO A TRUSTEE OR OTHER THIRD PERSON, THE CONTRACTOR MAY CONSIDER AS PART OF THE WAGES OF ANY LABORER OR MECHANIC THE AMOUNT OF ANY COSTS REASONABLY ANTICIPATED iN PROVIDING BONA FIDE FRINGE BENEFITS UNDER A PLAN OR PROGRAM, PROVIDED, THAT THE SECRETARY OF LABOR HAS FOUND, UPON THE WRITTEN REQUEST OF THE CONTRACTOR, THAT THE APPLICABLE STANDARDS OF THE DAVIS-BACON ACT HAVE BEEN MET. THE SECRETARY OF LABOR MAY REQUIRE THE CONTRACTOR TO SET ASIDE IN A SEPARATE ACCOUNT ASSETS FOR THE MEETING OF OBLIGATIONS UNDER THE PLAN OR PROGRAM. 2. WITHHOLDING. UMTA SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD FROM THE CONTRACTOR, UNDER THIS AGREEMENT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME COMPANY OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT TO DAVIS-BACON PREVAILING WAGE REQUIREMENTS, WHICH IS WITHHELD BY THE SAME PRIME CONTRACTOR, SO MUCH OF THE ACCRUED PAYMENTS OR ADVANCES AS MAY BE CONSIDERED NECESSARY TO PAY LABORERS AND MECHANICS, iNCLUDING APPRENTICES, TRAINEES, AND HELPERS, EMPLOYED BY THE CONTRACTOR OR Page 41 ANY SUBCONTRACTOR THE FULL AMOUNT OF WAGES REQUIRED BY THE CONTRACT. iN THE EVENT OF FAILURE TO PAY ANY LABORER OR MECHANIC, iNCLUDiNG ANY APPRENTICE, TRAINEE, OR HELPER, EMPLOYED OR WORKING ON THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937 OR UNDER THE HOUSING ACT OF 1949 iN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT), ALL OR PART OF THE WAGES REQUIRED BY THE CONTRACT, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS UNTIL SUCH VIOLATIONS HAVE CEASED. 3. PAYROLLS AND BASIC RECORDS. (a) PAYROLLS AND BASIC RECORDS RELATING THERETO SHALL BE MAINTAINED BY THE CONTRACTOR DURING THE COURSE OF THE WORK AND PRESERVED FOR A PERIOD OF THREE YEARS THERE-AFTER FOR ALL LABORERS AND MECHANICS WORKING AT THE SITE OF THE WORK (OR UNDER THE UNITED STATES HOUSING ACT OF 1937, OR UNDER THE HOUSING ACT OF 1949, IN THE CONSTRUCTION OR DEVELOPMENT OF THE PROJECT). SUCH RECORDS SHALL CONTAIN THE NAME, ADDRESS, AND SOCIAL SECURITY NUDBER OF EACH SUCH WORKER, HIS OR HER CORRECT CLASSiFiCATiON, HOURLY RATES OF WAGES PAiD (INCLUDING RATES OF CONTRIBUTIONS OR COSTS ANTICIPATED FOR BONA FIDE FRINGE BENEFITS OR CASH EQUIVALENTS THEREOF OF THE TYPES DESCRIBED iN SECTION l(b) (2) (B) OF THE DAVIS- BACON ACT), DALLY AND WEEKLY NUDBER OF HOURS WORKED, DEDUCTIONS MADE AND ACTUAL WAGES PAID. WHENEVER THE SECRETARY OF LABOR HAS FOUND UNDER 29 C.F.R. § 5.5(a) (1) (iv) THAT THE WAGES OF ANY LABORER OR MECHANIC INCLUDE THE AMOUNT OF ANY COSTS REASONABLY ANTICIPATED iN PROViDiNG BENEFITS UNDER A PLAN OR PROGRAM DESCRIBED iN SECTION l(b) (2) (B) OF THE DAVIS- BACON ACT, THE CONTRACTOR SHALL MAINTAIN RECORDS WHICH SHOW THAT THE COMMITMENT TO PROVIDE SUCH BENEFITS IS ENFORCE-ABLE, THAT THE PLAN OR PROGRAM IS FiNANCiALLY RESPONSIBLE, AND THAT THE PLAN OR PROGRAM HAS BEEN COMMUNICATED iN WRITING TO THE LABORERS OR MECHANICS AFFECTED, AND RECORDS WHICH SHOW THE COSTS ANTICIPATED OR THE ACTUAL COSTS iNCURRED iN PROViDiNG SUCH BENEFITS. CONTRACTORS EMPLOYING APPRENTICES OR TRAINEES UNDER APPROVED PROGRAMS SHALL MAiNTAiN WRITTEN EVIDENCE OF THE REGISTRATION OF APPRENTICESHIP PROGRAMS AND CERTIFICATION OF TRAINEE PROGRAMS, THE Page 42 REGISTRATION OF THE APPRENTICES AND TRAINEES, AND THE RATIOS AND WAGE RATES PRESCRIBED IN THE APPLICABLE PRO-GRAMS. (b) 1. THE CONTRACTOR SHALL SUBMIT WEEKLY FOR EACH WEEK iN WHICH ANY CONTRACT WORK IS PERFORMED A COPY OF ALL PAYROLLS TO UMTA IF UMTA IS A PARTY TO THE CONTRACT; BUT IF UMTA IS NOT SUCH A PARTY, THE CONTRACTOR WILL SUBMIT THE PAYROLLS TO THE APPLICANT, SPONSOR, OR OWNER, AS THE CASE MAY BE, FOR TRANSMISSION TO UMTA. THE PAYROLLS SUBMITTED SHALL SET OUT ACCURATELY AND COMPLETELY ALL OF THE INFORMATION REQUIRED TO BE MAINTAINED UNDER 29 C.F.R. § 5.5(a) (3) (i). THIS INFORMATION MAY BE SUBMITTED iN ANY FORM DESIRED. OPTIONAL FORM WH-347 IS AVAILABLE FOR THIS PURPOSE AND MAY BE PURCHASED FROM THE SUPERINTENDENT OF DOCUMENTS (FEDERAL STOCK NO. 029- 005-00014-1), U.S. GOVERNMENT PRiNTiNG OFFICE, WASHINGTON, D.C. 20402. THE PRIME CONTRACTOR IS RESPONSIBLE FOR THE SUBMISSION OF COPIES OF PAYROLLS BY ALL SUBCONTRACTORS. 2. EACH PAYROLL SUBMITTED SHALL BE ACCOMPANIED BY A "STATEMENT OF COMPLIANCE," SIGNED BY THE CONTRACTOR OR SUBCONTRACTOR OR HIS OR HER AGENT WHO PAYS OR SUPERVISES THE PAYMENT OF THE PERSONS EMPLOYED UNDER THE CONTRACT AND SHALL CERTIFY THE FOLLOWING: (a) THAT THE PAYROLL FOR THE PAYROLL PERIOD CONTAINS THE INFORMATION REQUIRED TO BE MAiNTAiNED UNDER 29 C.F.R. § 5.5 (a) (3) (i) AND THAT SUCH INFORMATION IS CORRECT AND COMPLETE; (b) THAT EACH LABORER OR MECHANIC (iNCLUDING EACH HELPER, APPRENTICE, AND TRAINEE) EMPLOYED ON THE CONTRACT DURING THE PAYROLL PERIOD HAS BEEN PAID THE FULL WEEKLY WAGES EARNED, WITHOUT REBATE, EITHER DIRECTLY OR iNDiRECTLY, AND THAT NO DEDUCTIONS HAVE BEEN MADE EITHER DIRECTLY OR INDIRECTLY FROM THE FULL WAGES EARNED, OTHER THAN PERMISSIBLE DEDUCTIONS AS SET FORTH AT 29 C.F.R. PART 3; (c) THAT EACH LABORER OR MECHANIC HAS BEEN PAID NOT LESS THAN THE APPLICABLE WAGE RATES AND FRINGE BENEFITS OR CASH EQUIVALENTS FOR THE Page 43 CLASSIFICATION OF WORK PER-FORMED, AS SPECIFIED iN THE APPLICABLE WAGE DETERMINATION iNCORPORATED iNTO THE CON-TRACT. 3. THE WEEKLY SUBMISSION OF A PROPERLY EXECUTED CERTIFICATION SET FORTH ON THE REVERSE SIDE OF OPTIONAL FORM WH-347 SHALL SATISFY THE REQUIREMENT FOR SUBMISSION OF THE "STATEMENT OF COMPLIANCE" REQUIRED BY 29 C.F.R. § 5.5(a) (3) (ii) (B). 4. THE FALSIFICATION OF ANY OF THE ABOVE CERTIFICATIONS MAY SUBJECT THE CONTRACTOR OR SUBCONTRACTOR TO CIVIL OR CRIMINAL PROSECUTION UNDER 18 U.S.C. § tOOt AND 31 U.S.C. § 231. (c) THE CONTRACTOR OR SUBCONTRACTOR SHALL MAKE THE RECORDS REQUIRED UNDER 29 C.F.R. § 5.5(a) (3) (i) AVAILABLE FOR iNSPECTiON, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES OF UMTA OR THE DEPARTMENT OF LABOR, AND SHALL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB. IF THE CONTRACTOR OR SUBCONTRACTOR FALLS TO SUBMIT THE REQUIRED RECORDS OR MAKE THEM AVAILABLE, UMTA MAY, AFTER WRITTEN NOTICE TO THE CONTRACTOR, SPONSOR, APPLICANT, OR OWNER, TAKE SUCH ACTION AS MAY BE NECESSARY TO CAUSE THE SUSPENSION OF ANY FURTHER PAYMENT, ADVANCE, OR GUARANTEE OF FUNDS. FURTHER-MORE, FAILURE TO SUBMIT THE REQUIRED RECORDS UPON REQUEST OR MAKE SUCH RECORDS AVAILABLE MAY BE GROUNDS FOR DEBARMENT ACTION PURSUANT TO 29 C.F.R. § 5.12. 4. APPRENTICES AND TRAINEES. (a) APPRENTICES. APPRENTICES WILL BE PERMITTED TO WORK AT LESS THAN THE PREDETERMINED RATE FOR THE WORK THEY PERFORMED WHEN THEY ARE EMPLOYED PURSUANT TO AND iNDiViDUALLY REGISTERED iN A BONA FIDE APPRENTICESHIP PROGRAM REGISTERED WITH THE U.S. DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMiNiSTRATiON, BUREAU OF APPRENTICESHIP AND TRAINING, OR WITH A STATE APPRENTICESHIP COMPANY RECOGNIZED BY THE BUREAU, OR IF A PERSON IS EMPLOYED iN HIS OR HER FIRST 90 DAYS OF PROBATIONARY EMPLOYMENT AS AN APPRENTICE iN SUCH AN APPRENTICESHIP PROGRAM, WHO IS NOT iNDiViDUALLY REGISTERED iN THE PROGRAM, BUT WHO Page 44 HAS BEEN CERTIFIED BY THE BUREAU OF APPRENTICESHIP AND TRAiNiNG OR A STATE APPRENTICESHIP COMPANY (WHERE APPROPRIATE) TO BE ELIGIBLE FOR PROBATIONARY EMPLOYMENT AS AN APPRENTICE. THE ALLOWABLE RATIO OF APPRENTICES TO JOURNEYMEN ON THE JOB SITE iN ANY CRAFT CLASSIFICATION SHALL NOT BE GREATER THAN THE RATIO PERMITTED TO THE CONTRACTOR AS TO THE ENTIRE WORK FORCE UNDER THE REGISTERED PROGRAM. ANY WORKER LISTED ON A PAYROLL AT AN APPRENTICE WAGE RATE, WHO IS NOT REGISTERED OR OTHERWISE EMPLOYED AS STATED ABOVE, SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE ON THE WAGE DETERMINATION FOR THE CLASSIFICATION OF WORK ACTUALLY PER-FORMED. IN ADDITION, ANY APPRENTICE PERFORMING WORK ON THE JOB SITE iN EXCESS OF THE RATIO PERMITTED UNDER THE REGISTERED PROGRAM SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMiNATiON FOR THE WORK ACTUALLY PERFORMED. WHERE A CONTRACTOR IS PERFORMING CONSTRUCTION ON A PROJECT iN A LOCALITY OTHER THAN THAT IN WHICH ITS PROGRAM IS REGISTERED, THE RATIOS AND WAGE RATES (EXPRESSED IN PERCENTAGES OF THE JOURNEYMAN'S HOURLY RATE) SPECiFiED IN THE CONTRACTOR'S OR SUBCONTRACTOR'S REGISTERED PROGRAM SHALL BE OBSERVED. EVERY APPRENTICE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED iN THE REGISTERED PROGRAM FOR THE APPRENTICE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT-AGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICABLE WAGE DETERMINATION. APPRENTICES SHALL BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE APPRENTICESHIP PROGRAM. IF THE APPRENTICESHIP PROGRAM DOES NOT SPECIFY FRINGE BENEFITS, APPRENTICES MUST BE PAID THE FULL AMOUNT OF FRINGE BENEFITS LISTED ON THE WAGE DETERMINATION FOR THE APPLICABLE CLASSIFICATION. IF THE ADMINISTRATOR DETERMINES THAT A DIFFERENT PRACTICE PREVAILS FOR THE APPLICABLE APPRENTICE CLASSIFICATION, FRINGE BENEFITS SHALL BE PAID IN ACCORDANCE WITH THAT DETERMINATION. IN THE EVENT THE BUREAU OF APPRENTICESHIP AND TRAINING, OR A STATE APPRENTICESHIP COMPANY RECOGNIZED BY THE BUREAU, WITHDRAWS APPROVAL OF AN APPRENTICESHIP PROGRAM, THE CON-TRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE APPRENTICES AT LESS THAN THE APPLICABLE PREDETERMINED RATE FOR THE WORK PERFORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED. Page 45 (b) TRAINEES. EXCEPT AS PROVIDED 1N 29 C.F.R. § 5.16, TRAINEES WILL NOT BE PERMITTED TO WORK AT LESS THAN THE PREDETERMINED RATE FOR THE WORK PERFORMED UNLESS THEY ARE EMPLOYED PURSUANT TO AND INDIVIDUALLY REGISTERED iN A PROGRAM WHICH HAS RECEIVED PRIOR APPROVAL, EVIDENCED BY FORMAL CERTIFICATION BY THE U. S. DEPARTMENT OF LABOR, EMPLOYMENT AND TRAINING ADMiNiSTRATiON. THE RATIO OF TRAINEES TO JOURNEYMEN ON THE JOB SITE SHALL NOT BE GREATER THAN PERMITTED UNDER THE PLAN APPROVED BY THE EMPLOYMENT AND TRAINING ADMiNiSTRATiON. EVERY TRAINEE MUST BE PAID AT NOT LESS THAN THE RATE SPECIFIED IN THE APPROVED PROGRAM FOR THE TRAiNEE'S LEVEL OF PROGRESS, EXPRESSED AS A PERCENT-AGE OF THE JOURNEYMAN HOURLY RATE SPECIFIED IN THE APPLICABLE WAGE DETERMiNATiON. TRAINEES SHALL BE PAID FRINGE BENEFITS IN ACCORDANCE WITH THE PROVISIONS OF THE TRAINEE PROGRAM. IF THE TRAINEE PROGRAM DOES NOT MENTION FRINGE BENEFITS, TRAINEES SHALL BE PAID THE FULL AMOUNT OF FRINGE BENEFITS LISTED ON THE WAGE DETERMiNATiON UNLESS THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION DETERMINES THAT THERE IS AN APPRENTICESHIP PROGRAM ASSOCIATED WITH THE CORRESPONDING JOURNEYMAN WAGE RATE ON THE WAGE DETERMiNATiON, THAT PROVIDES FOR LESS THAN FULL FRINGE BENEFITS FOR APPRENTICES. ANY EMPLOYEE LISTED ON THE PAYROLL AT A TRAINEE RATE WHO IS NOT REGISTERED AND PARTICIPATING iN A TRAINING PLAN APPROVED BY THE EMPLOYMENT AND TRAINING ADMiNiSTRATiON SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMiNATiON FOR THE CLASSIFICATION OF WORK ACTUALLY PERFORMED. IN ADDITION, ANY TRAINEE PERFORMING WORK ON THE JOB SITE iN EXCESS OF THE RATIO PERMITTED UNDER THE REGISTERED PROGRAM SHALL BE PAID NOT LESS THAN THE APPLICABLE WAGE RATE ON THE WAGE DETERMiNATiON FOR THE WORK ACTUALLY PERFORMED. iN THE EVENT THE EMPLOYMENT AND TRAINING ADMiNiSTRATiON WITHDRAWS APPROVAL OF A TRAINING PROGRAM, THE CONTRACTOR WILL NO LONGER BE PERMITTED TO UTILIZE TRAINEES AT LESS THAN THE APPLICABLE PREDETERMINED RATE FOR THE WORK PER-FORMED UNTIL AN ACCEPTABLE PROGRAM IS APPROVED. (c) EQUAL EMPLOYMENT OPPORTUNITY. THE UTILIZATION OF APPRENTICES, TRAINEES, AND JOURNEYMEN UNDER 29 C.F.R. PART 5 SHALL BE IN CONFORMITY WITH THE Page 46 EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS OF EXECUTIVE ORDER 11246, AS AMENDED, AND 29 C.F.R. PART 30. 5. COMPLIANCE WITH COPELAND ACT REQUIREMENTS. THE CON-TRACTOR SHALL COMPLY WITH THE REQUIREMENTS OF 29 C.F.R. PART 3, WHICH ARE INCORPORATED HEREIN BY REFERENCE. 6. CONTRACT TERMINATION: DEBARMENT. A BREACH OF THE CON-TRACT CLAUSES IN 29 C.F.R. § 5.5 MAY BE GROUNDS FOR TERMINATION OF THE CONTRACT, AND FOR DEBARMENT AS A CONTRACTOR AND A SUBCONTRACTOR AS PROVIDED IN 29 C.F.R. § 5.12. 7. COMPLIANCE WITH DAVIS-BACON AND RELATED ACT REQUIREMENTS. ALL RULINGS AND INTERPRETATIONS OF THE DAVIS-BACON AND RELATED ACTS CONTAINED iN 29 C.F.R. PARTS 1, 3, AND 5 ARE INCORPORATED HEREIN BY REFERENCE. 8. DISPUTES CONCERNING LABOR STANDARDS. DISPUTES ARISING OUT OF THE LABOR STANDARDS PROVISIONS OF THIS CONTRACT SHALL NOT BE SUBJECT TO THE GENERAL DISPUTES CLAUSE OF THIS CONTRACT. SUCH DISPUTES SHALL BE RESOLVED iN ACCORDANCE WITH THE PROCEDURES OF THE DEPARTMENT OF LABOR SET FORTH iN 29 C.F.R. PARTS 5, 6, AND 7. DISPUTES WiTHiN THE MEANING OF THIS CLAUSE INCLUDE DISPUTES BETWEEN THE CONTRACTOR (OR ANY OF iTS SUBCONTRACTORS) AND THE CONTRACTING COMPANY, THE U. S. DEPARTMENT OF LABOR, OR THE EMPLOYEES OR THEIR REPRESENTATIVES. 9. (a) CERTIFICATION OF ELIGIBILITY. BY ENTERING INTO THIS AGREEMENT OR A THIRD PARTY CONTRACT FINANCED UNDER THIS AGREEMENT, THE CONTRACTOR CERTIFIES THAT NEITHER IT (NOR HE NOR SHE) NOR ANY PERSON OR FIRM THAT HAS AN iNTEREST iN THE CON-TRACTOR'S FIRM IS A PERSON OR FIRM iNELiGiBLE TO BE AWARDED GOVERNMENT CONTRACTS BY VIRTUE OF SECTION 3 (a) OF THE DAVIS-BACON ACT OR 29 C.F.R. § 5.12(a) (1). (b) NO PART OF THIS CONTRACT SHALL BE SUBCONTRACT-ED TO ANY PERSON OR FIRM iNELiGiBLE FOR AWARD OF A GOVERNMENT CONTRACT BY VIRTUE OF SECTION 3(a) OF THE DAVIS-BACON ACT OR 29 C.F.R. § 5.12(a) (1). Page 47 (c) THE PENALTY FOR MAKING FALSE STATEMENTS IS PRESCRIBED iN THE U.S. CRiMiNAL CODE, 18 U.S.C. § 1001. 10. OVERTIME REQUIREMENTS. NO CONTRACTOR OR SUBCONTRACTOR CONTRACTING FOR ANY PART OF THE CONTRACT WORK WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL REQUIRE OR PERMIT ANY SUCH LABORER OR MECHANIC iN ANY WORK WEEK IN WHICH HE OR SHE IS EMPLOYED ON SUCH WORK TO WORK iN EXCESS OF FORTY HOURS iN SUCH WORK WEEK UNLESS SUCH LABORER OR MECHANIC RECEIVES COMPENSATION AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE BASIC RATE OF PAY FOR ALL HOURS WORKED iN EXCESS OF FORTY HOURS IN SUCH WORK WEEK. 11. VIOLATION; LIABILITY FOR UNPAID WAGES; LIQUIDATED DAMAGES. IN THE EVENT OF ANY VIOLATION OF THE REQUIREMENTS OF 29 C.F.R. § 5.5(b) (1), THE CONTRACTOR AND ANY SUBCONTRACTOR RESPONSIBLE THERE-FOR SHALL BE LIABLE FOR THE UNPAID WAGES. IN ADDITION, SUCH CONTRACTOR AND SUBCONTRACTOR SHALL BE LIABLE TO THE UNITED STATES (1N THE CASE OF WORK DONE UNDER CONTRACT FOR THE DISTRICT OF COLUMBIA OR A TERRITORY, TO SUCH DiSTRiCT OR TO SUCH TERRITORY) FOR LiQUiDATED DAMAGES. SUCH LIQUIDATED DAMAGES SHALL BE COMPUTED WITH RESPECT TO EACH iNDiViDUAL LABORER OR MECHANIC, INCLUDING WATCHMEN AND GUARDS, EMPLOYED iN VIOLATION OF 29 C.F.R. § 5.5(b) (1) 1N THE SUM OF $10 FOR EACH CALENDAR DAY ON WHICH SUCH INDIVIDUAL WAS REQUIRED OR PERMITTED TO WORK IN EXCESS OF THE STANDARD WORK WEEK OF FORTY HOURS WITHOUT PAYMENT OF THE OVERTIME WAGES REQUIRED BY 29 C.F.R. § 5.5(b) (1). 12. WITHHOLDING FOR UNPAID WAGES AND LIQUIDATED DAMAGES. UMTA OR THE COMPANY SHALL UPON ITS OWN ACTION OR UPON WRITTEN REQUEST OF AN AUTHORIZED REPRESENTATIVE OF THE DEPARTMENT OF LABOR WITHHOLD OR CAUSE TO BE WITHHELD, FROM ANY MONEYS PAYABLE ON AC-COUNT OF WORK PERFORMED BY THE CONTRACTOR OR SUBCONTRACTOR UNDER ANY SUCH CON-TRACT OR ANY OTHER FEDERAL CONTRACT WITH THE SAME PRIME CON-TRACTOR, OR ANY OTHER FEDERALLY-ASSISTED CONTRACT SUBJECT TO THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, WHICH IS HELD BY THE SAME PRIME CONTRACTOR, SUCH SUMS AS MAY BE DETERMINED TO BE NECESSARY TO SATISFY ANY LIABILITIES OF SUCH Page 48 CONTRACTOR OR SUBCONTRACTOR FOR UNPAID WAGES AND LIQUIDATED DAMAGES AS PROVIDED IN THE CLAUSE SET FORTH AT 29 C.F.R. § 5.5(b) (2). 13. SUBCONTRACTS. THE CONTRACTOR OR SUBCONTRACTOR SHALL INSERT iN ANY SUBCONTRACTS THE CLAUSES SET FORTH IN SUBSECTIONS 116.a.(1) THROUGH (12) OF PART ii OF THIS AGREEMENT AND ALSO A CLAUSE REQUiRiNG THE SUBCONTRACTORS TO iNCLUDE THESE CLAUSES IN ANY LOWER TIER SUBCONTRACTS. THE PRIME CONTRACTOR SHALL BE RESPONSIBLE FOR COMPLIANCE BY ANY SUBCONTRACTOR OR LOWER TIER SUBCONTRACTOR WITH THE CLAUSES SET FORTH iN SUBSECTIONS l16.a.(1) THROUGH 116.a.(12) OF PART ii OF THE CITY'S AGREEMENT WITH THE GOVERNMENT. Non-construction Contracts. Pursuant to the regulations set forth at 29 C.F.R. Part 5, the following provisions shall be incorporated in all federally-assisted non-construction contracts of $2,500 let by the Company in carrying om the Project: NONCONSTRUCTION CONTRACTS. THE REQUIREMENTS OF THE CLAUSES CONTAINED iN 29 C.F.R. § 5.5(b) OR SUBSECTIONS l16.a.(10) THROUGH 116.a.(13) OF PART ii OF THIS AGREEMENT ARE APPLICABLE TO ANY CONTRACT SUBJECT TO THE OVERTIME PROVISIONS OF THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT AND NOT TO ANY OF THE OTHER STATUTES CITED IN 29 C.F.R. § 5.1. THE CON-TRACTOR OR SUBCONTRACTOR SHALL MAiNTAiN PAYROLLS AND BASIC PAYROLL RECORDS DURING THE COURSE OF THE WORK AND SHALL PRESERVE THEM FOR A PERIOD OF THREE YEARS FROM THE COMPLETION OF THE CONTRACT FOR ALL LABORERS AND MECHANICS, INCLUDING GUARDS AND WATCHMEN, WORKING ON THE CONTRACT. SUCH RECORDS SHALL CONTAIN THE NAME AND ADDRESS OF EACH SUCH EMPLOYEE, SOCIAL SECURITY NUDBER, CORRECT CLASSIFICATIONS, HOURLY RATES OF WAGES PAID, DALLY AND WEEKLY NUDBER OF HOURS WORKED, DEDUCTIONS MADE, AND ACTUAL WAGES PAID. THE RECORDS TO BE MAINTAINED UNDER THIS CLAUSE SHALL BE MADE AVAILABLE BY THE CONTRACTOR OR SUB-CONTRACTOR FOR INSPECTION, COPYING, OR TRANSCRIPTION BY AUTHORIZED REPRESENTATIVES OF UMTA, DOT, OR THE DEPARTMENT OF LABOR, AND THE CONTRACTOR OR SUBCONTRACTOR WILL PERMIT SUCH REPRESENTATIVES TO INTERVIEW EMPLOYEES DURING WORKING HOURS ON THE JOB. Page 49 W. Environmental, Resource, Energy Protection, and Conservation Requirements. 1. The National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321 et seq.; Section 14 of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. app. §§ 1601 et seq.; the Council on Environmental Quality regulations, 40 C.F.R. Part 1500 et seq.; and the FHWA/UMTA regulation, "Environmental Impact and Related Procedures," 23 C.F.R. Part 771, as amended, are applicable to the Project. 2. The Company shall comply with the provisions of the Clean Air Act, as amended, 42 U.S.C. §§ 1857 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251 et seq.; and implementing regulations, in the facilities that are involved in the Project for which Federal assistance is given. The Company shall ensure that the facilities under ownership, lease or super-vision, whether directly or under contract, that will be utilized in the accomplishment of the Project are not listed on the Environ-mental Protection Company (EPA) List of Violating Facilities. Con-tracts, subcontracts, and sub-grants of amounts in excess of $100,000 shall contain a pro-vision requiring compliance with all applicable standards, orders, or requirements issued pursuant to Federal statute or regulation. The Company and any third party contractor thereof shall be responsible for reporting any violations to City and UMTA and to the EPA Assistant Administrator for Enforcement. In addition, the Company shall notify City and UMTA of the receipt of any communication from the Director of the EPA Office of Federal Activities indicating that a facility to be utilized in the Project is under consideration for listing by EPA. 3. No facilities or equipment shall be acquired, construct-ed, or improved as a part of the Project unless the Company obtains satisfactory assurances that they are (or will be) designed and equipped to limit air pollution as provided in accordance with the following EPA regulations: "Control of Air Pollution from Motor Vehicles and Motor Vehicle Engines," 40 C.F.R. Part 85; "Control of Air Pollution from New Motor Vehicles and New Motor Vehicle Engines; Test Procedures for Light-Duty Vehicles and Light- Duty Trucks and Selective Enforcement Auditing of New Light-Duty Vehicles, Light- Duty Trucks and Heavy-Duty Engines," 40 C.F.R. Part 86; and "Fuel Economy of Motor Vehicles," 40 C.F.R. Part 600; in accordance with applicable federally-approved State Implementation Plan(s) (in particular, the Transportation Control Measures); and in accordance with appropriate UMTA directives and all other applicable standards. 4. No publicly owned land from a park, recreation area, or wildlife or waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance may be used for the Project unless specific findings required under 49 U.S.C. § 303 are made by the Department of Transportation. Page 50 5. The Company shall assist the Government (UMTA) to comply with section 106 of the National Historic Preservation Act involving historic and archaeological preservation by: (1) Consulting the State Historic Preservation Officer on the conduct of investigations, in accordance with Advisory Council on Historic Preservation regulations, "Protection of Historic and Cultural Properties," 36 C.F.R. Part 800, to identify properties and resources listed in or eligible for inclusion in the National Register of Historic Places that may be affected by the Project, and notifying the Government (UMTA) of the existence of any such properties; and (2) Complying with all Federal requirements to avoid or mitigate adverse effects upon such properties. 6. The Company and its third party contractors shall comply with mandatory standards and policies relating to energy efficiency that are contained in applicable State energy conservation plans issued in compliance with the Energy Policy and Conservation Act, 42 U.S.C. §§ 6321 et seq. 7. Should the proposed Project cause adverse environmental effects, the Company shall take all reasonable steps to minimize such effects pursuant to 49 U.S.C. app. § 1610, other applicable statutes, and the procedures set forth in 23 C.F.R. Part 771. The Company shall undertake all environmental mitigation measures that may be identified as commitments in applicable environmental documents (such as environmental assessments, environmental impact statements, memoranda of agreements, and statements required by 49 U.S.C. § 303) and with any conditions imposed by the Government as part of a finding of no significant impact or a record of decision; all such mitigation measures are incorporated in and made part of this Agreement by reference. In the event that some or all mitigation measures are deferred, once such measures are agreed upon by the Government, City and the Company, those mitigation methods subsequently determined will be incorporated into this Agreement. Such mitigation measures may not be modified or with-drawn without the express written approval of the Government. 8. In carrying out the Project, the Company shall make all appropriate efforts to foster the use of fly ash, substantially in compliance with EPA regulations "Guideline for Federal Procurement of Cement and Concrete Containing Fly Ash," 40 C.F.R. Part 249. Should the Company make a determination that the use of fly ash is inappropriate in a particular procurement of cement or concrete, the Company shall provide UMTA a written justification to support that decision. X. MISCELLANEOUS 1. Company shall comply with Department of Transportation regulations, "Uniform Relocation and Real Property Acquisition Regulation for Federal and Federally Assisted Programs," 49 C.F.R. Part 24. Page 51 2. Company shall comply with the flood insurance purchase requirements of section 102(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. § 4012(a), with respect to any construction or acquisition Project. 3. Company shall comply with the bus testing requirements as set forth in section 12(h) of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. app. § 1608(h), and any implementing regulations that may be issued thereunder. 4. Company shall comply with any regulations that may be issued to implement section 12(j) of the Urban Mass Transportation Act, of 1964, as amended, 49 U.S.C. app. § 16080). 5. If any invention, improvement, or discovery of the Company or any of its third party contractors is conceived or first actually reduced to practice in the course of or under this Project, which invention, improvement, or discovery may be patentable under the laws of the United States of America or any foreign country, the Company shall immediately notify the Government (UMTA) and pro-vide a detailed report. The rights and responsibilities of the Company, third party contractors, the City and the Government with respect to such invention, improvement, or discovery will be determined in accordance with applicable Federal laws, regulations, policies, and any waiver thereof. 6. Rights in Data. a. The term "subject data" as used herein means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under this Agreement. The term includes graphic or pictorial delineations in media such as drawings or photographs; text in specifications or related performance or design-type documents; machine forms such as punched cards, magnetic tape, or computer memory printouts; and information retained in computer memory. Examples include, but are not limited to: computer software, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information. The term does not include financial reports, cost analyses, and similar information incidental to Project administration. b. The following restrictions apply to all subject data first produced in the performance of this Agreement: (1) Except for its own internal use, the Company may not publish or reproduce such data in whole or in part, or in any manner or form, nor may the Company authorize others to do so, without the written consent of the City and the Government, until such time as the Government may have either released or approved the release of such data to the public; this restriction on publication, however, does not apply to Agreements with academic institutions. Page 52 (2) As authorized by 49 C.F.R. Part 18.34, the City and the Government (UMTA) reserve a royalty-free, non-exclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes: (a) Any work developed under a grant, cooperative agreement, sub-grant, sub-agreement, or third party contract, irrespective of whether or not a copyright has been obtained; and (b) Any fights of copyright to which a Company, sub-recipient, or a third party contractor purchases ownership with Federal assistance. c. Company understands and agrees that, in addition to the rights set forth in Subsection 119.b.(2) of Part II of this Agreement, UMTA may make available to any UMTA recipient, sub-grantee, sub-recipient, third party contractor, or third party subcontractor, either UMTA's license in the copyright to the "subject data" derived under this Agreement or a copy of the "subject data" first produced under this Agreement. d. The City and Company shall indemnify, save and hold harmless the Government, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, resulting from any willful or intentional violation by the Company of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, use, or disposition of any data furnished under this Agreement. e. Nothing contained in this clause shall imply a license to the City or Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the City or Government under any patent. f. Subsections b., c. and d. of Part II of this Section are not applicable to material furnished to the Company by the U. S. Government and incorporated in the work furnished under the Agreement; provided that such incorporated material is identified by the Company at the time of delivery of such work. g. In the event that the Project, which is the subject of this Agreement, is not completed, for any reason whatsoever, all data developed under that Project shall become subject data as defined in Subsection 119.a. of Part II of the City's Agreement with the Government- and shall be delivered as the Government may direct. h. The requirements of Subsections a. through g. of this Section shall be included in all third party contracts of the Company under this Project. 7. Privacy. Should the Company, or any or its third party contractors, sub- grantees, sub-recipients or their employees administer any system of records on behalf of the Federal Government, the Privacy Act of 1974, 5 U.S.C. § 552a (the Act), imposes information restrictions on the party administering the system of records. Page 53 a. For purposes of the Privacy Act, when the Agreement involves the operation of a system of records on individuals to accomplish a Government function, the Company and any third party contractors, sub-grantees, sub-recipients and their employees involved therein are considered to be Government employees with respect to the Government function. The requirements of the Act, including the civil and criminal penalties for violations of the Act, apply to those individuals involved. Failure to c’1؆òõˆ–‹žß‹—ûËXvŒc¿™ß?—šÖ¾•‹Ãˆy˜ƒ_’Þ”šAŒŸžÌ—”ñô„u /‹Ÿx—À½‹>ò°?òž–/ž‹—‘ÑìÕÒõܧnŽ_ZŽ›ò•š‚žîÅòAòËßÞ»Œß_øßß Aýr÷® C¦¯šˆž‹&7‘o7¥Þ~Ö÷ŒŒð°"x„ÙÛŒ Ɖž˜ÛÒ2 ˆWíJñÎ6›‘FŒßø8Ê?”ÂøÙù6 Ÿ.ÿœ¾?– ´‹–ŽÕ,fÌÐœ6N‰Ãî@<•ß“ž†Ñ0Ï¢‘Æ#rÏËÁ‡KŒÖÌŠ †ÿ´Ù «ŸœÐ‡™ŽO„¨fß ƒµœO™ßƒGfõœ• ˜ ·Ú´ O‚‘ ¾À³ÆéØÞ¼ÃUŸÓ ”èËÙãg€ªðžr '‚oβ1œû×f$‘<Ë?äý¼„±¶ô‹’«b:TãRë¦9,¥À•Å…ÏŸ…sXÀ-¤¬’e,)Š/¦/"°R*CLÔÿ/ŸûrràÎAÙ‘e7†4…űc½n|\B|,ÒÇŸä„ ”dµg¥Q·¶¥± râö/Úϵž„¿ÁÀÅßùÓ-z†SžÐ°c®˜éˆ~ –›MPê}ÑàšÏ¶§&¾V˜©Í³ß·Î6·Î.7dbêéÒãS¦%„ä~T\^ÊËü,Û²M‡Aj'·0 ¦ ɧÄ;=Ü°ƒ>9¥£[a)'t ÷§aÍYxòI$8g{Kª~u{ Ü;Z,5X:(yöÆ2üsl( ÂEaRc5ñÍ°I‚c»"qj"ŽlazymX«îઢ¥;1Œg ë'Æ (|cY±«þ)|Lwkè´:/7c8j2c-äqî'c’hààçì ßw ¼ê¥¦Ely7 Yn¸I^O ‰,T«Ç[8wú/Î(H31c0geAáI²&à>ü‚¢qÏREhu0Darséqc,#7±kä~ô&h k£8íË-fÂUô(ì!i`&‘eWt1pb1~ wxvtcg+6d2+-'y1a=Z2}”0Dl.¤jJ:15-Æ+ˆÞ ù?Ó5$ö òâÀ%á‰|ÁbŽ×Ä.?Žü+Ik1ìxsý°F"êÇ1Çü $¥ê ï5Ž©uhL?,ð_o”, h¢.pihl,³uoe³t2§¹-]MÚ,~©u s ìóçÿ|ª¨@|dì¯â]9ö#ø¼ç?÷å2|t}F%EÞÕ`™Ô`7–äÛ æ—ŒÌÉJ¤yˆåÐþ9~ÅÓN@É擖цBF¼á ËÝÉM~ûçEVcÅö¬fM•uÌÛr,1‚/"˜š‹|ËŠžä‰õÁåO»&Hª…лè´Øš!þ™Œ¼1²—”Þ›hþåÐßV†š @·~ ‰à°8€—"ßÖz£†D— ´Å–¡ßžò霎“žÞŽ ª˜ù››ß‹Í™– ÿ–±›–ɪ¶‘Ò‘óõòõçÑ!Ï8®Ê°Ršß¯m£_B¥7†¡òäò𮜻ÏÛk÷ßžÔüÆŒ¾'ÑÑE–¶ –Œ ¢¹ÃØ~Aþ› o’q-Šù®§ÒË*uxŽ_÷ɾ¦ú› kÕ £~`4™ýØß¾é–ÃOu îêÞœ]Š* Ba|õ€Ü;"™$vÛ@<©”@wÿ€4ÄÛ÷bDû)0{m. añHßk¡Gßgúroae¤Ç{<1ïcda@+*-Êwov±Òxgía+*‚°$7d}a7(-Ÿž‹–ÄøÅvc³1‹—šß™–‘žQNÈêfñŸ &µÆÌðªÎsùYOGRãÎÄÅÒŽIó&4*¥b›D t4>€Vq+%™^¼íë T †9”‹#¾Ë .úÉ+ÁÐßÃœ2¥¦Ú‹³•ÚŠó®‹2»ù‹Ã ¥œ©ß c”[×i6gG&¤(U÷V@¦O¨DûDxñs5û·ªEû¿o ñaÎ< é¢!X^x}*xPy".&-Œä‘kJMH¯f I9fÆ5M7Id°¤uaO¡÷`kêX<r¦’DiaëS}ÏÎÔtq4ÁNa±Á\}cX¯€]fð'B2u4wð}zäNj7ã@ëOþs‰ièí%o=ò(g{uá`~e·y2±ßÓ¯8|täN~®À¡¼6êK“JPNj'Ô½k êì±W&6ßCÉB¶V<ž,á1EXqâóÑ—v^ùü/ik7 ' ð@C \MNö.ÿ¦¦2õ ¾0*ÉÍý)ÇÎJ—æ3ÀDô€7õà Vx >)É[ܧҋ MȇU®¸pű². ©àB¼¢áD¥å•xƒ ቨKüò ¤s‹±‡þ=?ؘ×Ouôð?®â¸wÍg…÷ýv*ùôšýß2Õ»4Ê‚S Íå)ž…ùh C;îíØÿ²L¸Õù«/ûY±Hàc×kÿ¿‰¾¸’›±… »÷#ß ½¬¹§’§A+z*²Ç™¦_-š^¡œ²ë àÐ<¸ÿŽ*‘$ÝŽ¸Ú!81 ©Õ6“2¾…/’¾4ž™×Ù…ák³?»k ¼É––‹ý‚šÓBµ˜¾Ï GÜl։υ‘(}‰•>%»_Z’ÍÆš…Í(©.›®ø…jØ‚˜ÕƆ’µÙË“¾®MKí©‘»V×î·ß–¡ÈÎþ´ŽxËžøÞnÒ yÐÏJ7žœºß¾ ~Š8w!•‹ŒÝ,Õ_rˆ}—ž›&ÝßÝ'ßÓšk¸‰š1¾Ra“‹ßn/›òdœšß¼jÐhƒËõâ™—Ë…žÝž‘Û7À5jŽ_«×rÔ˜ØÍÛ•–ß¿¶†ß0¼šš› ˜òŒAðݳÅކĶô6ÚÀ’}ÃU¶’⺔c¾D* õ@Rß A_ˤ…;¦€Ï'ËÍÕ$ÙÌÁš žÛž@0ž‘¤kpè|ØØŸÒÛUJœ ßT|g"ß»ŒÔ¾É„Òž(š“¹–‘“‘×’‡÷uˆ }ÚÜß°Š‡&æwÙOêâ]TÇݸ‘ ™BÝËBÕ‰³ŸŸÃÈ_ÙÙÖØ¿ÒÓ ÛØ“/*{òÖΪ·Š€' ë^ýAÄ 0A†HïÍÓ›y‡Z!÷lã·é”~ÚßkÒØÖŒh‰ z›_bˆ¼b‰tñŠˆ—šßÚò‹ß šªŠ–}$›Úr0‡š ‹–‘OÆÊßy¦ ï„_ª#Þ3¥dŽŒã¤…žŒ¬Úš—”‘ãþä‹Ý˜-òµÅëÉ ÐßžŒ_ Ž‘›ŠãÑ/ÏÆß ™öp Ñß ôûßP3çɆ!cµu°á–;1‰úÙùJÒˆôþކƞžšÒŒœÚ“DzÀâ2(ßÕŸ†˜†å9ÿ;ƒâµžÙ…šßÑ_’’ßÎÖÿeȼs÷ “‰ÿ››ƒÖœÞŽ“šßÅ»1Ž/–°¼ÖM— Ùœ™—˜ï‚'œV™Þ ¶ ‹¬³„Š,‰Õ^BYg2ˆ[HŽlã†ææ·žÅÊŒâ‡<šòjâ~g/Ýåš~*‘-ªrc[ÐÏ–í]"g6ÚKmâ Y²ßÄ¿å7ÔÞ–ÏäPÐ]+<¦8j ãC¦·ñ ~µ›4Ã(DÄQ‘³{;¥ƒ¡ôÓ~t ôÕ7W¨å}]™ôFkãÅ;¼üycùߦI-ZÎD MóªÄÛè^Ì×ǧÀ?+k>:,3Q¥¤4k"Ñ|ÁÀñ=ä¹×HÎ,acP#MŽˆ?~öàtakd%À4'6pî¥wNªéEpÔ`6B`,óD]eç~`ã²6ÛO6Ml,õ `7 Òá¯~lk)}g£xt"8yj`®bµ¢´øÞ5(½z~oð¨y¥ 6Uydxuæ/íæüCëîh_Rõ¬ÉsmhMçaM·5jIø Ï R5ÉbdCoûÁllgÛ¨ßÀÍÚÍ]‘<1ËŒ²ËÕÏ:R©á@ŒÌ,+ÏàtH"uäánÇüš–ߌ–˜‘bX!îu½+ 6ð~ao(Oú|äh–6þ SÅÜû~8ÄþU£#õbiã¢ö*c%àjƒs¯X¡ c8¦t~ˆ¦TÑÈ>O”þ¦^ñVõ'æ@0”j4ž€%Q 4ÂTºÓ;ÐV…é Òzú71•É ³=:r!:Øñ…âV÷sõ焬РvYúùËÓ 4aóÖ¨¾³ë¡½&qß<œŸ,߬º¼¹: –xÃÛ3« ¶1-ý¤¹´‡ôç\{?Âæ61ÀXƒS £ÙE¶hˆ ]7½#ÝyGdº”‹ð‚ÑfÚlþ.xlÚc‡0B$°™°uA'Áé|¥1>¸iÁ ^³w£+ïÈ,¤TÛE´^'Ø\äˆ,ˆÓoY.E&•BMD’Y DÖ3GÅyi|A(¹iÍIj‘JýŽ4¢MÎ[ÍGg ×,•!*hYÀh,Z™¢åsQÆo -è Ë@ Ui1Q·ËŽH Ë EXHIBIT "A" City of Denton - Transit Budget (Fixed Costs) Transportation Management Services Cost Category Year 1 Year 2 Year 3 Year 4 Year 5 1. Management, Administrative, and $135,058 $180,473 $183,941 $190,379 $197,042 Supervisory Wages and Benefits: These costs provide for the salary and connected fringe benefits of the dispatchers, supervisors, and clerical employees associated with the provision of transit services. 2. Office Supplies, Materials and Equipment: $4,800 $4,968 $5,142 $5,322 $5,508 This line item will pay for expenses associated with the provision of needed office supplies for the collective administrative functions for transit operations. 3. Services: This line item will provide for $26,200 $27,117 $28,066 $29,048 $30,065 payroll service, internal audit functions, internal legal assistance, marketing efforts to include special campaigns outside those provided by the City of Denton, and printing cost associated to the management and operation of transit services. 4. Insurance Premiums & Deductibles: Will $86,480 $90,804 $95,344 $100,111 $105,117 provide for the specified and required limits of insurance pertaining to the operation and management of the transit system. This will include all premiums for General Liability, Property Damage, auto Liability, Worker's Compensation for administrative personnel and Professional Error & Omissions coverage. 5. Leases and Rentals: Will pay for rented $1,200 $1,242 $1,285 $1,330 $1,377 items not provided for under the capital grant program. Since it is assumed that most of the computer hardware, software and supplementary office equipment such as phones, copier, printer and fax machine will be provided through the normal capital grant process, we are placing a limited amount of rental/lease expense into the fixed fee for transit management and operation. 6. Other Fixed Expenses: Will include all $2,500 $2,588 $2,678 $2,772 $2,869 costs associated to providing travel and dues membership of the Local Operations Manager. Page 56 7. One-Time Start-Up Expenses: These costs $45,140 $0 $0 $0 $0 will pay for the transition expenses associated to the start of the new contract. These will include relocation assistance for the Local Operations Manager, training assistance, and other ancillary services associated to the transition of contractors. 8. Management Fee: Covers the wages and $136,830 $117,840 $122,400 $127,320 $132,720 fringe benefits for the Local Operations Manager, corporate support, company overhead and profit. TotalFixed Costs: $438,208 $425,032 $438,856 $456,282 $474,698 S:\Our Documents\Miscella~eous\02\Link Budget- Exhibit A.doc Page 57 EXHIBIT "B" City of Denton - Transit Budget (Variable Costs) Transportation Management Services Variable Costs Year 1 Year 2 Year 3 Year 4 Year 5 1. Driver Wages & Benefits $425,755 $443,523 $447,403 $463,124 $479,395 2. Training $11,472 $12,793 $13,240 $13,704 $14,183 3. Uniforms $2,550 $2,846 $2,946 $3,049 $3,156 4. DOT Physicals and Drug Screens $2,550 $2,857 $2,857 $2,957 $3,060 5. Maintenance Services $500 $518 $536 $554 $574 6. Miscellaneous Materials & Supplies $15,356 $16,052 $16,213 $16,780 $17,368 Total Variable Costs $458,183 $478,589 $483,195 $500,168 $517,736 Page 58 This page left blank intemionally. Agenda 02-013 04/16/02 #15 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET April 16, 2002 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349- 8487 Kathy DuBose, Fiscal and Municipal Services~ SUBJECT An Ordinance accepting competitive bids and awarding a contract for the purchase of Precast Manholes and Pads; and providing for the expenditure of funds therefore; and providing an effective date (Bid 2825- Annual Price Agreemem for Precast Manholes and Pads awarded to the lowest responsible bidder, Brooks Products, as listed in the estimated amount of $82,795). BID INFORMATION This bid is for the annual contract to supply precast manholes and concrete switchgear and transformer pads. These items will be milized by DeNon Municipal Electric in the maimenance and construction of the electric distribution system. RECOMMENDATION We recommend this bid be awarded to the lowest responsible bidder, Brooks Products as listed on the attached tabulation sheet. PRINCIPAL PLACE OF BUSINESS Brooks Products Mansfield, TX ESTIMATED SCHEDULE OF PROJECT Listed items will be ordered as needed and can be delivered within 10 days of receipt of an order. FISCAL INFORMATION As items are ordered, they will be charged to the appropriate work order or budget account number. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachmem 1: Tabulation Sheet 1-AIS-Bid 2825 Precast Manholes Attachment 1 BID#: 2825 Date: 3/21/02 ANNUAL PRICE AGREEMENT FOR PRECAST MANHOLES & PADS Principle Place of Business: Manfield, TX Milwaukee, WI 1 4 MANHOLE 2-WAY OCTAGONAL 6'- 9"X10'-9"X7' $5,1 50.00 NO BID 2 4 MANHOLE 3-WAY OCTAGONAL 8'- 9"X10'-9"X7' $5,650.00 NO BID 3 4 MANHOLE 4-WAY OCTAGONAL 10'X9"X10'-9"X7' $5,750.00 NO BID 4 2 MANHOLE EXTENSION RING 3' $245.00 NO BID (89030075) 5 2 MANHOLE EXTENSION RING 2' $175.00 NO BID (89030070) 6 2 MANHOLE EXTENSION RING 1" $85.00 NO BID (89030065) 7 2 MANHOLE EXTENSION RING 6" $55.00 NO BID (89030060) 8 1 CAST IRON MANHOLE RING & COVER $550.00 NO BID 9 20 PAD, SWITCHGEAR, PRECAST (28584200) $600.00 NO BID 10 10 PAD, TRANSFORMER 51"X 48" (28584100) $1 75.00 NO BID 1 1 1 PAD, TRANSFORMER 96"X 86" NO BID (28584250) $425.00 12 1 NO BID PAD, TRANSFORMER 114'X 132" $750.00 DELIVERY 10 Days ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF PRECAST MANHOLES AND PADS; PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (BID 2825-ANNUAL PRICE AGREEMENT FOR PRECAST MANHOLES AND PADS AWARDED TO THE LOWEST RESPONSIBLE BIDDER, BROOKS PRODUCTS AS LISTED IN THE ESTIMATED AMOUNT OF $82,795). WHEREAS, the City 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 and City ordinances; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described bids are the lowest responsible bids for the materials, equipment, supplies or services as shown in the "Bid Proposals" submitted therefore; 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. That the numbered items in the following numbered bids for materials, equipment, supplies, or services, shown in the "Bid Proposals" on file in the office of the City Purchasing Agent, are hereby accepted and approved as being the lowest responsible bids for such items: BID NUMBER VENDOR AMOUNT 2825 Brooks Products Exhibit A SECTION 2. That by the acceptance and approval of the above numbered items of the submitted bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, specifications, standards, quantities and for the specified sums contained in the Bid invitations, Bid Proposals, and related documents. SECTION 3. That should the City and persons submitting approved and accepted items and of the submitted bids wish to enter into a formal written agreement as a result of the acceptance, approval, and awarding of the bids, 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, standards, quantities and specified sums contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That by the acceptance and approval of the above numbered items of the submitted bids, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this __ day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 2825 Precast Manholes EXHIBIT "A" BID 2825- PRECAST MANHOLES & PADS Manhole 2-Way Octagonal 6' $5150 Manhole 3-Way Octagonal 8' $5650 Manhole 4-Way Octagonal $5750 Manhole Extension Ring 3' $ 245 Manhole Extension Ring 2' $ 175 Manhole Extension Ring 1' $ 85 Manhole Extension Ring 6" $ 55 Cast Iron Manhole Ring & Cover $ 550 Pad, Switchgear, Precast $ 600 Pad, Transformer 51"X 48" $ 175 Pad, Transformer 96"x 86" $ 425 Pad, Transformer 114"X 132" $ 750 This page left blank intemionally. Agenda 02-013 04/16/02 #16 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET April 16, 2002 Materials Management Questions concerning this acquisition may be directed to Charles Fiedler 349- 8948 Kathy DuBose, Fiscal and Municipal Services SUBJECT An Ordinance authorizing the City Manager to execute a Professional Services Agreement (PSA) with Turner, Collie & Braden, inc., for Engineering Services for Unicom Lake - iH 35 E Ramp Replacement as set forth in the contract; and providing an effective date (PSA # 2812 - Engineering Design of Unicom Lake- iH35E Ramp Replacement awarded to Turner, Collie & Braden, Inc., for a total amount of $126,314). PROFESSIONAL SERVICE AGREEMENT INFORMATION This Professional Services Agreement is for the design of the IH 35 Ramp Replacements for Unicom Lake/Wind River Lane to include removal of the existing southbound entrance and exit ramps on iH35E between Lillian Miller Parkway and State School Road. The Professional Services Procurement Act, Chapter 2254 of the government Code requires the selection of a Professional Service be determined on the basis of demonstrated competence and qualifications to perform the services at a fair and reasonable price. Turner, Collie & Braden, inc., was chosen for this project based upon the ranking criteria of the selection committee and in accordance with RFP 2812 and successful negotiations. RECOMMENDATION It is recommended that this Professional Services Agreement (PSA 2812) to Turner, Collie & Braden, inc., be approved, along with the contract document in the amount of $126,314.00. PRINCIPAL PLACE OF BUSINESS Turner, Collie & Braden, Inc. Dallas, TX 75248 ESTIMATED SCHEDULE OF PROJECT It is anticipated that the Notice to Proceed will be issued on or about April 30, 2002. estimated completion date is November 2002. The Agenda Information Sheet April 16, 2002 Page 2 FISCAL INFORMATION This professional service agreement will be funded from Capital Improvement Program account 35006500. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-Unicom Lake ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WiTH TURNER, COLLIE, & BRADEN, INC. FOR ENGiNEERiNG SERVICES FOR UNICORN LAKE - iH35E RAMP REPLACEMENT AS SET FORTH iN THE CONTRACT; AND PROViDiNG AN EFFECTIVE DATE (PSA 2812 - PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING DESIGN OF UNICORN LAKE- iH35E RAMP REPLACEMENT AWARDED TO TURNER, COLLIE, & BRADEN, iNC. IN THE AMOUNT OF $126,314). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: WHEREAS, The professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, SECTION 1. That the City Manager is hereby authorized to enter into a professional service contract with Turner, Collie & Braden, inc., to provide professional engineering and related services for the Unicorn Lake - iH35E Ramp Replacement, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2002. EULiNE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 2-ORD - PSA 2812- Unicom Lake Ramp Replacement PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the day of ,2002, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Turner, Collie & Braden Inc., with its local office at 17300 Dallas Parkway, Dallas, Texas 75248 and its corporate office at 5757 Woodway, Houston, Texas, 77219-0089 hereinat~er called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas architect or engineer, as an independent contractor. The Design Professional hereby agrees to perform the services as described herein and in the Proposal, the General Conditions, and other attachments to this Agreement that are referenced in Section 3, in connection with the Project. The Project shall include, without limitation, the preliminary preparation and completion of a Local Project Advance funding Agreement between the City of Denton and the Texas Department of Transpiration, the preparation of an environmental document (assuming a categorical exclusion), design schematic, surveying, geotechnical work, design, preparation of plans, writing general notes, special provisions, and special specifications, computing quantities, and estimating probable construction costs for the reversal of the existing exit and entrance ramps on southbound IH 35E between Loop 288/Lillian miller Road and State School Road. Page 1 \\TCBDALNTI¥~DMIN~ROJECTS~IH 35 Ramp R~eversals ~ Unicom Lake~3esign Professional Agreement.doe SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 For Basic Services the total compensation shall be $126,314.00 2.1.2 Progress payments for Basic Services shall be paid monthly and shall be in proportion to services performed within each phase of service. The total compensation for each phase shall be as follows: Preliminary Preparation Phase Local Project Advance Funding Agreement Categorical Exclusion Preliminary Design Phase Final Design Phase $12,949.00 $13,913.00 $ 46,683.00 $ 52,769.00 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for Additional Services is as follows: Compensation for Additional Services for the calendar year 2002 shall be based on the rates shown for the various employee classifications indicated in the Cost Proposal of the Design Professional's Proposal attached hereto and made a part of this agreement. For each succeeding calendar year beyond 2002, the above rates shall be increased five percent (5%) per calendar year. Reimbursable Expenses shall be a multiple of one (1) times the expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditiom. Page 2 \\TCBDALNTI~tI)MIN~ROJECTg~IH 35 Ran~ R~ve~al~ ~ Umeom Lake~ff)esign Professiona! Agreement.doc SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: 1. City of Denton General Conditions to Agreement for Architectural or Engineering Services. The Design Professional's Proposal · Attachment A- Basic Engineering Services · Attachment B - Cost Proposal This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: BY: MICHAEL A. CONDUFF CITY MANAGER WITNESS: Gary o~. Shippy, q/ice l}resident Page 3 \\TCBDAI. NTI\ADMIN~ROJECTS~r135 Ram~ Reversals ~ Unicom Lake~Design Professional Agreem~t. doe CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT ]FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1. ARCHITECT OR ENGINEER'S RESPONSIBILITIES 1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement") and proposal (the "Proposal") to which these General Conditions are attached) performed by the Architect or Engineer 0aereina~r called the "Design Professional") or Design Professional's employees and consultants as enuroerated in Articles 2 and 3 of these Genial Conditions as modified by the ~t and Proposal (the "Services"). 1.2 The Design Professional will perform all Services as an indep~dent contractor to thc prevailing professional standards consistent with thc level of care and skill ordinarily exercised by members of the same profession cuneatly practicing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Care"). The Services shall be performed as expeditiously as is consistent with the Degre~ of Care necessary for the orderly prolgess of the Project. Upon request of the Owner, the Design Professional shall submit for the Owner's approval a ~hedule for the perforrmnce of the Services which may be adjusted aa the Project proceeds, and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule and approved by the Owner shall not, except for reasonable cause, be exceeded by the Design Professional or Owner, and any adjustments to this schedule shall be mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 2.1 BASIC SERVICES DEFINED Thc Design Professional's Basic Services consist of those described in Sections 2.2 through 2.6 of thes¢ General Conditions and include without limitation normal s~xuctural, civil, mechanical and electrical engineering services and any other engineering services ncc~ary to produce a complete and accurate set of Construction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement. 2.2 SCHEMATIC DESIGN PHASE 2.2.1 Thc Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Own~s needs and to establish the requirements for the Project. 2.2.2 Thc Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and consmaction budget require~x~nls, each in terms of the other, subject to the limitations set forth in Subsection 5.2.1. 2.2.3 The Design Professional shall review with the Owner alternative approaches to design and conzmsction of the Project. 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requ~ts, the Design Professional shall prepare, for approval by the Owner, Sehernatic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 2.2.5 The Design Professional shall submit to the Owner a preliminary delailed estimate of Construction Cost based on current area, volum~ or other unit costs and which indicates the cost of each category of work involved in conslructing the Project and establishes an elapsed time factor for the p~iod of time from the commencement to the completion of conslruction. 2.3 DESIGN DEVELOPMENT PHASE 2.3.1 Based on the approved Scbernatic Design Documents and any adjustments authorized by the Owner in the program, schedule or conslruction budget, the Design Professional shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, slractural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Ownffs approval of the documents, Design Professional represent that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project- 2.3.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described in Section 2.2.5. 2.4 CONSTRUCTION DOCUMENTS PHASE 2.4.1 Based on the approved Design Development Documents and any further adjustrmmts in thc scope or quality of the Project or in the construction budget authorized by the Owner, the Design Professional shall p~re, for approval by the Owner, Construction Documents consisting of Drawings and Specifications seRing forth in detail requirements for the construction of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. 2.4.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the Conditions of the contract, and the form of Agreement between the Owner and contractor. 2.4.3 The Design Professional shall advise the Owner of any adjustments to previous preliminary estimates of Conslruction Cost indicated by changes in requirements or general market conditions. 2.4.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over thc Project. 2.5 CONSTUCTION CONTRACT PROCUREMENT 2.5.1 The Design Professional, following the Owner's approval oftbe Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without Page 1 C:kMy Documents~TCB I GENERAL CONDITIONS-ARCHITECT-ENGINEER.doc limitation, the competitive se~lad bidding process. Although the Owner will consider the advice of tho I~ign Professional, the award of the construction contract is in thc sole discretion of thc Owner. 2.5.2 If the comtruction contract amount for the Project exceeds thc total construction cost of the Project aa set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole coat and expense, will revise the Cons[ruction Documents as may be required by the Owner to reduce or modify the quantity or quality of thc work so that the total comln~cfion cost of the Project will not exceed the total consixuction cost set forth in the approved Detailed Statement of Probable Construction Costs. 2.6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agn~rcent commences with the award of the Contract for Construction and terminates at tbe issuance to the Owner of thc final Certificate for Payment, unless extended under the terms of Subsection 8.3.2. 2.6.2 Thc Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionalss the administration shall also be in accordance with AIA document A201, General Conditions of the Conlract for Cons~auction, cora-nit as of the date of the Agreement, unless otherwise provided in the Agreement. For engineers the administration shall also be in accordance with the Standard Specifications for Public Works Construction by the North Central Texas Council of Governments, current as of the date of the Agreement, unless otherwise provided in the Agreement. 2.6.3 Construction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or extended without written agreement of the Owner and Design Professional. 2.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (1) during conslruction, and (2) at the Owners direction fi'om time to time during the correction, or warranty period described in the Conlract for Construction. The Design Professional shall have authority to act on behalf of the Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written msltument. 2.6.5 The Design Professional shall inspect the consmaction site at least two times a week, regardless of whether construction is in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being performed in a manner indicating that thc work when completed will be in accordance with the Conlraet Documents. Design Professional shall provide Owner a written report subsequent to each on-site visit. On the basis of on-site observations the Design Professional shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any defects or deficiencies in the work of Conlractor or any subconlractors. The Design Professional represenls that he will follow Degree of Care in performing all Services under the Agreement The Design Professional shall promptly correct any defoetive designs or specifications furnished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professional's ohligafions or the Owner's fights hereunder. Z.6.6 Thc Design Professional shall not have conlrol over or charge of and shall not be responsible for consOuction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for thc Contractoes schedules or failure to carry out the work in accordance with thc Contract Documents except insofar as such failure may result from Design Professional's negligent acts or omis- sions. The Design Professional shall not have control over or charge of acts or omissions of the Conlractor, Subconlractors, or their agents or employees, or of any other persons performing portions of the work. 2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be provided in the Contract Docungnts or when direct communications have been spoeially authorized, the Owner and Conwactor shah communicate through the Design Professional. Communications by and with the Design Professional's consultants shall be through the Design Professional. 2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Conlractofs Applications for Payment, thc Design Professional shall review and certify the amounts due the Conlractor. 2.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, baaed on the Design Professional's observations at the site as provided in Subsection 2.6.5 and on the data comprising the Contractor's Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing tzrprerentations are subject to minor deviations from the Conlract Documents cor- rectable prior to completion and to specific qualifications expressed by the Design Professional. The issuance cfa Ceaxificate for Payment shall firrther constitute a ~entation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional has (1) reviewed constn}ction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpo~ the Contractor has used money previously paid on account of the Conlract Sum. 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Conlxact Documents. Wbenever the Design Professional considers it necessary or advisable for implengntation of the intent of the Con~act Documeats, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Docungnts, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Design Professional nor a decision made in good faith either to exercise or not exercise such authority shall give fire to a duty or responsibility of the Design Professional to the Con~racter, Subcontractors, material and equipment suppliers, their agents or employees or other persons perforralng portions of the work. 2.6.12 The Design Professional shall m~/iew and approve or take other appropriate action upon Coniractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of(l) detem~ning compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether ornot thc work, when completed, will be in compliance with the requirements of the Conlract Documents. The Design Professional shall act with such reasonable promptness to cause no delay in the work or in the consltuction of thc Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of deten-nining the accuracy and completeness ofotber details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Con~ractor, all of which remain the responsibility af the Contractor to the extent required by the Contract Documents. The Desiitn Professional's review shall not constitute approval of.~tfety lycecautions or, unless otherwise specifically stated by the Design Professional, of construction means, methods, techniques, ~equences or procedures. The Design Professional's approval cfa specific item shall not indicate approval of an assembly of which the item is a component. When professional certification ofporformance characteristics of materials, systems or equipment is required by the Contract Documents, the Design Professional shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Conlract Documents. Page 2 C:~My DocumentsWCB I GENERAL CONDITIONS-ARCHITECT-ENGINEEILdoc 2.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3.1.1 and 3.3.3, for the Own~s approval and execution in accordance with the Conwact Documents, and may authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Con,act Documents. 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates of Substantial Completion and Final Corrq~lction, and if requested by the Owner shall issue Certificates of Substantial and Final Completion, The Design Professional will receive and new wri~ gearante~ and related documents required by the Conlract for Conslruction to be assembled by the Contractor and shall issue a final cxwtifieate for Payment upon compliance with the requirements of the Contract Docuraents. 2.6.15 The Design Professional shall interpret and provide recommendations on malt,~s concerning performance of thc Owne~ and Contractor under the requirements of the Contxaet Documents on written oequest of either the Owner or Contractor. Tl~ Design Professional's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. 2.6.16 Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the D~ign Professional shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this Agreement and in the absence of negligence. 2,6.17 The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and ConWactor relating to the execution or progress of thc work as provided in the Contract Documents. 2.6.18 The Design Professional (I) shall render services under the Agreement in accordance with the Degree of C~xe; (2) will reimburse the Owner for all damages caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be rekased from any rights thc Owner may have under the Agl~ment or diminish any of the Design Professional's obligations thereunder. 2.6.19 The Design Professional shall provide the Owner with four sets of r~rodueible prints showing all significant changes to the Conslmction Docummts during the Construction Phase. ARTICLE 3 ADDITIONAL SERV1CES 3.1 GENERAL 3.1.1 The services described in this Article 3 arc not included in Basic Statices unless so identified in the Agreement or Proposal, and they shall be paid for by the Owner as provided in the Agnmn~t, in addition to the compensation for Basic Sexvices. The services described under Sections 3.2 and 3.4 shall only tm provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 3.3 are required due to circumstances beyond the Design Professional's control, the Design Professional shall notifij the Owner in wriOng and shall not corranence such additional services until it receives written approval from the Owner to proceed. Ir'the Owner indicates in va/ting that all or part of such Contingent Additional Services ate not required, the Design Professional shall have no obligation to provide those serv/ces. Owner will be responsible for conlxmsafing the Design Professional for Contingent Additional Services only if they are not required due to the negligence or fault of Design Professional. 3.2 PROJECT I~PRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive ~csentation at the site than is deson~l in Subsection 2.6.5 is required, the Design Professional shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and dir~ted by the Design Professional, and the Design Professional shall be compensated therefor as agreed by the Owner and Design Professional. 3.3 CONTINGENT ADDmONAL SERVICES 3.3.1 Making rraterial revisions in Drawings, Specifications or other documents when such ~cvisions are: 1. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjusunents in the Owners program or Project budget; 2. required by the maetment or revision of codes, laws or regulations subsequent to tl~ prepasation of such docun~ts, or 3. duc to changes required as a result of the Owner's failure to reader decision in a timely manner. 3.3.2 Providing services required because of significant changes in the Project including but not limited to, size, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 3.33 Preparing Drawings, Specifications and other documentation and supporting data, and providing other service~ in connection with Change Orders and Construction Change Directives. 3.3.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such work. 3.3.5 Providing services made necessary by the default of the Conlractor, by major defects or deficiencies in the work of the ConWactor, or by failure of performance of either the Owner or Conlractor under the Contract for Conslruction. 3.3.6 Providing services in evaluating an exmnsive number of claims submitted by the Contractor or others in co~neclion with the work. Page 3 C :kMy Documents\TCB 1 GENERAL CONDITIONS-ARCH1TECT-ENGINEER~doc 33.7 Providing services in connection with a public heating, arbitration proceeding or legal pr0o~ing except where the Design Professional is party thereto. 33~ Providing services in addifon to thuse required by Article 2 for preparing documants for alternate, separate or sequential bids or providing services in connection with bidding or construction prior to the completion of the Conslraction Documents Phase. 3.3.9 Notwithstanding anything contained in the Agre~nent, l%opnsal or these General Conditions to the contrary, all servic~ described in this Article 3 that are caused or necessitated in whole or in pan due to the negligent act or omission of the Design Professional shaI1 be performed by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic S~vie~s. The intervening or concurrent negligence of the Owner shall not limit the I)esign Professional's obligations under this Subs~tion 3.3.9. 3.4 OPTIONAL ADI)ITIONAL SERVICES 3.4.1 Providing fmancial feasibility or other special studies. 3.4.2 Providing planning surveys, site evaluations or comparative studie~ of prosp~tive sit~. 3.4.3 Providing special surveys, environmental studies and subrrdssions required for approvals of govenunantal authorities or others having jurisdiction over the Project. 3.4.4 Providing services relative to future facilities, systems and equipment. 3.4.5 Providing services to investigate existing conditions or facilities or to make measu~xl drawings thereof. 3.4.6 Providing services to verify the accura~ of drawings or other information furnished by the Owner. 3.4.7 Providing coordination ofconslruetion !a~fonrted by separate contractors orby the Own~s own forc~ and coordination of services required in connection with conslruction performed and equipment supplied by the Owner. 3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor. 3.4.9 Providing analyses of operating and maintenance costs. 3.4.10 Making investigations, inventories of waterials or equipment, or valuations and dctailed appraisals of existing facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenanc~ manuals, t~aining personnel for operation and maintenance and consultation during operation. 3.4.13 Providing interior design and similar servicos required for or in connection with the selection, procuremant or instalhtion of fumitore, furnishings and related equipment. 3.4.14 Providing services other than as provided in Section 2.6.4, afar issuance to the Owner of the final Certificate for Payment and expiration of thc Warranty period of the Contract for Construction. 3.4.15 Providing services of consultants for other than a~chitectoral, civil, structural, rn~hanical and ¢leclfical engine~-ing poaions of the Project provided as apart of Basic Services. 3.4.16 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. 3.4.17 Preparing a set of repreducible record drawings in addition to those required by Subsection 2.6.19, showing significant changes in the work made during eon- si~uction based on marked-up prints, drawings and other data furnished by the Contractor to the Design Professional. 3.4.18 Notwithstanding anything contained in tbe Agreement, Proposal or these G-on~nal Conditions to the conlrary, all services desoribed in this Article 3 that are caused or necessitated ia whole or in part due to the negligent act or omission of the Design Professional shall be performed by the lMaign l~ofessional as a pan of the Basic Services under the Agrcexnent with no additional comtx'nsation above and beyond tbe comt0,msation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3A. 18. ARTICLE 4 OWNER*S RESPONSIBILIT/ES 4.1 The Owner shall consult with the Design Professional regarding requirements for the Pwject, including (1) the Owner's objectives, (2) schedule and design conslraints and criteria, including space requirements and relationships, flexibility, expendability, special ~quipmenl, systems and site requirements, as mom speci- fically described in Subsection 2.2.1. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related toall of the.~e costs. 4.3 ffrequested by the Design Professional, the Owner shall furnish evid~ce that fmancial arrangements have been made to fulfill the Owners obligations under this Agreement 4.4 The Owner shall designate a representative authorized to act on the Ownffs behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid urm:asonable delay in thc orderly and sequential progress of the Design Profassional's services. Page 4 C:~l y Doc u men ts~TCB 1 GENERAL CONDITIONS-ARC HITE CT- ENGINEER.d 4.5 Where applicable, the Owner shall fumish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The survv~ and legal information shall include, as appl/cable, grades and lines of sneers, alleys, pavements and adjoining propc~ and s~uctores; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data perlaining to existing buildings, other improvements and trees; and inforrcattion concerning available utility services and lines, both public and private, above and below grade, including inveCrs and depths. All the information on the survey shall be referenced to a project benchmark. 4.6 Where applicable, the Owner shall furnish the services ofgcotechnical eaginecrs wben such sen4ces are requested by the Design Prof~sional. Such scrvice.~ may include but ar~ not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous mal~ials, ground corrosion and re- sistivity testa, including necessary operations for anticipating sub-soil conditions, with reports and appropriate professional recommendations. 4.6.1 The Owner shall furnish the services of other consultanls when such st~dces are reasonably required by the scope of the Project and are requested by the Design Professional and are not retained by the Design Profe~ional as pa~ of its Basic Sendces or Additional Services. 4.7 Wh~ not a part of the Additional Services, the Owner shaIl furnish slruet~al, mechanical, chemical, air and water pollution tests, tests of hazardous materials, and other laboratory and environmental tests, inspections and ~3xn~ required by law or the ConWact Documents. 4.8 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used thc money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be famished at the Owner's expense, and the Design Professional shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of thc Design Professional. 4.10 The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contra~t D~uments. 4.11 I~sign Professional shall protmse language for c¢ffificates or certifications to be requested of the Design Professional or Design Professional's consultants and shall submit such to the Owner for review and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would r~luire knowledge or services beyond thc scope of the Algccm~t ARTICLE $ CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED $.1.1 The Construction Cost shall be the total cost or e~tirnated cost to the Owner of all elements of the Project designed or specified by the lEa:sign Professional. 5.1.2 The Conslractinn Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Dmign Professional, plus a reasonable allowance for the Contractor's overhoxl and profit. In addition, a rea,~nable allowance for con- tingencies shall be included for marknt conditions at the time of bidding and for changes in the work during construction. 5.1.3 Cons'~uction Cost does not include the compensation of the Design Professional and Design Professionars consultants, the costs of the land, rights-of-way, .financing or other costs which are the respons~ility of thc Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owners Project budget, preliminary estimates of Conslruction Co~t and detailed estimates of Conslruction Cost prepared by the Design Professional represent the Design Professional's best judgment as a d~sign professional familiar with the construction induslry. It is recognized, howover, that neither thc Design Professional nor the Owner has control over the co~t of labor, materials or cquiprnent, over the Contractor's methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, thc Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary from the Owner's Project budget or from any estimate of Couslmction Cost or evaluation prepared or agre~l to by the Design Prof~sional. 5.2.2 No fixed limit of ConsWuction Cost shall be established as a condition of the Agreement by the furnishing proposal or establishrnmt ora Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto, ffsuch a fixed limit has been established, the Design Professional shall be permitted to include contingencies for design, bidding and price ~,alation, to dcm-mine what materials, equipment' component ~ys~a~ and types of construction are to be included in the Contract Documents, to make reasonable adjustments in thc ~ of the Project and to include in the Conwact Docurnenls altemat~ bids to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an inereose in the ConWaet Sum occurring a_,ffer execution of the Conlraet for Con,traction. 5.2.3 If the Procumrm~t Phase has not commenced within 90 days af~t the Design Professional submit~ the Constxucfion Documents to the Owner, any Project budget or fixed limit of Consffuction Cost shall be adjusted to reflect changes in the general level of prices in the oonsffuction indus~J between the date of submission of thc Consm~ction Documents to the Owner and thc date on which proposals are sought ARTICLE 6 OWNERSHIP AND USE OF DOCUMEN'I~ 6.1 The Drawings, Specifications and otl~r docurm'nts prepanxl by the D~ign Professional for this Project am inslmrr~nts of the Design Pmfessionars service and shall become the property of the Owner upon ttamination or completion of the Agr~axt~t. Thc Design Prof~sional is entitled to retain copies of all such documents. Such documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in another project or for other pur0oses than a~e specified in thc Agrom~ent, thc I~ign Professional is released from any and all liability relating to their use in that project 6.2 Submission or dislributien of documents to meet official regnlatory requirtanmts or for similar purposes in connection with thc Project is not to be construed as publication in derogation of the Design Professional's reserved rights. Page 5 C3My Documents\TC[t iGENERAL CONDITIONS-ARCHITECT-ENGINEER. doc ARTICLE 7 TERMINATION, SUSPENSION OR AIBANI)ONMENT 7.1 The Design Professional may terminate the Agrecrmnt upon not less than thirty days written notice should thc Owner fail substantially to perform in accordance with the terms of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or uny phase thereof with or without cause upon thirty (30) days prior written notice to the Design Professional. All work and labor being performed under the Agn~ment shall cease imm~cliately upon Design Professional's receipt of such notice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner for alt work it satisfactorily performed prior to the receipt of such notice. No amount shall be due for lost or unticipated profits. All plans, field surveys, and other data rehted to the Project shall become property of the Owner upon termination of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with a new Design Professional for continuation of services on the Project, Design Professional shall cooperate in providing information. 7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Design Profe~ional shall be compensated for services satisfactorily performed prior to notice of such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of thc Design Professional's services. 7.3 The Agreement may be terminated by the Owner upon not less than seven days written notice to tbe Design Professional in the event that the Project is permanently abandoned, ffthe Project is abandoned by the Owner for mon~ than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written notice. 7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non- performance and cause for termination. 7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Design Professional may, upon seven days written notice to the Owner, suspend performance of services under thc Agreement. 7.6 In the event of termination not the fault oftbe Design Professional, the Design Professional shall be corapensated for services properly and satisfactorily perfon-ned prior to termination. ARTICLE 8 PAYMENTS TO TIlE DESIGN PROFESSIONAL 8.1 'DIRECT PERSONNEL EXPENSE 8.1.1 Direct Personnel Expense is defined as the direct salaries of the Design Professional's personnel engaged on the Project and the portion of thc cost of their mandatory and customary contributions and benefits related thereto, such as emplo~t taxos und other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions und similar con~n'butions and benefits. 8.2 REIMBURSABLE EXPENSES 8.2.1 Reimbursable Expenses are in addition to compensation for Basic and Additional S~vices and include expenses incurred by the Design Professional and Design Professional's employees und consultant~ in the interest of the Project, as identified in the following Clauses. 8.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out-of-town travel; long-distance communications; und fees paid for securing approval of authorities having jurisdiction over the Project` 8.2.1.2 Expense of~epxoductions (except the reproduction of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings, Specifications and other documents. 8.2.1.3 ff authorized in advance by the Owner, expense of overtime work requiring higher than ~gnlar rate~. 8.2.1.4 Expense of renderings, models and mock-ups requested by the Owner. 8.2.1.5 Expense of computer-aided design and drafting equipment time when used in connection with the Project. 8.2.1.6 Other expenses that are approved in advance in writing by the Owner. 8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 8.3.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the basis set forth in Section 2 of the Agreement und the schedule of work. 8.3.2 ffand to the extent that the time initially established in the Agreement is exct~ded or extended through no fault of the Design Professional, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement` 8.33 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 2 of the Agreement based on (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the moat recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. 8.4 PAYMENTS ON ACCOUNT OF AODmONAL SERVICES 8.4.1 Payments on account of the Design Pmfessionars Additional Services and for Reimbursable Expenses stall be made monthly within 30 days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred. 8.5 PAYMENTS WITIiI-IELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sram withheld from payments to eonlractors, or on account of the cost ofchunses in the work other than those for which the Design Professional is responsible. Page 6 C:LMy Documents\TCB1 GENERAL CONDITIONS-ARCHITECT-ENGINEER.doc 8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direr Personncl ~ for inspection and copying during regular businer, s hours for three yeats ~ thc date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is later. ARTICLE 9 INDEMNITY 9.1 The Design Professional shall indenmi~ and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability, elalms, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the Design Professional or its officers, shareholders, agents, or employees in the performance of the Agreement. 9,2 Nothing herein shall bc construed to create a liability to any person who is not a party to thc Agreement, and nothing herein shall waive any of thc parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to thc Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 10 INSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with an insurance company licensed or authorized to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aglo'egate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. 10.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. 10.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as an additional insured, thc Workers' Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to Owner and l~sign Professiunal. In such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements of this Article I0. ARTICLE 11 MISCELLANEOUS PROVISIONS 11.1 The Agreement shall be guvern~ by the lav~ of the State of Texas. Venue of any suit or eau.se of action under the Agreement shall lie exclasively in Denton County, Texas. 11.2 The Owner and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agrecment and to the pariners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement The Design Professional shall not assign its interests in the Agreement without the wriVam consent ofthe Owner. 11.3 Thc term Agreement as used herein includes the executed ~t, the Proposal, these General Conditions and other attachraents referenced in Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner and Design Professional. When interpreting the Agreement the executed Agreement, Proposal, these General Conditions and the other attachnm~ts referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they can notbe reamnably harmonized, such documents shall be given priority in the following order: 1. The executed Agreement 2. Attachments refc~nced in Section 3 of the Agreement other than the Proposal 3. These General Provisions 4. The Proposal 11.4 Nothing contained in the Agreement shall create a conlractual relationship with or a eau.ne of action in favor of a third party against either the Owner or Design Professional. ! 1.5 Upon receipt of prior written approval of Owner, tiao Design Professional shall have the fight to include mpresmtations of the design of the Project, including photographs of thc exterior and interior, among the Design Professional's promotional and professional materials. Thc Design Professional's mat~-lals shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confi- dential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the trromotional materials for the Project. 11.6 A0proval by the Owner shall not constitute, nor be deemed a release of the resgonsibility and liability of the Design Professional, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants. Page 7 C:~My Doeuments\TCB1 GENERAL CONDITIONS-ARCHITECT-ENGINEER.doc 11.7 ~ll notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below signature block on thc Agreement, certified mail, return receipt requested, unless otherwise specified herein. All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within ~ (3) days aRcr mailing. 11.8 ff any provision of the Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. 11.9 The Design Professional shall comply with all federal, state, and local laws, roles, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. 11.10 In performing the Services required hereunder, the Design Professional shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 11.11 The captions of the Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement. Page 8 C:~My Documents\TCB 1 GENERAL CONDITIONS-ARCHITECT-ENGINEER~doc ATTACHMENT A BASIC ENGINEERING SERVICES for IH 35 E Southbound Ramp Reversals between Loop 288/Lillian Miller Road and State School Road The scope of work for engineering services involves the preliminary preparation and completion of a Local Project Advance Funding Agreement between the City of Denton and the Texas Department of Transportation (TxDOT), the preparation of an environmental document (assuming a categorical exclusion), design schematic, surveying, design, preparation of plans, writing general notes, special provisions and special specifications, computing quantifies and estimating costs for the reversal of the existing exit and entrance ramps on southbound IH 35E between Loop 288/Lillian Miller Road and State School Road. Project construction will include one-lane exit and entrance ramps. The project elements will include grading, paving, drainage and related appurtenances, signing, pavement markings, storm water pollution prevention plans and traffic control plans. The engineering services will include field surveys for ties to the State monuments, establishment of benchmark circuit throughout the project, horizontal and vertical ties of critical existing facilities and features, including those off-site which influence design, cross-sections and collection of data to design and prepare plans and documents for the project. Coordinate geometry will be based on and fled into the State coordinate system. The engineering design will be coordinated to avoid conflict with or minimize major relocation of utilities, and to respect areas of right-of-way reserved for utility corridors. The design includes limited redesign of drainage facilities imposed by utility constraints developing afl:er initial' reviews by the Texas Department of Transportation (TxDOT) and Owner and consequential redesign adjustments. The work will be performed in accordance with the following manuals and standards: · Standard Specifications for Construction of Highways, Streets and Bridges (1993)- TxDOT Texas Manual of Uniform Traffic Control Devices - TxDOT · Hydraulic Manual - Bridge Division - TxDOT · Roadway Design Manual - Highway Design Division - TxDOT A Policy on Geometric Design of Urban Highways - AASHTO Whenever possible, TxDOT's standard specifications or previously approved special provisions and/or special specifications will be used. If a special provision and/or special specification must Turn,x, Collie & Braden, Inc, 1 of 2 03/27/02 be developed for this project, it shall be in TxDOT format and, to the extent possible, incorporated reference to approved TxDOT test procedures. The Engineer will incorporate TxDOT standard sheets into the construction plans at the time of submission for contract letting by TxDOT. The plans and documents will be processed by TxDOT through their normal review and bidding procedures. TxDOT will let a construction contract and perform the construction phase services. This project will be prepared in English units. The scope of work is based on the following assumptions as to information that is available and the design requirements. The assumptions are: 1. The environmental documentation required will be to the standard level of a categorical exclusion. 2. The City or TxDOT will provide the following data or information to be used in the development of the project: a) Existing and projected traffic counts b) As-built plans c) Topographic mapping in electronic format d) Any studies, previous or ongoing, relevant to the project e) Developers plans within or adjacent to the project limits f) Coordinates, location and description of TxDOT's primary control points for surveying purposes 3. The IH 35 E mainlanes and the southbound frontage road will not be modified The following services are not included in the scope: 1. Route location Studies 2. Traffic Projections 3. The performance of a single occupancy vehicle analysis 4. The performance of noise and air quality analysis 5. Permit coordination 6. Cultural resources investigation and historical significance 7. Public involvement 8. Aerial or photogrammetric mapping 9. Right of Way services 10. Additional topographic survey after completion of initial survey to account for new development or driveways, utilities, etc. 11. Landscape design services 12. Construction Phase Services 13. Signalization or illumination 14. The design of any utility relocations or adjustments H:',PROIECTS'dH 3~ I~ Ramp ~ev~s!a ~ Unicom Turner, Collie & Braden, I~e. 2 of 2 03/27/02 This page left blank intemionally. Agenda 02-013 04/16/02 #17 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET April 16, 2002 Materials Management Questions concerning this acquisition may be directed to Charles Fiedler 349-8948 Kathy DuBose, Fiscal and Municipal Services~ SUBJECT An Ordinance authorizing the City Manager to execute a Professional Services Agreement (PSA) with Teague Nall and Perkins, Inc., for Engineering Design of the Mayhill Road Bridge - Pecan Creek, as set forth in the contract; and providing an effective date (PSA 2816 - Professional Services Agreement for Engineering Design of the Mayhill Road Bridge - Pecan Creek to Teague Nall and Perkins, Inc., for a total amount of $125,700). PROFESSIONAL SERVICE AGREEMENT INFORMATION This Professional Services Agreement is for the design of the Mayhill Road Bridge - Pecan Creek. The Professional Services Procurement Act, Chapter 2254 of the government Code requires the selection of a Professional Service be determined on the basis of demonstrated competence and qualifications to perform the services at a fair and reasonable price. Teague Nall and Perkins, inc. was chosen for this project based upon the ranking criteria of the selection committee and in accordance with RFP 2816 and successful negotiations. RECOMMENDATION It is recommended that this Professional Services Agreement (PSA 2816) to Teague Nall and Perkins, inc., be approved along with the contract document in the amount of $125,700. PRINCIPAL PLACE OF BUSINESS Teague Nail and Perkins, inc. Denton, TX ESTIMATED SCHEDULE OF PROJECT It is anticipated that the Notice to Proceed will be issued on or about April 30, 2002. The estimated completion date is June 2003. Agenda Information Sheet April 16, 2002 Page 2 FISCAL INFORMATION This professional service agreement will be funded from the Drainage Capital Project account (65003100.1360.46541). Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent 1-AIS-PSA 2816- Mayhill Road Bridge ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT (PSA) WITH TEAGUE NALL AND PERKINS, iNC. FOR ENGiNEERiNG DESIGN OF THE MAYHiLL ROAD BRIDGE - PECAN CREEK, AS SET FORTH iN THE CONTRACT; AND PROViDiNG AN EFFECTIVE DATE (PSA 2816 - PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING DESIGN OF THE MAYHILL ROAD BRIDGE - PECAN CREEK TO TEAGUE NALL AND PERKINS, iNC. FOR A TOTAL AMOUNT OF $125,700). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: WHEREAS, The professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, SECTION 1. That the City Manager is hereby authorized to enter into a professional service contract with Teague Nall and Perkins, Inc., to provide professional architectural and related services for the Mayhill Road Bridge-Pecan Creek, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2002. EULiNE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 2-ORD - PSA 2816 Mayhill Road Bridge PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the 26th day of March, 2002, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Teague Nall and Perkins, with its corporate office at 235 W. Hickory, Suite 100, Denton, Texas 76201 hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas architect or engineer, as an independent contractor. The Design Professional hereby agrees to perform the services as described herein and in the Proposal, the General Conditions, and other attachments to this Agreement that are referenced in Section 3, in connection with the Project. The Project shall include, without limitation, Engineering Services for Mayhill Road Bridge at Pecan Creek -- Attachment A, including Exhibits A, B and C Page 1 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 For Basic Services the total compensation shall be $ 125,700 2.1.2 Progress payments for Basic Services shall be paid in the following amounts for of the total compensation for the Basic Services satisfactorily completed at the end of the following phases of the Project: Preliminary Preparation Phase Preliminary Design Phase Final Design Phase Construction Phase $ 2,000 $ 7,400 $67,400 $ 3,000 2.1.3 For Special Services -- See Attachment -- Exhibit B, Page 2 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for Additional Services see Attachment C, Which includes the fee/rate schedule 2.2.2 Compensation for Additional Services of consultants, including additional structural, mechanical and electrical engineering services shall be based on a multiple of 1.10 times the amounts billed to the Design Professional for such additional services. 2.3 REIMBURSABLE EXPENSES Reimbursable Expenses shall be a multiple of 1.10 times the expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions but not to exceed a total of $3,000 without the prior written approval of the Owner. SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: Page 2 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc 1. City of Demon General Conditions to Agreemem for Architectural or Engineering Services. 2. The Design Professional's Proposal - Attachment A 3. Attachments A through C. This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: BY: MICHAEL A. CONDUFF CITY MANAGER Teague Nail and Perkins, Inc BY: Gary L. Vickery, P.E Denton Office Manage WITNESS: BY: CITY OF DENTON Page 3 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1. ARCHITECT OR ENGINEER'S RESPONSIBILITIES 1.1 The Architect or Engineers services consist of those services for the Project (as defined in the agreement (the "Agreement") and proposal (the "Proposal") to which these General Conditions are attached) performed by the Architect or Engineer (hereinafter called the "Design Professional") or Design Professional's employees and consultants as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services"). 1.2 The Design Professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of care and skill ordinarily exercised by members of the same profession currently practicing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Care"). The Services shall be performed as expeditiously as is consistent with the Degree of Care necessary for the orderly progress of the Project. Upon request of the Owner, the Design Professional shall submit for the Owner's approval a schedule for the performance of the Services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule and approved by the Owner shall not, except for reasonable cause, be exceeded by the Design Professional or Owner, and any adjustments to this schedule shall be mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 2.1 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those described in Sections 2.2 through 2.6 of these General Conditions and include without limitation normal structural, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accurate set of Construction Documents, as described by and required in Section 2.4. The Basic Services may be modified by the Agreement. 2.2 SCHEMATIC DESIGN PHASE (See Exhibit A for further Clarification) 2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owner's needs and to establish the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Subsection 5.2.1. 2.2.3 The Design Professional shall review with the Owner alternative approaches to design and construction of the Project. 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Design Professional shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Construction Cost based on current area, volume or other unit costs and which indicates the cost of each category of work involved in constructing the Project and establishes an elapsed time factor for the period of time from the commencement to the completion of construction. 2.3 DESIGN DEVELOPMENT PHASE (See Exhibit A for further Clarification) 23.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Design Professional shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Owner's approval of the documents, Design Professional warrants that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project. 2.3.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described in Section 2.2.5. 2.4 CONSTRUCTION DOCUMENTS PHASE (See Exhibit A for further Definition and Clarification) 2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail requirements for the construction of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. 2.4.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurement information, bidding or procurement forms, the Conditions of the contract, and the form of Agreement between the Owner and contractor. Page 4 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc 2.4.3 The Design Professional shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. 2.4.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 2.5 CONSTUCTION CONTRACT PROCUREMENT 2.5.1 The Design Professional, following the Owner's approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without limitation, the competitive sealed bidding process. Although the Owncr will consider the advice of the Design Professional, the award of the construction contract is in the sole discretion of the Owner, 2.5.2 If the construction contract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole cost and expense, will revise the Construction Documents as may be required by the Owner to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total construction cost set forth in the approved Detailed Statement of Probable Construction Costs. 2.6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 8.3.2. 2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionals the administration shall also be in accordance with A1A document A201, General Conditions of the Contract for Construction, current as of the date of the Agreement, unless otherwise provided in the Agreement. For engineers the administration shall also be in accordance with the Standard Specifications for Public Works Construction by the North Central Texas Council of Governments, current as of the date of the Agreement, unless otherwise provided in the Agreement. 2.6.3 Construction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or extended without written agreement of the Owner and Design Professional. 2.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (1) during construction, and (2) at the Owner's direction from time to time during the correction, or warranty period described in the Contract for Construction. The Design Professional shall have authority to act on behalf of the Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument. 2.6.5 The Design Professional shall inspect the construction site at least two times a week, regardless of whether construction is in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being performed in a manner indicating that the work when completed will be in accordance with the Contract Documents. Design Professional shall provide Owner a written report subsequent to each on-site visit. On the basis of on- site observations the Design Professional shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any defects or deficiencies in the work of Contractor or any subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement. The Design Professional shall promptly correct any defective designs or specifications furnished by the Design Professional at no cost to the Owner. The Owner's approval, acceptance, use of or payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professionals obligations or the Owners rights hereunder. (See Exhibit A which clarifies and states actual site visit requirements.) 2.6.6 The Design Professional shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contractor's schedules or failure to carry out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professionals negligent acts or omissions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work. 2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Design Professional. Communications by and with the Design Professional's consultants shall be through the Design Professional. 2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Contractors Applications for Payment, the Design Professional shall review and certify the amounts due the Contractor. Page 5 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc 2.6.10 The Design Professionals certification for payment shall constitute a representation to the Owner, based on the Design Professional's observations at the site as provided in Subsection 2.6.5 and on the data comprising the Contractor's Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional has (I) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. (Omit 2.6.10 Not Applicable for this Agreement) The Design Professional will assist with any questions in regard to the items in 2.6.10. 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Contract Documents. Whenever the Design Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Design Professional nor a decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Design Professional to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the work. 2.6.12The Design Professional shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of (1) determining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the work, when completed, within compliance with the requirements of the Contract Documents. The Design Professional shall act with such reasonable promptness to cause no delay in the work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantifies or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Design Professional, of construction means, methods, techniques, sequences or procedures. The Design Professional's approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Design Professional shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents. 2.6.13The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3 1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 2.6.14 On behalf of the O~vner, the Design Professional shall conduct inspections to determine the dates of Substantial Completion and Final Completion, and if requested by the O~vner shall issue Certificates of Substantial and Final Completion. The Design Professional ~vill receive and revie~v ~vritten guarantees and related documents required by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The Design Professional shall interpret and provide recommendations on matters concerning performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Design Professional's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. Omit this paragraph 2.6.15 2.6.16Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accordance with all the provisions of this Agreement and in the absence of negligence. 2.6.17The Design Professional shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractor relating to the execution or progress of the work as provided in the Contract Documents. 2.6.18 The Design Professional (I) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for alt damages caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreement or diminish any of the Design Professional's obligations thereunder. Page 6 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc 2.6.19 The Design Professional shall provide the Owner with a digital copy and one set of reproducible prints showing all significant changes to the Construction Documents during the Construction Phase. The reproducible prints will be based on information provided to the Design Professional by others. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included iii Basic Services unless so identified in the Agreement or Proposal, and they shall be paid for by the Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services described under Sections 3.2 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 3.3 are required due to circumstances beyond the Design Professional's control, the Design Professional shall notify the Owner in writing and shall not commence such additional services until it receives written approval from the Owner to proceed. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Design Professional shatl have no obligation to provide those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they are not required due to the negligence or fault of Design Professional. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be compensated therefore as agreed by the Owner and Design Professional. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: 1.inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owners program or Project budget; 2.required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or 3.due to changes required as a result of the Owner's failure to render decision in a timely manner. 3.3.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives. 3.3.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such work. 3.3.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction, 3.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work. 3.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional is party thereto. 3.3.8 Providing services in addition to those required by Article 2 for preparing documents for alternate, separate or sequential bids or providing services in connection with bidding or construction prior to the completion of the Construction Documents Phase. 3.3.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.3.9. Page 7 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing financial feasibility or other special studies. 3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites. 3.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental auth- orities or others having jurisdiction over the Project. 3.4.4 Providing services relative to future facilities, systems and equipment. 3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 3.4.6 Providing services to verify the accuracy of drawings or other information furnished by the Owner. 3.4.7 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner, 3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor. 3.4.9 Providing analyses of operating and maintenance costs. 3.4.10Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance and consultation during opera- tion. 3.4.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. 3.4.14 Providing services other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty period of the Contract for Construction. 3.4.15Providing services of consultants for other than architectural, civil, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3.4.16 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. 3.4.17Preparing a set of reproducible record drawings in addition to those required by Subsection 2.6.19, showing significant changes in the work made during construction based on marked-up prints, drawings and other data furnished by the Contractor to the Design Professional. 3.4.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.4.18. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 The Owner shall consult with the Design Professional regarding requirements for the Project, including (1) the Owners objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more specifically described in Subsection 2.2.1. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 4.3 If requested by the Design Professional, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in the orderly and sequential progress of the Design Professional's services. Page 8 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc 4.5 Where applicable, the Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and frees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a project benchmark. 4.6 Where applicable, the Owner shall furnish the services of geotechnical engineers when such services are requested by the Design Professional. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating sub-soil conditions, with reports and appropriate professional recommendations. 4.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Design Professional and are not retained by the Design Professional as part of its Basic Services or Additional Services. 4.7 When not a part of the Additional Services, the Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests of hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall furnish all legal, accounting and insurance counseling services as maybe necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be furnished at the Owner's expense, and the Design Professional shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of the Design Professional. 4.10 The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Professional's consultants and shall submit such to the Owner for review and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would require knowledge or services beyond the scope of the Agreement. ARTICLE 5 CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional. 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the work during construction. 5.1.3 Construction Cost does not include the compensation of the Design Professional and Design Professional's consultants, the costs of the land, rights-of-way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owners Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Design Professional represent the Design Professional's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Design Professional. (See Exhibit A) 5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by the furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in Page 9 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. 5.2.3 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. ARTICLE 6 OWNERSHIP AND USE OF DOCUMENTS 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments of the Design Professionals service and shall become the property of the Owner upon termination or completion of the Agreement. The Design Professional is entitled to retain copies of all such documents. Such documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in another project or for other purposes than are specified in the Agreement, the Design Professional is released from any and all liability relating to their use in that project 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Design Professional's reserved rights. ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7.1 The Design Professional may terminate the Agreement upon not less than thirty days written notice should the Owner fail substantially to perform in accordance with the terms of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or any phase thereof with or without cause upon thirty (30) days prior written notice to the Design Professional. All work and labor being performed under the Agreement shall cease immediately upon Design Professional's receipt of such notice. Before the end of the thirty (30) day period. Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt of such notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with a new Design Professional for continuation of services on the Project, Design Professional shall cooperate in providing information. 7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to notice of such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Design Professional's services. 7.3 The Agreement may be terminated by the Owner upon not less than seven days written notice to the Design Professional in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written notice. 7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial nonperformance and cause for termination. 7.5 If the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Design Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement. 7.6 in the event of termination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to termination. ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL 8.1 DIRECT PERSONNEL EXPENSE 8.1.1 Direct Personnel Expense is defined as the direct salaries of the Design Professional's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 8.2 REIMBURSABLE EXPENSES 8.2.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Design Professional and Design Professional's employees and consultants in the interest of the Project, as identified in the following Clauses. Page 10 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nail Mayhill Agreement.doc 8.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out-of- town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 8.2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subsection 2.6,19), postage and handling of Drawings, Specifications and other documents. 8.2.1.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 8.2.1.4 Expense of renderings, models and mock-ups requested by the Owner. 8.2.1.5 Expense of computer-aided design and drafting equipment time when used in connection with the Project. 8.2.1.6 Other expenses that are approved in advance in writing by the Owner. 8.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 8.3.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the basis set forth in Section 2 of the Agreement and the schedule of work. 8.3.2 If and to the extent that the time initially established in the Agreement is exceeded or extended through no fault of the Design Professional, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement. 8.3.3 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services arc performed on those portions, in accordance with the schedule set forth in Section 2 of the Agreement based on (1) the lowest bona tide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. 8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 8.4.1 Payments on account of the Design Professionals Additional Services and for Reimbursable Expenses shall be made monthly within 30 days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred. 8.5 PAYMENTS WITHHELD No deductions shall be made from the Design Professionals compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the work other than those for which the Design Professional is responsible. 8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours for three years after the date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is later. ARTICLE 9 INDEMNITY 9.1 The Design Professional shall indemnity and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the Design Professional or its officers, shareholders, agents, or employees in the execution, operation, or performance of the Agreement. 9.2 Nothing herein shall be construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 10 INSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. Page 11 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc 10.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. 10.3 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as an additional insured, the Workers' Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to Owner and Design Professional. In such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements of this Article 10. ARTICLE 11 MISCELLANEOUS PROVISIONS 11.1 The Agreement shall be governed by the laws of the State of Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County, Texas. 11.2 The Owner and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement, The Design Professional shall not assign its interests in the Agreement without the written consent of the Owner. 11.3 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner and Design Professional. When interpreting the Agreement the executed Agreement, Proposal, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they can not be reasonably harmonized, such documents shall be given priority in the following order: 1. The executed Agreement 2. Attachments referenced in Section 3 of the Agreement other than the Proposal 3. These General Provisions 4. The Proposal 11.4 Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Design Professional. 11.5 Upon receipt of prior written approval of Owner, the Design Professional shall have the right to include representations of the design of the Project, including photographs of the exterior and interior, among the Design Professional's promotional and professional materials. The Design Professional's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project. 11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants. 11.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise specified herein. All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after mailing. 11.8 If any provision of the Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. Page 12 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc 11.9 The Design Professional shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. 11.10 In performing the Services required hereunder, the Design Professional shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 11.11 The captions of the Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement. Page 13 Q:\Proj-r 14\Den02162\Docs\PSA\Teague Nall Mayhill Agreement.doc ATTACHMENT 'A' ITEMIZED SCOPE OF SERVICES BASIC SERVICES PROJECT DESCRIPTION This project includes the preliminary analysis and design of a new bridge on Mayhill Road at Pecan Creek that will pass the flow from a fully developed conditions 100-year storm (the design storm) and elevate the roadway to above the design storm water surface. It is intended that the bridge to be constructed will be designed to be a part of the eventual construction of a secondary arterial (4-lane divided) roadway. The scope of Basic Services generally consists of the preparation of detailed plans and specifications for the bridge and associated paving, drainage and utility improvements. Special Services such as field design surveys, right-of-way document preparation, regulatory permitting, hydraulic analysis and preparation of a Letter of Map Revision (LOMR), and geotechnical investigations will also be provided, as described in Exhibit 'B'. GENERAL A. Basis for Scope of Services The following assumptions were used by the ENGINEER for the preparation of the scope of Basic Services for this project: The City of Denton has indicated it will provide an aerial topo of the project limits in electronic format. It is our understanding that this topo will be developed with one-foot contour interval accuracy. The ENGINEER will not be responsible for the accuracy of the topo provided. TNP will perform some field verification to assess the accuracy of the topo and its suitability for use for design purposes. Because the topographic data to be provided will generally be accurate to within+I- one- half foot, ENGINEER will conduct field surveys to more accurately tie key features, such as curbs and pavement near all anticipated tie-in points. Minimal impacts are expected to Pecan Creek, as the proposed bridge will easily span the creek. Section 404 permitting for the creek crossing will be based on one Nationwide 14 permit. For purposes of this proposal, it is assumed that the impacts to the streams can be limited to less than 200', which will eliminate the need for a Preconstruction Notification to the Corps of Engineers. Therefore, the 404 permitting effort will consist of notifying the Corps of Engineers after construction is complete. In the event that stream impacts cannot be limited as indicated, preparation of a PCN will be performed at hourly rates as Additional Services. The project will be designed and constructed in accordance with the City of Denton Standard Specifications, the Drainage Design Criteria Manual, February 2002 and the Transportation Design Criteria Manual, February 2002. Exhibit A-Page 1 o It is the understanding of the ENGINEER that the total budget for design and construction of this project is $1,000,000. An Estimate of Probable Construction Cost will be made during the Preliminary Design Phase, and adjustments to the actual limits of construction will be made at that time to maintain adherence to the budget. The CITY will advise ENGINEER of any costs related to the project that must be included in the project budget other than those shown in this proposal. It does not appear at this time that the budget is sufficient to design and construct one-half of a secondary arterial concrete street that will be completely above the fully developed conditions 100-year storm. Right-of-way acquisition may be necessary due to the embankments at each end of the bridge caused by the necessary elevation of the bridge. Preparation of right-of-way documents (2) is included in this proposal, but acquisition efforts are not. A LOMR is anticipated for this crossing, but no Conditional Letter of Map Revision (CLOMR) is anticipated. The fee shown herein for the LOMR is based on the assumption that the construction is in conformance with the construction plans and hydraulic models. It is assumed that the proposed bridge will be generally constructed in existing right-of-way in the approximate location of the existing culvert, necessitating extensive closure of Mayhill Road during construction. B. Design Meetings 1. The ENGINEER will meet regularly as needed with the City of Denton staff during the development of the preliminary and final plan phases of the project. C. Project Management, Administration and Coordination The ENGINEER will establish a work program and schedule for each subconsultant, as necessary, at the beginning of each phase of the project. The ENGINEER will be responsible for the coordination, supervision, review and incorporation of work performed by subconsultants. The ENGINEER will prepare exhibits for two (2) public meetings relative to the project, and will assist City staff in conducting these meetings. It is expected that one meeting will be held during the Preliminary Design Phase, and another just prior to the Construction Phase. D. Data Collection The ENGINEER will collect, compile and evaluate existing data collected from the City of Denton or other entities that provide available existing information related to the design of the project. A location map/schematic plan will be provided to the affected utility companies by the ENGINEER. These schematics will be used by the utility companies to show approximate locations of their facilities that are or may be affected by the project. Exhibit A-Page 2 The ENGINEER will make every effort to obtain as-built, record and/or future plans for the following facilities in the project area including: g. h. i. Culverts Roadway Water Lines Sanitary Sewer Lines Storm Drain Lines Telephone and Cable TV Underground and/or Overhead Lines Electric Underground and/or Overhead Lines Gas Lines Other Utilities Known to Serve the Project Area The ENGINEER will compile the preliminary information obtained above for later use in the field to help surveyors tie existing utility locations. The locations of utilities tied from field surveys will be shown on the paving and drainage plans, as appropriate. The ENGINEER will identify potential utility conflicts and provide this information to utility companies. PRELIMINARY PREPARATION PHASE A. Design Concept Conference The ENGINEER will arrange a design concept conference with the CITY to establish design guidelines, typical sections, design speeds and other criteria to be used on the project. B. Hydraulic Analysis The ENGINEER will make use of data previously developed for the Pecan Creek Master Drainage Plan to determine 100-year flow based on ultimate watershed conditions. This will be the project design storm. The ENGINEER will use aerial topo supplemented with field cross sections to develop a hydraulic model of the existing culverts and roadway, using both existing conditions flows (FEMA) and the design storm flows. The ENGINEER will model a new bridge that will convey the design storm with one-foot of freeboard, and will elevate the roadway above the design storm. The ENGINEER will develop a map depicting the impact of the proposed project on the floodplain delineation and base flood elevations. Exhibit A-Page 3 PRELIMINARY DESIGN PHASE A. Develop Schematic Plans The ENGINEER will develop schematic plans that depict the ultimate Mayhill Road section, which is a secondary arterial roadway, along with the two bridges necessary for Pecan Creek. These schematic plans will consist of the following: a. Plan view showing the lane configuration and connections to adjacent driveways. b. Schematic profiles of the ultimate roadway c. Typical sections reflecting the proposed profile and necessary embankment d. Bridge layout and profile, with approximate pier locations. The ENGINEER will develop schematic plans for the initial phase of construction, which will consist of a two-lane roadway and bridge. These schematic plans will consist of the following: a. Plan view showing the proposed location of the bridge, any necessary transitions to the existing roadway, and connections to adjacent driveways b. Schematic profiles of the initial phase of construction, showing the limits of construction and the relationship of the roadway to the design storm water surface elevation c. Typical sections reflecting the proposed profile and necessary embankment. B. Determination of Scope of Initial Construction The ENGINEER will prepare an Estimate of Probable Construction Cost for the initial phase of construction. The ENGINEER will meet with the CITY to establish the final scope of the initial phase of construction based on the schematic plans and the Estimate of Probable Construction Cost. At this stage the scope of the initial phase of construction will be adjusted as necessary to accommodate the project budget. Adjustments may include changes in construction materials, revised limits of permanent and temporary construction, or modification of project objectives. The ENGINEER and CITY will agree on a scope of construction and project budget, based on any adjustments as indicated above. The ENGINER will proceed with preparation of construction plans based on the agreed upon scope of construction and budget. However, the ENGINEER will not warrant that bids received for construction of the project, if designed in accordance with the above (and with subsequent agreed upon revisions necessary during design), will not exceed the project budget. FINAL DESIGN PHASE A. Bridge and Roadway Design The ENGINEER will develop a preliminary design of the proposed bridge and roadway improvements for the initial phase of construction (two lanes). The preliminary design will include the Exhibit A-Page 4 proposed horizontal and vertical alignments. These plan sheets will be at a 1 =20' scale and contain topographic information, existing and proposed right-of-way lines, existing underground utilities at locations of conflict, locations of driveways, typical sections, roadway baselines, pavement edges, a bridge layout and sections, pier locations, contours where necessary, limits of structures, limits of retaining walls, if any, drainage structures including pipes, limits of barriers and any other information necessary for pavement construction. Profiles at 1' =20' horizontal scale and 1"= 4' vertical scale will contain existing ground lines at the proposed profile grade line, limits of structures and profile elevations at 100 foot intervals. Upon completion, the preliminary design will be submitted to the CITY for review. The preliminary design must be approved by the CITY prior to the start of the final design phase. The ENGINEER will prepare cross-sections along roadways at 100-foot intervals and will extend to the proposed right-of-way limits. These cross-sections will form the basis for the determination of earthwork quantities. Cut and fill quantities will be computed and tabulated, referencing cross-sections. Cross-sections will be included in preliminary and final plans. B. Other Roadway Design Elements 1. A project title sheet will be prepared as required and included in the plans. Project Layout sheets will be prepared at a uniform scale which clearly indicate the limits of the entire project and the main construction elements of the project. Roadway typical sections will be prepared for paving sections along the various portions of the project. 4. Roadway horizontal and vertical control and horizontal curve data will be shown on the plans. Supplementary intersection layout information will be prepared to properly show the relationship between the profiles of intersecting streets, where deemed necessary by the ENGINEER. Details will be developed as necessary, including bridge details, and paving, drainage, utility, and miscellaneous details to describe the various types of construction when the CITY has no pertinent standard details available. Stormwater Pollution Prevention Plans (SWPPP) will be prepared for the project. SWPPP plans will describe the implementation of practices to be used to reduce the pollutants to storm water discharges associated with the construction site. Standard City of Denton and NCTCOG details for erosion control will be used as appropriate. C. Drainage Plans and Details Drainage area maps will be prepared at a scale of 1" =400', using available City of Denton contour maps. Cross-culverts and storm drain systems will be located and sub-drainage areas determined. The runoff to each culvert and storm drain system will be calculated in accordance with the City of Denton Drainage Design Criteria Manual, February 2002. Exhibit A-Page 5 D. Signing and 1. Plan/profile sheets will be provided for new culvert and storm drain construction. Miscellaneous drainage details will be prepared for any drainage related items, which are not covered by the CITY's standard details. Pavement Markings The ENGINEER will develop signing and pavement marking layout sheets for the project at an appropriate scale. These layouts will include baselines, pavement edges, right-of-way lines, pictorially depicted signs with their locations, pavement markings and buttons with dimensioning, culverts and other structures which may present a hazard to traffic, and proposed delineators and object markers. E. Preliminary Quantities and Opinion of Probable Cost 1. Project quantities will be calculated and tabulated based upon the preliminary design for inclusion in the bid proposal and the preliminary opinion of probable cost. 2. The ENGINEER's opinion of probable construction costs will be prepared for the entire project using current unit cost data. These opinions of cost will be provided on the basis of ENGINEER's experience and professional judgment, but will not imply any warranty that final bids might not vary from the cost opinions provided, since neither the ENGINEER nor the CITY have any control over market conditions or bidding procedures. F. Submit Preliminary Plans for Review 1. Submit up to five (5) sets of preliminary plans for CITY review. 2. Submit plans to utility companies for review. 3. Meet with the CITY to review and discuss the results of the preliminary design phase, as necessary. G. Prepare Final Design Plans 1. Incorporate CITY review comments and directives from the preliminary design plans in the preparation of final construction plans. H. Calculate Final Quantities and Prepare Final Opinion of Probable Cost 1. Revise the preliminary quantities and opinion of probable costs per changes in the final design and CITY review comments. Prepare Contract Documents and Specifications 1. Compile special provisions necessary for the project. Exhibit A-Page 6 Compile specifications necessary for the project. Any special specifications will also be prepared. The CITY will provide a copy of their standard specifications in digital format, if available. 3. Compile and develop a list of general notes necessary for the project. 4. Prepare complete contract documents and specifications for bidding purposes. J. Submit Final Plans, Specifications, and Contract Documents for CITY review 1. Submit up to five (5) sets of final bid documents for CITY review and approval. Submit detailed drawings and plans/specifications to appropriate regulatory agency(ies) and utility companies and obtain clearance. 3. Meet with the CITY to review and discuss the results of the final design phase, as necessary. BIDDING & CONTRACT AWARD PHASE A. Advertising 1. ENGINEER will assist the CITY in the advertisement of the projects for bid. The CITY shall bear the cost of advertisement. The ENGINEER shall provide all necessary printing of construction plans, specifications and contract documents (up to 30 sets) for use in obtaining bids, awarding contracts, and constructing the project. The CITY shall be responsible for dispersing all plans and specifications from its purchasing department to prospective bidders. ENGINEER will provide technical support to the CITY during the Bidding & Contract Award phase by responding to bidder and CITY questions, reviewing the bids, and making a recommendation of award to the CITY. CONSTRUCTION PHASE B. Construction Observation and Contract Administration The ENGINEER will provide limited construction observation and contract administration for the project within the scope of Basic Services as outlined below. Detailed daily construction inspection will be performed by the CITY. Any construction phase services requested by the CITY beyond those described below will be provided as Additional Services. 1. Attend pre-construction conference. 2. Visit the site on an irregular basis as directed by the CITY, up to three visits. 3. Consult and advise the CITY; and prepare routine change orders as required. Review samples, catalog data, schedules, shop drawings, laboratory, shop and mill tests of material and equipment and other data which the Contractor is required to submit, only for conformance with the design concept of the project and compliance with the information given by the Contract Documents; and assemble written guarantees which are required by the Contract Documents. Exhibit A-Page 7 SPECIAL SERVICES TO BE PROVIDED BY ENGINEER Special Services to be provided by the ENGINEER for this Project include Design Surveys, preparation of Right-of-Way Documents, Geotechnical Investigations, preparation of Traffic Control Plans, preparation of a LOMR, and preparation and submittal of 404 permit documents to the Corps of Engineers. The scope of work for these Special Services are more generally described as follows: DESIGN SURVEYS A. Topographic Survey ENGINEER will obtain vertical and horizontal control data used by CITY for the aerial survey. This control data will be used for project control. ENGINEER will gather limited data for use in verification of the aerial topo, including a partial profile of Mayhill Road and one or more cross sections. If it is determined that the aerial topo varies significantly from the field data, ENGINEER will notify CITY immediately to determine a course of action. ENGINEER will perform field design surveys to supplement the aerial topo to be provided by CITY, particularly in areas where proposed improvements will tie into existing hard features such as pavement. ENGINEER will tie improvements and topographic features horizontally and vertically within the limits of the project that will be required to design and perform the work. The survey will depict existing features adjacent to the project limits, including pavement, curbs and other tie-in features. Data necessary to prepare cross sections of the proposed project will be taken from the aerial survey. Surveys will show all visible existing improvements and features within the proposed right-of-way limits throughout the project. Tie the horizontal and vertical location of known underground utilities based upon available information and "field locates" or markings provided by the utility companies. ENGINEER will rely solely on the cooperation of the various utility companies and any information they or the CITY make available. Detailed horizontal and vertical information necessary to depict the existing culvert in hydraulic models will be obtained. Five cross sections of Pecan Creek (three downstream of Mayhill Road and two upstream) will be taken in the field to supplement aerial data. These sections will extend 25 feet outside the top of bank of the creek. Horizontal control monumentation and vertical benchmarks for construction will be established, as necessary. Temporary Signs, Traffic Control, Flags, Safety Equipment, Etc. 1. The ENGINEER will exercise care in completing this surveying assignment by using traffic control devices, flags and safety equipment when necessary. Exhibit A-Page 8 BOUNDARY SURVEY AND PREPARATION OF RIGHT-OF-WAY ACQUISITION DOCUMENTS Right-of-Way Documents for two (2) tracts 2. 3. 4. ENGINEER will locate and tie existing property corners where possible. Deed research will be conducted, and the boundary analyzed to determine actual property lines. A Right-of-Way map will be prepared for inclusion in the plans. Individual documents for acquisition of right-of-way from the necessary tracts will be prepared, but actual acquisition work is not a part of the scope of this agreement. All boundary survey work and preparation of the ROW map and property documents will be performed by or under the supervision of a Registered Professional Land Surveyor, and will be performed in accordance with the minimum standards set forth by the Texas Board of Professional Land Surveyors. GEOTECHNICAL INVESTIGATIONS (Note: Geotechnical Investigations will be performed by a sub-consultant under contract with the ENGINEER. The ENGINEER shall coordinate with the geotechnical consultant and review test reports and recommendations. A copy of the agreement between ENGINEER and CMJ Engineering, Inc. is attached and made part of this agreement between CITY and ENGINEER)) A. Field Investigation Five (5) borings will be taken at regular intervals along the length of the project, generally to a depth of 10' to 20'. Two borings will be taken near the proposed Pecan Creek bridge, to a depth of approximately 50'. B. Laboratory Analysis and Report 1. Laboratory analysis will include moisture analysis, soil identification, Atterberg limits determinations, unit weight determinations, unconfined compression tests and lime series tests. Boring logs will be provided on all borings, and a report summarizing the findings of the analysis will be prepared. Recommendations will be made for placement of fill material, for design of the bridge foundations, and for slope stability on the embankment section, along with guidelines for pavement design. Exhibit A-Page 9 TRAFFIC CONTROL PLAN Traffic control plans will be prepared at an appropriate scale and will show existing conditions and detours necessary to maintain traffic flow during each phase of the construction. All temporary signs and pavement markings will be identified, along with necessary project sequencing. Traffic control plans will be in accordance with the Texas Manual of Uniform Traffic Control Devices. CORPS OF ENGINEERS 404 PERMIT Data will be compiled both before and after design and construction for submittal to the Corps of Engineers for a Nationwide 14 permit for the Pecan Creek crossing. A brief report will be prepared during the preliminary design phase, outlining the nature of the jurisdictional waters and the impacts of the project on these waters. Upon completion of construction, notification will be submitted to the Corps outlining the impacts of the project. For purposes of this proposal, it is assumed that the impacts to the streams can be limited to less than 200', which will eliminate the need for a Preconstruction Notification to the Corps of Engineers. In the event that stream impacts can not be limited as indicated, preparation of a PCN will be performed at hourly rates as Additional Services. LETTER OF MAP REVISION (LOMR) Models developed in the Preliminary Preparation Phase will be compiled and prepared for submittal. 2. A work map and annotated FIRM map will be prepared based on the models. 3. All necessary FEMA forms will be completed. Limited field verification will be conducted to ensure the construction was according to the plans and models. In the event that significant variances are discovered during this verification, a more extensive verification may be required, along with additional modeling to assess the affect of the variances. This additional modeling and field verification will be performed by ENGINEER at hourly rates as Additional Services. Materials for submittal to FEMA will be submitted to CITY for review and processing through FEMA. CITY will pay all necessary FEMA review fees. Exhibit A-Page 10 ITEMS TO BE PROVIDED BY CITY TO THE ENGINEER The CITY or the CITY's designee will provide or make available to, or assist the ENGINEER in obtaining the following services, information and materials upon request: 1. Available past studies, correspondence, materials and mapping relative to the project. 2. Aerial topographic data in electronic format, compatible with AutoCAD R14 or AutoCAD 2000i. 3. Vertical and horizontal control used for the aerial survey. 4. Copies of construction plans and plats for developed property adjacent to the project. 5. Assistance in obtaining data from third party sources which is available to the CITY at no cost to the ENGINEER. 6. Current City of Denton Standard Details, Specifications and/or Contract Document data, such as required prevailing wage rates. PROJECT SCHEDULE Preliminary Preparation Phase Complete within 3 weeks of Notice to Proceed Preliminary Design Phase (including field surveys) Complete within 8 weeks of CITY approval of results of Preliminary Preparation Phase Final Design Phase - Preliminary Plans Complete within 8 weeks of CITY approval of schematic plans Final Design Phase - Final Plans Complete within 14 weeks of CITY approval of Preliminary Plans (includes 2 weeks of CITY review prior to completion of final Bid Documents) Construction Phase Will proceed with construction This schedule assumes an orderly progression of the ENGINEER's services. Delays beyond the control of the ENGINEER may be cause for extension of this period of service. If CITY has requested significant modifications or changes in the general scope, extent or character of the Project, the time of performance of ENGINEER's services shall be adjusted equitably. Exhibit A-Page 1 1 ATTACHMENT 'B' SCHEDULE OF FEES A. BASIC SERVICES: For work performed by the ENGINEER within the scope identified in EXHIBIT A, Itemized Scope of Services, the ENGINEER will be reimbursed as described below: Labor The following fixed fees shall be paid to the ENGINEER for labor involved in the various items of work within the scope of Basic Services identified in EXHIBIT A: PRELIMINARY PREPARATION PHASE PRELIMINARY DESIGN PHASE FINAL DESIGN PHASE CONSTRUCTION PHASE Subtotal (Labor) Direct Expenses $ 2,000 $ 7,400 $67,400 $ 3,000 $ 79,800 Direct Expenses such as printing, reproductions, automobile mileage, delivery/courier services, etc. will be reimbursed to the ENGINEER at his direct invoice expense pIus 10 % with a not-to-exceed amount of: 3. Total Fee for Basic Services $ 3,000 TOTAL (BASIC SERVICES) $ 82,800 Exhibit B-- Page 1 B. SPECIAL SERVICES: Work performed by the ENGINEER outside the scope of Basic Services identified in EXHIBIT A, Itemized Scope of Services, shall be considered Special Services, as identified in EXHIBIT A, Special Services to be Provided by Engineer. The ENGINEER will be reimbursed for Special Services as described below: 1. Labor The following fixed fees shall be paid to the ENGINEER for labor involved in the various items of work within the scope of Special Services identified in EXHIBIT A: Design Surveys Boundary Survey & Preparation of R/W Documents Geotechnical Investigations Traffic Control Plans COE 404 Permit Coordination Letter of Map Revision TOTAL (SPECIAL SERVICES) $ 6,200 $ 7,200 $ 14,700 $ 3,800 $ 1,500 $ 9,500 $ 42,900 C. ADDITIONAL SERVICES: Work performed by the ENGINEER outside that scope identified in EXHIBIT A, Scope of Basic Services, shall be considered Additional Services. No Additional Services are anticipated for this project. The ENGINEER will be reimbursed for Additional Services, should they be requested, as described below: 1. Labor ENGINEER shall be reimbursed on the basis of negotiated fees for each item of service provided, as mutually agreed to by the ENGINEER and CITY; or labor of personnel employed by the ENGINEER will be reimbursed on an hourly basis in accordance with EXHIBIT C, Standard Rate Schedule. 2. Direct Expenses Direct Expenses such as printing, reproductions, automobile mileage, delivery/courier services, etc. will be reimbursed to the ENGINEER at his direct invoice expense. Where appropriate, a not-to- exceed amount will be established and agreed to for each item of service provided. Exhibit B-- Page 2 SUMMARY OF FEES: 1. Basic Services Labor Direct Expenses TOTAL (BASIC SERVICES) $ 79,800 $ 3,000 $ 82,800 2. Special Services Labor TOTAL (SPECIAL SERVICES) 3. Additional Services Labor Direct Expenses $ 42,900 $ 42,900 $ To Be Determined $ To Be Determined TOTAL (ADDITIONAL SERVICES) $ To Be Determined 3. Total Fees for Project TOTAL FEES $ 125,700 Exhibit B-- Page 3 Enqineerinq/Technical ATTACHMENT 'C' TEAGUE NALL AND PERKINS, INC. Standard Rate Schedule for Reimbursable/Multiplier Contracts Effective January 1, 2002 to December 31, 2002* From To Principal Office Manager IT Manager Senior Engineer Engineer Graduate Engineer Senior Designer Designer Landscape Architect / Planner CAD Technician Intern Technician Clerical Resident Project Representative Surveying $125 - $175 Per Hour $100 - $120 Per Hour $75 - $90 Per Hour $80 - $120 Per Hour $65 - $95 Per Hour $60 - $90 Per Hour $65 - $115 Per Hour $50 - $70 Per Hour $75 - $85 Per Hour $45 - $75 Per Hour $35 - $50 Per Hour $40 - $60 Per Hour $40 - $55 Per Hour Survey Office Manager R.P.L.S. Senior Survey Technician Junior Survey Technician 2-Person Field Crew w/Equipment 3-Person 4-Person 2-Person 3-Person 1-Person 2-Person 3-Person Field Crew w/Equipment Field Crew w/Equipment G.RS. Crew w/Equipment G.P.S. Crew w/Equipment Robotic Crew w/Equipment Robotic Crew w/Equipment Robotic Crew w/Equipment $100 $85 $65 $55 $85 $100 $120 $120 $140 $85 $95 $115 Direct Cost Reimbursables Photocopies $0.1 O/page $0.20/page $2.00/page Plots $1 .00/page $2.00/page $2.00/page $4.00/page $4.00/page Blueline Prints $2.00/page Sepias $4.00/page Mileage $0.36/mile letter and legal size bond paper, B&W 11" x 17" size bond paper, B&W 22" x 34" and larger bond paper or vellum, B&W 11" x 17" size bond paper, B&W 11" x 17" size bond paper, color 22"x34" and larger bond paper or vellum, B&W 22"x34" and larger bond paper or vellum, color 22"x34" and larger mylar or acetate, B&W all sizes all sizes mylar or acetate film All Subcontracted and outsourced services billed at actual cost plus 10 % * Rates shown are for calendar year 2002 and are subject to change in All subsequent years. Q:\Proj-rl 4\DenO2162\Docs\PSA\02162attC. doc Exhibit B-- Page 4 Agenda 02-013 04/16/02 #18 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET April 16, 2002 Materials Management Questions concerning this acquisition may be directed to Eva Poole 349-7735 Kathy DuBose, Fiscal and Municipal Services~ SUBJECT An ordinance authorizing the City Manager to execute Change Order Number One to the contract between the City of Denton and HH Architects; providing for the expenditure of funds therefore; and providing an effective date (Ordinance No. 2001-115; PSA 2657 - Professional Services for North Branch Library awarded to HH Architects in the amount of $374,594 and Change Order Number One in the amount of $30,400 for a total of $404,994). PROFESSIONAL SERVICE AGREEMENT INFORMATION Change Order Number One to the Professional Services Agreement is for added services for Civil Engineering and the Landscape Architect, which were not part of the original Professional Services Agreement. These services are considered additional services, which were to be added at a later date as necessary for the completion of this project design. The Professional Services Procurement Act, Chapter 2254 of the Government Code requires the fees of a Professional Service are of a fair and reasonable price, and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession, and such fees do not exceed the maximum provided by law. RECOMMENDATION It is recommended that Change Order Number One to the Professional Services Agreement (PSA 2657) to HH Architects be approved, thus increasing the total Professional Services Agreement to $30,400. PRINCIPAL PLACE OF BUSINESS HH Architects Dallas, TX 75206 ESTIMATED SCHEDULE OF PROJECT It is anticipated that the Notice to Proceed will be issued on or about April 17, 2002. Agenda Information Sheet April 16, 2002 Page 2 FISCAL INFORMATION This professional service agreement will be funded from North Branch Library Construction Project Account 10001000.1360.20100. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent ORDINANCE NO. AN ORDINANCE AUTHORiZiNG THE CiTY MANAGER TO EXECUTE CHANGE ORDERNUMBER ONE TO THE CONTRACT BETWEEN THE CiTY OF DENTON AND HH ARCHITECTS; PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (ORDINANCE NO. 2001- 115; PSA 2657 - PROFESSIONAL SERVICES FOR NORTH BRANCH LIBRARY AWARDED TO HH ARCHITECTS [N THE AMOUNT OF $374,594 AND CHANGE ORDER NUMBER ONE [N THE AMOUNT OF $30,400 FOR A TOTAL AMOUNT OF $404,994). WHEREAS, on March 6, 2001 by Ordinance No. 2001-115, the City awarded a public works contract to HH Architects, in the amount of $374,594 for the design of the North Branch Library; WHEREAS, the Staff having recommended, and the City Manager having recommended to the Council that a change order be authorized to amend such contract agreement with respect to the scope of work and an increase in the payment amount, and said change order fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CiTY OF DENTON HEREBY ORDAINS: SECTION i. The Change Order No. One, increasing the amount of the professional services agreement between the City and HH Architects, which is on file in the office of the Purchasing Agent, in the amount of Thirty Thousand Four Hundred and 00/100 ($30,400.00) Dollars, is hereby approved and the expenditure of funds therefore is hereby authorized in accordance with said change order. The total purchase order amount increases to $404,994.00. SECTION ii. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2002 EULiNE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CiTY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 2-ORD-PSA 2657 This page left blank intemionally. Agenda 02-013 04/16/02 #19 AGENDA INFORMATION SHEET AGENDA DATE: April 16, 2002 DEPARTMENT: Parks and Recreation Department ACM: Dave Hill, Assistant City Manager )/CT' SUBJECT Consider approval of a resolution allowing Metzler's Food and Beverage to be the sole participaN allowed to sell alcoholic beverages at the Cinco de Mayo Celebration on May 4, 2002, upon certain conditions; authorizing the City Manager or his designee to execute an agreemeN in conformity with this resolution; and providing for an effective date. BACKGROUND The Cinco de Mayo Committee, made up of community voluNeers and City staff voted for the fourth consecutive year to support the sale of alcohol at the event, allowing Metzler's Food and Beverage Restaurant to be the sole proprietor of this product. Metzler's Food and Beverage RestauraN will be responsible for renal of the booth space, obtaining the temporary license, and securing the temporary permit. All proceeds from the sale will support further Cinco de Mayo Celebration evens. The annual Cinco de Mayo Celebration even is a Hispanic cultural festival, co-sponsored by the City of DeNon, Parks and Recreation DepartmeN. It is held in Civic CeNer Park and includes a parade, local vendors, children's activities, eNertainmeN and an evening dance. The free daytime even runs from 10:00 a.m. - 6:00 p.m. A dance is held in the Civic CeNer from 8:00 p.m. - 1:00 a.m., where an admission price is charged. The even coNinues to experience growth each year in community participation through local vendors and entertainment. Last year's event hosted around 6,000 participants with 60 vendors and two eNertainmeN stages. This would be the fifth year that alcohol will be sold at this eveN. This year Ben E. Keith and Miller Beer of DeNon are the major community sponsors. OPTIONS Council options include the approval or denial of the ordinance and agreemeN as submitted. Council may also opt to modify the agreemeN to include additional or modified requiremeNs. RECOMMENDATION Staff recommends approval of the ordinance and agreement as submitted, which is consistent with agreements with other co-sponsored events, such as the Denton Arts & Jazz Festival. ESTIMATED SCHEDULE OF PROJECT The Cinco de Mayo Celebration is May 4, 2002, from 10:00 a.m. - 6:00 p.m. A dance is held in the Civic Center from 8:00 p.m. - 1:00 a.m. The sale of alcohol will be limited to the daytime event. PRIOR ACTION/REVIEW At the March 25, 2002, meeting the Parks and Recreation Board unanimously recommended approval of this item. FISCAL INFORMATION This action has no impact on the City's General Fund budget. All costs and revenue from this action will be solely the responsibility of the Metzler's Food and Beverage Restaurant. BID INFORMATION Not applicable EXHIBITS a. Resolution b. Contract c. Parks Board Minutes of March 25, 2002 RESPECTFULLY SUBMITTED: Prepared by: Ed Hodney, Director Parks and Recreation Department Janie McLeod, Administrative Assistant Parks and Recreation Department 2 S:\Our Documents\Resolutions\02\Cinco De Mayo alcohol sell.doc RESOLUTION NO. A RESOLUTION ALLOWING METZLER'S TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE CiNCO DE MAYO CELEBRATION ON MAY 4, 2002, UPON CERTAIN CONDITIONS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE AN AGREEMENT IN CONFORMITY WITH THIS RESOLUTION; AND PROViDiNG FOR AN EFFECTIVE DATE. WHEREAS, the City of DeNon ("City") is the owner of the Civic CeNer Park and through the Park and Recreations Department co-sponsors a Cinco De Mayo Celebration at the Civic Center Park; WHEREAS, the consumption of alcoholic beverages is allowed in the Civic CeNer Park pursuant to City of DeNon Code, §22-32 (b); WHEREAS, the City Council finds that it is in the public iNerest to select only one vendor of alcoholic beverages at the Cinco De Mayo Celebration; and WHEREAS, Roy Metzler doing business as Metzler's (called "Metzler's") has requested that they be sole participant allowed to sell alcoholic beverages at this year's Cinco De Mayo Celebration on May 4, 2002; and WHEREAS, the Parks and Recreation Board has recommended that Metzler's be the sole participant allowed to sell alcoholic beverages at the Cinco De Mayo Celebration; and WHEREAS, the City agrees with the recommendation of the Parks and Recreation Board; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. Metzler's shall be the sole participant allowed to sell alcoholic beverages at the Cinco De Mayo Celebration on May 4, 2002 at the Civic CeNer Park upon the following conditions: 1. They shall be responsible for renal of any booth space necessary; 2. They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; 3. They shall provide the security necessary for the sale of alcoholic beverages; 4. They shall provide general comprehensive liability insurance from a responsible carrier, with the City as an additional insured, in the amount of $500,000.00. Agrees to indemnify the City of Demon against any liability incidem to the selling of alcoholic beverages at the Cinco De Mayo Celebration. SECTION 2. The City Manager or his designee is authorized to execute an agreemem in conformity with this resolution, which shall be substantially in the form of the agreemem attached hereto and made a part hereof by reference. SECTION 3. This resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documents\Contracts\02\Cinco De Mayo Contract.doc STATE OF TEXAS COUNTY OF DENTON This Agreement, made this __ CIVIC CENTER AGREEMENT FOR THE CINCO DE MAYO CELEBRATION day of ,2002, by and between the City of Demon, a municipal corporation, hereinafter referred to as the "CITY' and Roy Metzler doing business as METZLER'S FOOD AND BEVERAGE (called "METZLER'S"). WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 GENERAL The City grants to METZLER'S the exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the Cinco De Mayo celebration on May 4, 2002 to be held at the Civic Center Park. Attached hereto and made a part hera)f by is a copy of the resolution passed by the City Council of Demon, Texas authorizing this privilege. This privilege does not extend beyond the date of the Cinco De Mayo celebration set for the year 2002. ARTICLE 2 SCOPE OF SERVICES METZLER'S in order to exercise the privilege to sell alcoholic beverages must perform the following: METZLER'S shall be solely responsible for the remal and paymem for any booth space necessary for the sale of alcoholic beverages at the Cinco De Mayo Celebration. METZLER'S shall be solely responsible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the Cinco De Mayo Celebration. METZLER'S shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the Cinco De Mayo Celebration. METZLER'S's failure to do any of the above and to show proper proof of compliance shall waive their right to exercise the privilege of selling alcoholic beverages at the Cinco De Mayo Celebration. ARTICLE 3 LOCAL RULES AND REGULATION METZLER'S agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, the DeNon Civic Cemer Rules and Regulations, to obtain all necessary and proper licenses, permits and authorizations, and to comply with the requirements of any duly authorized person acting in connection therewith. METZLER'S shall pay all taxes, if any, of every nature and description arising out of or in any manner connected with the sale of alcoholic beverages. METZLER'S will exercise reasonable care and due diligence in their sale of alcoholic beverages at the Cinco De Mayo Celebration. ARTICLE 4 INDEMNITY AGREEMENT METZLER'S shall indemnify and save and hold harmless the CITY and its officers, agems, and employees from and against any and all liability, claims, demands, losses, and expenses, including but not limited to, court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of METZLER'S or it officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreemem shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreemem, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE 5 INSURANCE During the performance of the Agreemem, METZLER'S shall maimain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carders of at least an A- or above: Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less that $100,000 for each occurrence and not less than $100,000 in the aggregate. METZLER'S shall furnish insurance certificates or insurance policies at the CITY'S request to evidence such coverages. The insurance policies shall name the CiTY as an additional insured on all such policies, and shall contain a provision that such insurance Cinco De Mayo Celebration Agreement - Page 2 shall not be canceled or modified without written notice to the CiTY and METZLER'S. In such event, METZLER'S shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE 6 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless oherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To METZLER'S: To CITY: METZLER'S FOOD AND BEVERAGE: Roy Metzler 628 Londonderry Lane Denton, Texas 76205 (940) 591-1652 CITY OF DENTON: City Manager 215 E. McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE 7 ENTIRE AGREEMENT This Agreement, consisting of five (5) pages and __ exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. ARTICLE 8 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable, in such event, the parties shall reform this Agreement to replace such stricken provisicn with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. Cinco De Mayo Celebration Agreement - Page 3 ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, METZLER'S shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 10 PERSONNEL METZLER'S represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. ARTICLE 11 ASSIGNABILITY METZLER'S shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. ARTICLE 12 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 13 MISCELLANEOUS The following exhibits are attached to and made a part of this Agreement: (list exhibits) Exhibit "A" Resolution No. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. Cinco De Mayo Celebration Agreement - Page 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be execmed by its duly authorized City Manager, and METZLER'S has executed this Agreement through its duly authorized undersigned officer on this the day of , 2002. CITY OF DENTON, TEXAS MICHAEL A. CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: METZLER'S FOOD AND BEVERAGE: BY: ROY METZLER WITNE S S: BY: Cinco De Mayo Celebration Agreement - Page 5 DRAFT Parks, Recreation and Beautification Meeting March 25, 2002 City Hall Conference Room Members present: Don Edwards, Dalton Gregory, Geri Aschenbrenner, Dale Yeatts, Brandon Barnes, and Cassandra Berry. Members absent: Teresa Andress. Staff present: Bob Tickner, Emerson Vorel, Ed Hodney, Janet Simpson, Janie McLeod, and Jim Mays. Chairman Don Edwards called the meeting to order at 6:00 p.m. AWARDS AND RECOGNITION. Emerson Vorel introduced Jim Mays who was recently promoted to Program Area Manager for the Parks Operations division. Emerson also said that the department won a Texas Parks and Recreation Society (TRAPS) State award for the City Scapers program. APPROVAL OF MINUTES. Dale Yeatts made a motion to approve the minutes of the February 25~h meeting and Geri Aschenbrenner seconded the motion. The motion passed unanimous. ACTION ITEMS Consider approval resolution allowing Metzler's Food and Beverage to sell alcoholic beverages at the Cinco de Mayo Celebration on May 4, 2002. Janet Simpson introduced Nicole Vazquez, chairperson of the Cinco de Mayo committee. Janet said that each year a representative from the committee makes a request of the Board to recommend to City Council approval for the sale of alcoholic beverages at the event. She said that there would be an increase in security as a precautionary factor and not because of any previous problems. Nicole asked for a multi-year contract for the sale of alcoholic beverages at Cinco de Mayo so they wouldn't need to come before the Board each year. Ed said that more information would be needed before a contract could be arranged and that staff would bring the topic back to the Board with more information. Ed asked that Janet and Nicole work on the requested contract together. ACTION: Dalton made a motion to approve the request recommend to City Council to approve the sale alcoholic beverages at the Cinco de Mayo event on May 4th. Brandon seconded the motion and it passed unanimously. Dalton asked why the Arts Festival is not required to make requests to Council to sale alcoholic beverages at their event. He said that consistency is important when dealing with the various events that sell alcohol. Ed assured the Board that there is consistency and no discrimination between organizations. Ed added that the Art Festival has an ongoing contract with the City through its funding with hotel/motel tax and deals primarily with the CMO rather than the Parks Department. Ed said that a more formal multi-year policy for selling alcoholic beverages in the Civic Center Park would need to be developed and presented to City Council for approval. DRAFT Consider a request d~hom City of Denton Electric Engineering Department to construct an electric line across the~ontage of Mack Park. Bob said that the City's Electric Engineering Departmem has requested the use of park land for the purpose of relocating an electric transmission line to service a section of the city near Mack Park. Bob said there be no major impact on currem park operation s or programs. Bob added that the lines will be placed underground and wouldn't change the use of the park. The Departrnem would be compensated for the use of the park land and the Funds would be used to improve the park. ACTION: Dale Yeatts made a motion to approve the request to lay electrical lines at the entryway of Mack Park on McKinney Street. Geri Aschenbrenner seconded the motion and it passed unanimously. Receive a report and make a recommendation on the naming of the aquatic center. Brandon Barnes, chair of the Aquatic Naming Committee, presented the committee's report. Brandon said that the process for the naming was the committee members researched and brainstormed a list of possible names. The committee then prioritized the names. Staff concurred with the naming committee that the name given first priority was marketable. ACTION: Brandon Barnes made a motion to recommend "Water Works Park" to City Council as the name of the water park subject to review of the marketing firm. Geri Aschenbrenner seconded the motion and it passed unanimously. Aquatic Center Operation Agreement. Janet said the Parks and Recreation Departmem (PARD) and DeNon Independem School District (DISD) staff have completed a draft Operations Agreemem, and are in the process of finalizing minor details in the documem. The Operations Agreemem will be a binding agreemem approved by both the City Council and the DISD School Board and will provide for the maimenance and operation of the Aquatic Facilities once construction is completed. This agreement is an addendum to the Interlocal Agreement, which was approved in May 2001, and covered the design and construction of the project. Dalton Gregory had to leave to attend another meeting. ACTION: Dale Yeatts made a motion to approve the operations agreement and Brandon Barnes seconded the motion. The motion passed unanimously. DIRECTOR' S REPORT Project Status Report. Ed said he would respond to any questions regarding the report. were no questions. There Keep Denton Report. There were no questions or commems regarding the report. OTHER ITEMS Brandon asked about the status of the sign for the Mabel Craven tennis cemer at Avondale Park. Emerson said that options are being considered and a recommendation should be ready soon. Ed said that Cathy Avery would contact Brandon to provide more information. DRAFT Ed distributed a letter from the North Texas Woman's Soccer Association requesting a location to play soccer. Ed said he would copy the Board with his response. There being no further business, the meeting adjourned at 7:10 p.m. Agenda 02-013 04/16/02 #20 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION April 16,2002 Engineering Dave Hill, 349-8314 SHEET SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Wireline Crossing Agreemem with Union Pacific Railroad Company for a wireline crossing located at Mile Post 721.180, Choctaw Subdivision, City of DeNon, DeNon County, Texas; Authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND An overhead electric crossing installation is proposed along the west side of U.S. Highway 377 at its intersection with Bonnie Brae. Staff has requested permission to cross an area within the boundaries of an existing Union Pacific Railroad right of way. The Union Pacific Railroad Company has agreed to the encroachmem on their right of way with the use of their standard Wireline Crossing Agreemem. OPTIONS 1. Approve the Ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION Staff recommends approval of the draft Ordinance. ESTIMATED PROJECT SCHEDULE Spring 2002 PRIOR ACTION/REVIEW None FISCAL INFORMATION The cost to the City is a $1,500.® one-time license fee ATTACHMENTS Location Map Draft Ordinance License Agreement Prepared by: · Denise M. Perez Technical Assistant Respectfully submitted: Charles Fiedler, Director Engineering Department Location IH Wireline Crossing ,JOHNSCIN Z ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A WiRELiNE CROSSING AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY FOR A WiRELiNE CROSSING LOCATED AT MILE POST 721.180, CHOCTAW SUBDIVISION, CITY OF DENTON, DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute a Wireline Crossing Agreemem with Union Pacific Railroad Company for an electric wireline located at mile post 721.180, Choctaw Subdivision, City of DeNon, DeNon County, Texas substantially in the form of the Agreemem attached hereto and incorporated by reference herein (the "Agreemem"). SECTION 2. The expenditure of funds as provided in the Agreemem is hereby authorized. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: WLX.DOC 940204 Form Approved, AVP-Law Folder No.2074-97 WIRELINE CROSSING AGREEMENT Mile Post 721.180, Choctaw Subdivision/Branch Location: Denton, Denton County, Texas THIS AGREEMENT is made and emered imo as of the __ day of ,2002, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Licensor"), and CITY OF DENTON, a Texas municipal corporation, whose address is City Hall East, 601 East Hickory Street, DeNon, Texas 76205 (hereinafter the "Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article I. LICENSE FEE Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time license fee of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,5 00.00). Article II. LICENSOR GRANTS RIGHT In consideration of the license fee to be paid by the Licensee and in further consideration of the covenants and agreemems herein comained 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 an overhead 13.2 kv wireline crossing (hereinafter the "Wireline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print marked Exhibit "A". Article III. CONSTRUCTION, MAINTENANCE AND OPERATION The grant of right herein 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", hereto attached. Article IV. IF WORK IS TO BE PERFORMED BY CONTRACTOR If a contractor is to do any of the work performed on the Wireline (including initial construction and subsequent relocation or substantial maimenance and repair work), then the Licensee shall require its contractor to execute the Railroad's for Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreemem and understanding of its terms, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's premises without first executing the Contractor's Right of Entry Agreement. Article V. INSURANCE mo The Licensee, at its expense, shall provide the Licensor a Certificate of Insurance, identifying Folder No. 2074-97, issued by its insurance carder, confirming the existence of such insurance and that the policy or policies contain the following endorsement: UNION PACIFIC RAILROAD COMPANY is named as an additional insured with respect to all liabilities arising out of the existence, use or any work performed on or associated with the 'Wireline' located on Railroad right-of-way at Mile Post 721.180 on the Choctaw Subdivision, at or near Denton, Denton County, Texas. B. Licensor agrees that all of its Licensee's insurance requirements may be satisfied by self- insurance. C. All insurance correspondence shall be directed to: Folder No. 2074-97, Union Pacific Railroad Company, Real Estate Department, 1800 Farnam Street, Omaha, NE 68102. Article VI. AMENDMENT OF EXHIBIT B Sections 7(b) and 10 of Exhibit "B", hereto attached are hereby amended to read as follows: Section 7(b) in addition to other indemnity provisions in this agreement, the Licensee shall indemnify and hold harmless the Licensor from and against all costs, liability and expense whatsoever (including, without limitation, attorney's fees, court costs and expenses) arising out of any act or omission of the Licensee, agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Licensor's property, and (2) any injury to or death of any person employed by or on behalf of any telecommunications company and/or its contractor, agents and/or employees, on Licensor's property. Licensee shall not have or seek recourse against Licensor for any claim or cause of action by 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 Licensor's property. Section 10 INDEMNITY As used in this section, "Licensor" includes other railroad companies using the Licensor's 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 court costs and attorney's fees which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and (b) damage to or loss 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). As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees, to the extent permitted by law, to indemnify 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 Wireline or any part thereof; or 2. The presence, operation, or use of the Wireline or contents escaping therefrom, except to the extent that the Loss is caused by the sole and direct negligence of the Licensor. ARTICLE VII. TERM This agreement shall take effect as of the 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 in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY By: Contracts Representative APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: CITY OF DENTON By: Witness: X City Manager PLACE ARROW INDICATING NORTH / IRECTION RELATIVE TO CROSSING -, / ,- -- ~.r . FT. (SEE NOTE 7 ~ 81 -TO ~ [ DESCRIBE F[X~ OBJECT) (SEE NOTE 8) [ D]STANOE AL~ ~CK F~ SECT]ON LINE ~R° S OVERHEAD WlRELINE WWW. UIDFT'. corn CROSSING OVER 750 VOLTS NOTES (NOTE: THIS DIMENSION REOUIRED IN ALL CASES. AT LOCATIONS NOT USING SECTIONS~ DISTANCE TO A LEGAL SURVEY LINE IS REQUIRED) (S;r NOTE 5) I __FY, (MIN. 4' ) (SEE NOTE S) ,.: _- .. I FT. ¢ MIN. SO' I (SEE NOTES 4, 5 B 61 NOTE: ALL AVAILABLE DIMENSIONS MUST BE FILLED IN TO EXPEDITE THIS APPLICATION. SEE NOTE T OF CROSS] NG) (O~CRIflE FIXED ~JECT) (SEE ~TE RR' S V IS THERE A SIGNAL OR COI~NICATION.,.~..EL[NE NEAR THE T~A,CKS? MAxl,.,, GROu.D ~AT ~E OF FACIL[~ JILL LINE BE SERVIN~ IF A N~ POWER SUBSTATION 15 TO BE ~ILT II,IN IIZ MILE OF R~ ~T 1S ~X= OPERATING ~RENT TO G~N~ A~$I RESIST~CE TO GR~N~O~ FAULT CURRENT TO ~UN~.~ ~ CIRCUITS TO BE CARRI~ ON ~SED IIR~INE; ~ VOLTAGE TO ~ OF S~ID ffi ~OSS[NG SPA~ L~TH IOO FT.; ~L CONDUCTOR SAG ~'~ ~[~ AT~-F. ADJOINING SPA~= L~TH FT.; ~L CONDUCTOR SAG ~ LE~ ~.; ~R~L CONDUCTOR SAG ~E~ T[~ER LENGTH FT. D~ OF SETT[~ FT. HEIST ABOVE GROUND FT. CLASS OR ~TT A~ TOP D]~NS[~ { IF STE~ T~ERS ~E ~LOYED~ ~H[SH DETA[L ~AI[N~} H~D ~Y~ N~ER ON ~ ~LE ~ S[ZE ~ STRENGTHs; L~ TO -- ( NEAREST R.R. TOWN) ALL HORIZONTAL DISTANCES TO BE MEASURED AT RIOHT ANGLES FROM ~ OF TRACK, EXCEPT AS NOTED. FOR MINIMUM ABOVE TOP-OF-RAIL CLEARANCEs, REFER TO I[REL[NE CLEARANCE CHART. MINIMUM 4' CLEARANCE REQUIRED ABOVE SIGNAL AND COMIdUN[CAT[ON L[NES~ REFER TO JIREL[NE CLEARANCE CHART. POLES (INCLUDING STEEL STRUCTURES) MUST BE LOCATED MEN. 50' (200' FOR LINES CARRING I00 KV OR MORE) OUT FROM ~_ OF OUR MAIN, BRANCH~ AND RUNNING TRACKS~ CTC S[D[NOS~ AND HEAVY TONNAGE SPURS. POI.ES (INCLUDING STEEL POLES) MUST BE LOCATED A MIN[MUM DISTANCE FROM OUR SIGNAL AND COMMUNICATION L[NES EOUAL TO THE HEIGHT OF THE POLE ABOVE OROUNDL[NE OR ELSE BE GUYED AT RIOHT ANGLES TO OUR LINES. POLE LOCATION ADJACENT TO INDUSTRY TRACKS MUST PROVIDE AT LEAST I0' CLEARANCE FROM ~.. OF TRACK WHEN MEASURED AT RIGHT ANGLES. IF LOCATED ADJACENT TO CURVE TRACK, THEN SAID CLEARANCE MUST BE INCREASED AT A RATE OF I-I/~" PER DEGREE OF CURVE TRACK. POWER LINES MUST BE LOCATED A MINIMUM OF 500' FROM THE ENO OF ANY RAILROAD BRIDGE OR 300' FROM ~. OF ANY CULVERT. ALLOWABLE FIXED Oi]JECTS INCLUDE: BACKWALLS OF BRIDGES; ~. OF ROAD CROSSINGS B OVERHEAD VIADUCTS (GIVE ROAD NAME)~, OR ~ OF CULVERT is .I.ELI.E ~SSI.G .IT.~, DEDICATED STRm ?_x/ .ES; IF YE~ NAME OF STREET '~NNI~'. EXHIBIT "A" DISTRIBUTION LINE ~x/ OR TRANSMISSION LINE (~,o~ RAILRO4D U~E OI1.¥ - DO ~ mlT~ tH THIS UNION PAC!F!C RA!LROAD CO. I ILI~IVIIIOM! p.7¢1. I¢c> E.s. OVERHEAD W I REL I NE CROSS I WARNING SIDE GUYS= N~ EACH JAY ~ 5IZE ~ 5TRENGTH~I LEAD IN ~LL OCC~ONS, U. P. C~3~JNICAT[ONS o~d,~n~rr ~JST ~OSSA~: ~G_ ~ OR ~LE ;MATERIALF~ t 51ZE ML''~ BY. ~ACT~ IN ~V~CE OF N~ I~ ~ ~[NE ~IS~ INSULATORS." ~OR ~ ;~FAC~ER'$ ~ CAT~UE ~. L~TION ~ FIB~ OFTIC C~r- ~E: I- C~OUCTOR ATTAC~TI ~ ~ CL~S IF ~ER LINE PARALLELS TRACK WITHIN I/Z MIL~ I~L~E DIAGRAM SHOIING SPACING ~D C~FIGURATION OF WIRES INCL~[~ SHIELD IIRE~ APPLICANT HAS C~TACTED I-~33~919~ ~P. CO~NICAT[ON DEPAR~ENT, AND HAS DETE~INED FIBER OPTIC CABLE WL×.EXB 9801 Form ^pprovcd, A¥?-La~v EXHIB B Section LIIvilTATION AND SUBORDINATION OF RIGHTS GRANTED. (a) The foregoing grcmt d right is subject ,:md subordinate to the prior and continuing right and obl/gation o{ the L/censor to use end mamtc~n its entire property including the right and power of the Licensor to construct, maint~n, repcar, renew, use, operate, change, mod/~y or relocate rczilro~d tracks, signal, commumcation, fiber optics, er other wirelmes, pipelines and other fc:ctlttles upon. along or across amy or all pm'ts o{ its properly, all or any of which may be freely done at any time or times by the Ltcensar w~thout lic~blllty to the Licensee or to any other pon'fy for compensation or dcn'nages. (b) The foregoing grant is also subject to cdl outstanding superior rights (including tho~e in favor o{ licensees and lessees of the Licensor's properW, crud others) and the right of the Licensor to renew and emend the serene. ,:md is made w~thout covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTE. lq. _ANCE AND OPEP, A~ON, (a) H the W/reline or any pan thereof is to be located above the top of the rails of any track or cornmunica~on and signal lines, mclucllng stctic wires, overhead clearance provided by the Wirehne shall be no less th,-,n that shown on Exhibit A. The W~rel/ne shall be constructed, operated, m~tained, repaired, renewed, modified and/or reconstructed by the Licensee tn strict conformity with the Specifications prescribed in the current issue o{ the National Electrical Sofet7. Code of the Amertccm National Standards Institute. In the event such Specifications conflict in any respect with the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but in all other respects the Specifications shcdl apply. (b) All work performed on property of the Licensor in connection with the construction, mcin[enance, repent, renewal, modification or reconstruction of the W/reline shall be done to the satisfaction of the Licensor. (c) If the W/reline is cm existing one not conforn~ng in its construction to the above provisions of this Section 2, the Licensee shall, vathm ninety (90) days ~ter the date hereof, reconstruct it so as to conform therewith. (d) The Wi.reline shall be constructed, maintcined crud operated by the Licensee in such manner as not to be or constitute hazard to aviation. With respect to the Wireline the Licensee, without expense to the Licensor, w~ll comply with all requ/rements of law end of public authority, whether federal state or local, includ/ng but no! lirmted to aviation authorities, (e) In the operation of the Wireline, the Licensee shall not trcmsmh electric current at a chfference o{ potent/al tn excess of the voltage indicted on Exhibit A. If the voltage indicated is in excess of seven hundred fifty (750) volts, and the Wireline is, or is to be. buried at any location on the proper'B, of the Licensor outside track ballast sections or roc~dbed, the Licensee shall install metalhc conduit, or non-metallic conduit encased in a minimum of three (3) inche~ of concrete with a mimrnum of four (4) feet of ground cover the entire length of the Wlreline on the property of the L/censor. A W/reline buried by removal of the soil shall have, at a depth of one (1) foot beneath the surface of the ground dlrect]y above the Wireline, a mx (6) inch wide warmng tape bearing the warmng, "Danger-High Voltage," or equivalent word/ng. A Wireline encased in conduit, jacked or bored under the proper7 of the Licensor, must be identified by placing waraing signs, to be instal]ed ,:md properly mcmut~mned at the expense of the Licensee, at each edge of the Licensor's property. The Licensee shall not utilize the signs in lieu of the wcn"nmg tcrpe where portions of the casing are instcdled by direct burial. Section NOTICgDF COMMEN~ OF WORK. ~f ar~ emergency should arise requiring immediate attention, the Licensee shall provide as much notice os practicable to Licensor before commencing any work. In all other situations, the Licensee shall notify the hcensar at least ten (If)) dcys (or such other t~me as the Licensor may allow) in advcmce of the commencement of any work upon property o~ the Licensor in connection with the construction, mcnntenance~ repair., renewal, mod~hc~ion, reconstruction, relocation or remov~ of the Wirehne. Ail such work shcdl be prosecuted diligemty to completion. wlx.exb Pagc I et'4 Exhibit B WLX.EXB 980} 12 Form Approved, AVP-Law Sec~on 4, ~ICENSEI~, TO BEAiR ~NTIRE EXPENSE. The Licensee shall bear the entire cost and expense recurred in connection with the construction, maintenance, repCnr and renewal and any crud all mcx:hfication, revision, relocation, removal or reconstruction of the Wireline, including cmy and all expense which may be incurred by the Licensor in connection therewith for supervision or inspection, or otherwise, Section 5, tlgINFORCEMENTRELOCATION OR REMOVe.OF WIREL~E. (a) The license herein granted is subject to the needs and requirements of the Licensor in the operation of its railroad and in the improvement and use of its property, and the Licensee shall, at the sole expense of the Licensee, reinforce or encase the W~rellne (if it is cm underground facility) to the satisfaction o{ the L/censor, or m~ve all or cmy portion of the Wirelme to such new location, as the I..tcensor may designate, whenever in the furtherance of its needs and requirements, the Licensor shall find such action necessary or desirable. (b) All the terms, conditions crud stipulations herein expressed with reference to the Wireline on property of the licensor in the location hereinbefore described shall, so far as the W/reline remmus on the property, apply to the Wireline as modified, changed or relocated vathm the contemplation of th/s section. Section 6. II--CE. In the operation crud maintenance al the W/reline the Licensee shall take all suitc[ble precaution to prevent any interference (by induction, leakage of electricity, or otherwise) with the operation of the signal, communication lines or other installations or facilities of the I,~censor or of its tenants; and if. at any time, the operation or maintenance of the Wirehne results m any electrostatic effects which the L/censor deems undesirable or harmful, or causes interference with the operation of the signal, communication lines or other installations or facilities, as now existing or which may hereafter be provided by the Licensor and/or/ts tenants, the Licensee shall, at the sole expense of the Licensee, immediately take such action as may be necessary to el.tm/nate such inteflerence. Section 7. PROTECTION OF FIBER,OPTIC CAbLE_SYSTEMS. (a) Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is o{ 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 at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the L/censor's premises to be used by the Licensee. If it is, Licensee vail telephone the telecommunications company(les) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at J~censee's expense, and will commence no work on the right o! way until ~ such prc~ection or relocation has been accomplished. Licensee shall indemnify and hold the Licensor h~,,less from and against all costs, liability crud expense whatsoever (including, without hmitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph, harmless from ,:nd against all costs, liability and expense whatsoever (including, without limitation, :: ~?~;~'~,~:.:~ ccu~ costs and expenses) caused by the neghgence of the L~censee. ~ts contractor, agents ~::,,'or. ~ resulting m (1) any damage to or destruction of ,:my telecommunications system on Li~ensor'o :~;a~?, (2-'~ any injury to or death of any person employed by or on behcd.f of cmy telecommunications ~;~'/:~-' its contractor, agents and/or employees, on Licensor s property, except if such costs, li 'a.b~ty or~aused solely by the direct active neghgence of the Licensor. Licensee further agrees that it sh~l~3;~seek recourse ag~nst Llcensar for any clcnm or cause of act/on for alleged loss of profit~ervic oe o.tr h. er .c. onsequential damage to ~ telecommuniccrti~~F.w~y using Licensor's Sect,on 8. CLArMS_AND LIENS FOR LABOR..AND MATERIAL. L/ / (a) The Licensee shall fully pay for all materials joined or dflxed to crud kl]0or performed upo~T~pert7 of the Licensor in connection with the construction, mal.ntenc~ce, repafi', renewal, modtficat~on or reconstruction of the Wi.reline, ond sho]l not permit or suffer any mechanic's or matericdman's lien of any kind or nature to be enforced against the property for arrly work done or materl~s furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indernn/iy and wlx.exb Page 2 of 4 £xhibi~ B WI..X.EXB 9g0112 Form A~pr~vcd, AVP-Law hold h,,,raless the Licensor agmnst crud from cmy c~d all ].tens, claims, demands, costs and expenses of whatsoever nature in cmy way connected with or growing out of such work done, lczbor performed, or materials furnished. (b) The Licensee shall promptly pay or chschcn'ge all taxes, ch~ges crud asses~ment~ levied upon, in respect to, or on account of the Wi.reline, to prevent the same from becoming c~ charge or lien upon property of the Licensor, and so that the tc~es, ch~ges and assessments levied upon or in respect to such property shall not be/ncreased because of the location, construction or mcm~.tencmce of the Wireline or any improvement appliance or fixture connected therewith placed upon such property, or on account of the Licensee's interest therein. Where such tax, chon'ge or assessment may not be sep~ately 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 cm equitable proportion of such taxes determined by the value of the Licensee's property upon property of the Licensor as comp~ed with the entire vcdue of such property, Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the e~ent the Licensor authorizes the Licensee to take down any fence of the Licensor or in cmy m~a'mer move or disturb cmy of the other property of the Licensor in connection with the construction, mCnntenance, repent, renewal. modification, reconstruction, relocation or removat of the Wireline, then in th~ event the Licensee shall as soon as possible and crt Licensee's sole expense, restore such fence crud other property to the sm'ne condition as the same were in before such fence was taken down or such other property was moved or disturbed, and the Licensee shall indemnify crud hold hm'mless the Licensor, its officers, agents crud employees, against and from any and all licrbili~/, loss, drainages, penalties, claims, demands, costs crud expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to or dec~h of persons whomsoever, or dcn'nage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruct/an grows out of or ch'ieee from the taking down of any fence or the moving or disturbance of any other property of the Licensor. Section 10. INDEMNITY. location of the Licensee's installation and their officers, agents, and employees: "Loss" includes loss, demands, c~ctions, causes of action, penalties, costs, and expenses of whatsoever ncrture, fnciu,~nq ,:our~ e,~;~d fees, which may result from: (a)injury to or death of persons whomsoever (Including the L~c~:~A~[icers', c~gents, and employees, the Licensee's officers, agents, and employees, as well as any other pereS(b)damage to or loss or destruction of property whatsoever (Including Licensee's property, damage to tl~e~~ tracks, equipment, or other property of the Licensor, or property in its care or custody). (b) ~,.As,, a major inducement =d in consideration of the ~~-p%~mtssion herein gr=ted, the L/censee agrees to ma~,~,mfV and hold h~,,,less the Licensor from any Loss w~due to or arises from: ~" ~ ~ 1. The prosecution of ~z,w'~t: contemplc~ted by th/s Agreement including the installation, construction, % % mmntenance, repot, ~icatlan, reconstruction, relocation, or removal of the Wireline or any p~t ~ tt' therecrI' or 2~~sence, operation, or use of the Wireline or electric current conducted thereon or escap' g Section 11 REMOVAL OF Wl~.t thrE UI:~N TERMINATION OF AGI~vfENT. Prior to the terrmnation of this Agreement howsoever, the Licensee shall, ~ L/censee's sole expense, remove the Wirelme from the property of the Licensor and restore such property to as good a condition as it was in before the Wireline wc~ originally constructed, ali to the satisfaction of the Licensor. If the Licensee fails to do the foregoing, the ~censor may perform the work of remov~ and restoration ~ the expense of the Licensee. The Licensor shall not be liable to th~ L/censee for any dan'~age sustc~ned by the Licensee as a result of the removal of the Wlrehne by the Licensor as in this section provided, nor shall such action prejudice or irnpmr any right of c~ctlon for dc~'nages or otherwise that the Licensor may, at the time of such removal, have agcxinst the Licensee. wix.ab Page 3 of 4 Exhibit B WLX.EXB 9'80112 Form Approved. AVP-Le.w Section 12. WAIVER OF BREACH.. The wCnver by the Licensor of the breach of any condition, covenant or agreement herein contc~ned to be kept, observed and performed by the Licensee shall in no way unpc~tr the right of the Licensor to cn,~l itself of any remedy for any subsequent breoch thereof. Section 13. TERIvf[NATION. (a) If the Licensee does not use the right herein granted ar the Wi.reline for one (1) year, or if the Licensee continues m defm. dt in the performance of cmy covenant or agreement herein contolned for a period o~ thirty (30) ciays cdter v, rrttten notice from the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by written notice. In addition to the provisions of subparc~j'raph (a) above, this Agreement may be terminated by written notice given by either pm-ty hereto to the other on any date in such notice ~tated, not less, however, thcm th/ny (30) days subsequent to the date upon which such notice shall be given. (c) Notice of default and notice of termination may be served personctly upon the Licensee or by mcf~ng to the last known adclress o~ 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 liability, accrued or otherwise, which mm/have arisen prior thereto. Sect/on 14, AGR~ NOT TO BE AS SIG1VED, The Licensee shcdl not assign this Agreement, in whole or in part, or any rights herein grcmted, w~thout 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 voluntm'y, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the Ltcermor, sh=ll terrvanate this Agreement. Section 15, SUCCESSORS AND ASSIGNS. Subiect to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the pca'iies hereto, their heirs, executors, admin/str~ors, successors and assigns, wlx.~xb Pa~e 4 or'4 £xhlbi~ O Agenda 02-013 04/16/02 #21 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: April 16, 2002 Parks and Recreation Department Dave Hill, 349-8314 ->~ SUBJECT Consider adoption of an ordinance of the City of DeNon naming the Aquatic Cemer project; and declaring an effective date. BACKGROUND The "Park and Facilities Naming Policy" (Exhibit B) establishes guidelines and procedures for the naming of parks and recreation facilities. As the Aquatic Cemer project nears the construction phase, the need to establish the name of the facility is necessary to develop signage and graphics for the project, and to begin marketing and advertisemem. As provided for in the policy, the Chair of the Parks, Recreation and Beautification Board established a committee, responsible for recommending a name. The Naming Committee developed a process and a set of criteria to guide the decision-making. The criteria suggested that the name: Focus on the theme or concept of the aquatic center. Generate an image that is marketable Create a sense of fun, action and excitement Lend itself to colorful graphics / logo Should be "water-based" The Naming Committee developed an extensive list of possible names. The list was generated from several sources including input from Horizon Amusements, the Marketing Plan consultant, research of aquatic facilities throughout the country, and original ideas generated from committee members. At their final meeting, the group voted on the names submitted and prioritized the top five choices. Staff was then given the opportunity to share the prioritized list with Horizon Amusemems prior to Parks, Recreation and Beautification Board action. The name "Water Works Park" was given the highest priority by the Naming Committee and meets the criteria established by the committee. The name is highly marketable and will easily lend itself to graphics, logos and signage, and expresses a fun, family-oriemed atmosphere. This is particularly critical to this facility due to the need to generate revenue that will offset the operating and maintenance costs. The Naming Committee recognized the importance of creating a marketable image, beginning with the name. The report of the Naming Committee is attached (Exhibit C). The Parks, Recreation and Beautification Board also recognized that the Denton Independent School District would most likely recommend a separate name for the indoor pool facility. Therefore, neither the Naming Committee, nor the Parks, Recreation and Beautification Board made a recommendation on the name of the indoor pool. "Water Works Park" will only apply to the outdoor portion of the aquatic center. OPTIONS 1 City Council may take any of the following actions: 1. Approve the ordinance to name the outdoor portion of the aquatic center, "Water Works Park". 2. Deny approval of the ordinance and request the Parks, Recreation and Beautification Board recommend a different name to the City Council for consideration. RECOMMENDATION Staff recommends approval of the name "Water Works Park" for the outdoor portion of the aquatic center project. ESTIMATED PROJECT SCHEDULE The following is the proposed completion schedule for the Aquatic Center project: April 1, 2002 April 7 April 30 Mid May Final Construction Drawings returned to consultant after staff review. Advertise project for Bid through Charter Builders (Construction Manager) Open Bids Establish Guaranteed Maximum Price (School Board Meeting) Construction is expected to begin mid-May 2002 PRIOR ACTION/REVIEW At their March 25, 2002, the Parks, Recreation and Beautification Board concurred with the Naming Committee recommendation and unanimously recommended the name "Water Works Park" for City Council consideration. FISCAL INFORMATION This action has no direct or immediate fiscal impact on the General Fund budget. The name, along with other design and theme elements will have a positive impact on the revenue generation capacity of the facility. ATTACHMENTS Exhibit A Ordinance Exhibit B Park and Facilities Naming Policy Exhibit C Aquatic Center Site Naming Committee Report, dated March 12, 2002 Exhibit D Parks, Recreation and Beautification Board Minutes for March 25, 2002 Respectfully submitted by: Prepared By: Janet Simpson, Assistant Director Parks and Recreation Department Ed Hodney, Director of Parks and Recreation ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON NAMING THE AQUATIC CENTER PROJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton and the Denton Independent School District have entered into an interlocal Agreement to design and construct an Aquatic Center; and WHEREAS, the City of Denton desires to name the outdoor portion of the Aquatic Center in accordance with the Park and Facilities Naming Policy; and WHEREAS, the City of Denton recognizes that the Denton Independent School District may desire to name the indoor natatorium under its own policies; and WHEREAS, the chairperson for the Park and Recreation Board appointed a committee to develop a recommendation for a name for the Aquatic Center Project; and WHEREAS, the naming committee proposed that the Aquatic Center be named "Water Works Park"; and WHEREAS, the Parks and Recreation Board recommends that the Aquatic Center be named "Water Works Park"; and WHEREAS, the City Council has determined that the recommendation complies with the policy and guidelines regarding the naming of parks and park facilities and has also determined that it would be proper and fitting to name the Aquatic Center: "Water Works Park"; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The outdoor aquatic facilities for the Aquatic Center Project shall now and hereafter be known and designated as "Water Works Park". SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Park and Facilities Naming Policy Purpose: Establish general guidelines and procedures for the naming of parks and recreation facilities. b) Provide name identification for individual parks. c) Provide name identification wherever appropriate for special buildings, structures, facilities, areas/gardens. Provide for citizen input into the process of naming parks and facilities as enumerated above. e) Insure control of the naming of parks and facilities by the Parks and Recreation Department and City Council through the recommendations of the Parks and Recreation Board. General Guidelines: Park property may be named after streets, geographical locations, historical figures, events, concepts, or local, State or National leaders. Park property may also be named for individuals or groups where major donations of land, funds or other exceptional contributions toward the development, maintenance and/or operation of a park or facility have been made by the nominated individual or group. b) With the exception of major donations, parks and recreation facilities shall not be named for living persons. In cases involving the names of local community leaders, the following guidelines shall apply: 1) the nominated individual shall have made exceptional contributions to Denton parks and recreation and/or the community; 2) there shall be a clear and demonstrated consensus for the nominated name. c) Parts or areas within a park or recreation facility may be given a name which is different than the park or building. Such parts or areas may include (but are not to limited to) gardens, playgrounds, athletic fields, structures, swimming pools and meeting rooms. Names for such facilities shall be established by the same guidelines and procedures applied to parks and buildings. The naming of a park, a facility or parts of a park or facility shall not be accepted as a condition of donation, unless the value of the donation exceeds $15,000 or 51% of the total project cost, whichever is greater. Improvements valued at less than $15,000 will not be affixed with names. e) Once a name has been established, the Director of Parks and Recreation will be responsible for the installation of appropriate signage and markers within a reasonable time. Contributions which do not merit naming and which are valued at less than $15,000 and comprise less than 51% of the project cost may be recognized. Gifts which are valued at greater than $500 and comprise at least 25% of the project cost may be recognized by plaque or marker. At the request of the donor, the Parks and Recreation Department will provide the plaque or marker for contributions of $2,500 or greater. Such recognition for contribution of less than $2,500 must be provided by the donor. All plaques and markers shall meet the specifications of the Parks and Recreation Department. Should a recognition plaque or marker require replacement, such replacement shall be the responsibility of the original provider of the marker or plaque. 3. Name Changes: Requests for name changes may be considered by the Parks and Recreation Board. The aforementioned guidelines for naming a park or facility shall generally apply to name changes. b) In reviewing a request for a name change, the Board will give special consideration to any legal agreements or authorized written promises which were made when the original name was established. c) If a change is requested in the name of an existing park or facility, such request will not be acted upon by the Board until a sign stating the request has been posted on the affected property for a period of 45 days. The sign should direct comments to the Director of the Parks and Recreation Department. 4. Procedures: Names for new parks shall typically be established within 90 days from the date of land acquisition. The name of new buildings shall be established prior to the completion of construction. Names for parts or areas of parks and facilities may be established at any time. b) The chairman of the Parks and Recreation Board shall name a committee that will be responsible for recommending a name for all park lands and facilities to the Board. c) The committee shall be responsible for research, study, and recommendation of a proposed name to the Board. Rationale for the selection of the recommended name shall be given in writing. Any recommendation which involves the name of a person shall include the following: · a biographical or informational sketch; · rationale supporting the nomination; · the name(s) of the person(s) or supporting group(s) responsible for the nomination. d) The Parks and Recreation Board shall approve or disapprove of the name recommended by the committee. e) g) If the committee's recommendation is disapproved by the Board, then the matter may be referred back to the committee for further action. All recommended names for such facilities must be approved by a majority vote of the members of the Parks and Recreation Board. Upon approval, the recommended name shall be forwarded to the City Council for their consideration and final decision. FSadmin~ADVISORY BOARD~Park and Facilities Naming Policy -6048.doc Aqua Center site naming Committee Report To: Ed Hodney Director Denton Parks and Recreation Dept. Copy to: Don Edwards Chairman, PARD Board The Site naming committee consists of: Brandon Barnes Teresa Andress Geri Aschenbrenner Cassandra Berry Teri Rheault, Park Foundation Representative The following report is a smmmry of the actions taken by the Aqua Center site naming Committee. The committee met on Thursday, Feb. 28 and Friday, March 8. at the Sam Houston Elementary School. In attendance were Barnes, Andress and Aschenbrenner and Janet Simpson on Feb. 28 and Ed Hodney on March 8. Groups of names and criteria were established for the selection of 5 names to submit to the PARD staffand Aqua Center marketing personnel to review in light of marketing potential and logo design. Each of the committee members were invited to submit five of their choices, at the following meeting, for committee review and selection. The two absent members were sent a personal letter by the Chairman reviewing the meeting and extending an invitation to submit their five suggested names by attending the second meeting or by telephoning their choices to the Chairman. There was no response. At the second meeting on March 8, The committee, of Barnes, Andress, and Aschenbrenner reviewed the 15 submissions and, through a priority number voting system of attaching a 5,4,3,2,1 to their top choices, were able to identify the top five names. They are as follows. Water Works Park Family Water Works Aqua Holiday Park Aqua Splash Park Oasis Water Park Many of the other nominations submitted could easy be adapted for areas of'the park, i.e. Food Plaza, Children's Cove(Water Slide area) and Picnic Lagoon. etc. The plan is after the review by the staffand marketing personnel, either the committee or the staffwill present their finding to the PARD board at the next meeting. The PARD Board will select from the five nominations, 3 in priority ranking, to recommend to the City Council for a final selection. Brandon Barnes c/ Committee Chairman DRAFT Parks, Recreation and Beautification Meeting March 25, 2002 City Hall Conference Room Members present: Don Edwards, Dalton Gregory, Geri Aschenbrenner, Dale Yeatts, Brandon Barnes, and Cassandra Berry. Members absent: Teresa Andress. Staff present: Bob Tickner, Emerson Vorel, Ed Hodney, Janet Simpson, Janie McLeod, and Jim Mays. Chairman Don Edwards called the meeting to order at 6:00 p.m. AWARDS AND RECOGNITION. Emerson Vorel introduced Jim Mays who was recently promoted to Program Area Manager for the Parks Operations division. Emerson also said that the department won a Texas Parks and Recreation Society (TRAPS) State award for the City Scapers program. APPROVAL OF MINUTES. Dale Yeatts made a motion to approve the minutes of the February 25~h meeting and Geri Aschenbrenner seconded the motion. The motion passed unanimous. ACTION ITEMS Consider approval resolution allowing Metzler's Food and Beverage to sell alcoholic beverages at the Cinco de Mayo Celebration on May 4, 2002. Janet Simpson introduced Nicole Vazquez, chairperson of the Cinco de Mayo committee. Janet said that each year a representative from the committee makes a request of the Board to recommend to City Council approval for the sale of alcoholic beverages at the event. She said that there would be an increase in security as a precautionary factor and not because of any previous problems. Nicole asked for a multi-year contract for the sale of alcoholic beverages at Cinco de Mayo so they wouldn't need to come before the Board each year. Ed said that more information would be needed before a contract could be arranged and that staff would bring the topic back to the Board with more information. Ed asked that Janet and Nicole work on the requested contract together. ACTION: Dalton made a motion to approve the request recommend to City Council to approve the sale alcoholic beverages at the Cinco de Mayo event on May 4th. Brandon seconded the motion and it passed unanimously. Dalton asked why the Arts Festival is not required to make requests to Council to sale alcoholic beverages at their event. He said that consistency is important when dealing with the various events that sell alcohol. Ed assured the Board that there is consistency and no discrimination between organizations. Ed added that the Art Festival has an ongoing contract with the City through its funding with hotel/motel tax and deals primarily with the CMO rather than the Parks Department. Ed said that a more formal multi-year policy for selling alcoholic beverages in the Civic Center Park would need to be developed and presented to City Council for approval. DRAFT Consider a request d~hom City of Denton Electric Engineering Department to construct an electric line across the~ontage of Mack Park. Bob said that the City's Electric Engineering Departmem has requested the use of park land for the purpose of relocating an electric transmission line to service a section of the city near Mack Park. Bob said there be no major impact on currem park operation s or programs. Bob added that the lines will be placed underground and wouldn't change the use of the park. The Departrnem would be compensated for the use of the park land and the Funds would be used to improve the park. ACTION: Dale Yeatts made a motion to approve the request to lay electrical lines at the entryway of Mack Park on McKinney Street. Geri Aschenbrenner seconded the motion and it passed unanimously. Receive a report and make a recommendation on the naming of the aquatic center. Brandon Barnes, chair of the Aquatic Naming Committee, presented the committee's report. Brandon said that the process for the naming was the committee members researched and brainstormed a list of possible names. The committee then prioritized the names. Staff concurred with the naming committee that the name given first priority was marketable. ACTION: Brandon Barnes made a motion to recommend "Water Works Park" to City Council as the name of the water park subject to review of the marketing firm. Geri Aschenbrenner seconded the motion and it passed unanimously. Aquatic Center Operation Agreement. Janet said the Parks and Recreation Departmem (PARD) and DeNon Independem School District (DISD) staff have completed a draft Operations Agreemem, and are in the process of finalizing minor details in the documem. The Operations Agreemem will be a binding agreemem approved by both the City Council and the DISD School Board and will provide for the maimenance and operation of the Aquatic Facilities once construction is completed. This agreement is an addendum to the Interlocal Agreement, which was approved in May 2001, and covered the design and construction of the project. Dalton Gregory had to leave to attend another meeting. ACTION: Dale Yeatts made a motion to approve the operations agreement and Brandon Barnes seconded the motion. The motion passed unanimously. DIRECTOR' S REPORT Project Status Report. Ed said he would respond to any questions regarding the report. were no questions. There Keep Denton Report. There were no questions or commems regarding the report. OTHER ITEMS Brandon asked about the status of the sign for the Mabel Craven tennis cemer at Avondale Park. Emerson said that options are being considered and a recommendation should be ready soon. Ed said that Cathy Avery would contact Brandon to provide more information. DRAFT Ed distributed a letter from the North Texas Woman's Soccer Association requesting a location to play soccer. Ed said he would copy the Board with his response. There being no further business, the meeting adjourned at 7:10 p.m. This page left blank intemionally. Agenda 02-013 04/16/02 #22 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: April 16, 2002 General Government Betty Williams, Director of Management & Public Information Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance authorizing the City Manager to sign the Contract for Professional Services between the City of Denton and C2 Consulting Services, Inc., to provide cable consultant services with respect to Charter Communications cable franchise renewal filing; ratifying prior actions; and providing an effective date. BACKGROUND: Our Current Cable Television Franchise Agreement with Charter Communications (Charter) expires on November 15, 2003. The current 15-year franchise was initially granted to Sammons Communications, transferred to Marcus Cable Associates in November 1995, and transferred again to Charter Communications in March 1999. Charter submitted to the City the required written notice requesting the commencement of the renewal process. This requires the City to begin the future cable-related community needs assessment, conduct a review of Crafter's past performance, and make a determination of Crafter's financial, legal and technical capabilities to meet our future needs. This renewal process can be quite complex and will involve many stakeholders. During this franchise renewal we have an opportunity to obtain many benefits for the City and the community. In order to conduct a thorough determination of future cable-related community needs, conduct a review of Charter's past performance and compliance with the cable franchise agreement, and make a determination of Charter's financial, legal and technical capabilities, staff recommends contracting the services of an experienced telecommunications consultant to assist with the first stage of the renewal process. C2 Consulting Services, Inc., will provide specific services, as listed in attached proposal, to various departments including the Public Information Office and the City Attorney's office. These services will determine whether Charter's non-compliance would justify termination of the agreement or seeking of liquidated damages. OPTIONS: 1. Approve the contract for professional cable consultant services. 2. Disapprove the contract for professional cable consultant services. C2 Consulting Services, Inc Page 2 of 2 RECOMMENDATION: For the reasons set forth herein staff recommends approval of this contract FISCAL INFORMATION: Funding for this agreement, not to exceed $34,000, will come from Fund 860, Account 7854. Prepared by: c Information Officer Respectfully submitted: t~etty W~liam~ Director of Management and Public Information Attachments: 1. Ordinance 2. Professional Services Agreement 3. C2 Consulting Services, Inc. proposal Page 2 S:\Our Docmments\Ordinances\02\CHARTER COSERV C2.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH C2 CONSULTING SERVICES FOR LEGAL SERVICES FOR THE AMENDMENT OR EXTENSION OF THE CHARTER CABLE FRANCHISE AGREEMENT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public interest to engage the firm of C2 Consulting Services to provide technical services in determining compliance v/th the Cable Television Franchise Agreement for the amendment or extension of the Charter Cable Franchise; and WHEREAS, because of Federal Communications Commission ruling of March 14, 2002, and the announcement of withholding franchise fees, technical issues have arisen on the compliance of Charter with The City of Denton's Cable Television Franchise Ordinance; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional technical services, as set forth in the Professional Services Agreement for Consulting Services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the recitations set forth and contained in the foregoing preamble are expressly incorporated by reference into this Ordinance. SECTION 2: That the City Manager or his designated representative is hereby authorized to execute a Professional Services Agreement for Consulting Services with C2 Consulting Services for professional technical assistance and related services pertaining to compliance with the Cable Television Franchise Agreement and its renewal. SECTION 3. That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of C2 Consulting Services and the ability of C2 Consulting Services to perform the professional services needed by the Gty for a fair and reasonable price. SECTION 4: That the expenditure of funds as provided in the attached Agreement for Professional Legal Services is hereby authorized. S:\Our Docmments\Ordinances\02\CHARTER COSERV C2.doc SECTION5: That the above and foregoing Professional Services Agreement for Consulting is hereby ratified, confirmed, and retroactively approved, and shall be effective from and after December 1,2001 SECTION 6: That except as otherwise provided in Section 5 above, this Ordinance shall become effective immediately upon its passage andapproval. PASSED AND APPROVED this the day of ,2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 S:\Our Documents\Contracts\02\C2 Consulting -Charter.doc. dot PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES THIS AGREEMENT is made and entered into as of the day of _, 2002, by and between the City of Denton, Texas, a Texas mmcipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "CITY" and C2 Consulting Services, Inc. with its office at 7801 Pencross Lane, Dallas, Texas, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE 1 EMPLOYMENT OF CONSULTANT The CITY hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and in accordance with the highest professional standards customarily obtained for such services in the State of Texas. The professional services set out herein are in connection with the following described project: The Project shall include, without limitation, the CONSULTANT providing assistance to the City in assessing Charter Communications' compliance with the City's franchise agreement and the community needs and interests of the citizens with respect to future cable services. ARTICLE 2 SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner: All those services set forth in CONSULTANT's Exhibit "A" which is attached hereto and incorporated herein. If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits or task orders. ARTICLE 3 PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the CITY and the CONSULTANT, and shall remain in force for the period which may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the CITY. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CONSULTANT shall make ali reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the CITY, acting through its City Manager or his designee. ARTICLE 4 COMPENSATION Ao COMPENSATION, BILLING AND PAYMENT: The parties have conducted negotiations and as a result of these negotiations agree that, based on the project activities enumerated in Exhibit "A", a project cost not-to-exceed $34,000, plus out-of-pocket expenses is a just and reasonable fee for the performance of such services. CONSULTANT agrees to bill and City agrees to pay based on monthly invoices that include actual hours worked during the time period noted, a description of the services provided and details related to any out-of-pocket expenses. Nothing contained in this Article shall require the CITY to pay for any work which is unsatisfactory, as reasonably determined by the City Attorney or his designee, or which is not submitted in compliance with the terms of this Agreement. The CITY shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the CITY for any charge, expense, or reimbursement without first having obtained written authorization from the CITY. ADDITIONAL SERVICES: For additional services authorized in writing by the CITY the CONSULTANT shall be paid based on the Schedule of Charges as reflected in Exhibit "A", Section III, Project Costs. Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with subsection C hereof. Statements shall not be submitted more frequently than monthly. PAYMENT: If the CITY fails to make payments due the CONSULTANT for services and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the said sixtieth (60th) day, and, in addition, the CONSULTANT may, after giving seven (7) days' written notice to the CITY, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the CITY to pay the late charge of one percent (1%) set forth herein if the CITY reasonably determines that the work is unsatisfactory, in accordance with this Article 5, "Compensation." Page 2 ARTICLE 5 OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the CITY any defects or deficiencies in the work of the CONSULTANT or any subcontractors or subconsultants. ARTICLE 6 OWNERSHIP OF DOCUMENTS All final documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the CITY upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and famished by the CONSULTANT are intended only to be applicable to this Project, and CITY's use of these documents in other projects shall be at CITY's sole risk and expense. In the event the CITY uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is released from any and all liability relating to their use in that project. ARTICLE 7 iNDEPENDENT CONTRACTOR CONSULTANT shall provide services to CITY as an independent contractor, not as an employee of the CITY. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE 8 INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the CITY and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the CITY, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, eauae of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. Page 3 ARTICLE 9 INSURANCE CONSULTANT shall maintain and shall be caused to be in force at all times during the term of this Agreement, a legally binding policy of professional liability insurance, issued by an insurance carrier approved to do business in the State of Texas by the State Insurance Board, which carder must be rated by Best Rated Carriers, with a rating of "A-" or higher. Such coverage shall cover any claim hereunder occasioned by the CONSULTANT's negligent professional act and/or error or omission, in an mount not less than $500,000.00 combined single limit coverage per occurrence. In the event of changes to or cancellation of the policy by the insurer, CONSULTANT hereby covenants to immediately advise the CITY thereof; and in such event, CONSULTANT shall, prior to the effective date of change or cancellation, provide a substitute policy famishing the same coverage to the CITY. Consultant shall provide a copy of such policy and the declarations page of the existing policy to the CITY through its City Attorney, simultaneously with the execution of this Agreement. ARTICLE 10 ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving one party's disagreement, may include the other party to the disagreement without the other's approval. ARTICLE 11 TERMINATION OF AGREEMENT Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure; and (2) an oppommity for consultation with the terminating party prior to termination. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the CITY within thirty (30) days after the date of termination. The CITY shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article 5 "Compensation." Should the CITY Page 4 subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information. The CONSULTANT shall turn over all documents prepared or famished by CONSULTANT pursuant to this Agreement to the CITY on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE 12 RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the CITY shall not constitute, nor be deemed a release of the responsibility and 1/ability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the CITY for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. ARTICLE 13 NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days after mailing: To CONSULTANT: To CITY: Constance Cannady C2 Consulting Services, Inc. 7801 Pencross Lane Dallas, Texas Herbert L. Prouty City Attomey City of Denton 215 E. McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after mailing. ARTICLE 14 ENTIRE AGREEMENT This Agreement, consisting of nine (9) pages and one (1) exhibit, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior or contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. Page 5 ARTICLE 15 SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE 16 COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE 17 DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE 18 PERSONNEL The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required trader this Agreement. Such personnel shall not be employees or officers of, or have any contractual relations with the CITY. CONSULTANT shall inform the CITY of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. All services required hereunder will be performed by the CONSULTANT or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. ARTICLE 19 ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the CITY. Page 6 ARTICLE 20 MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this section will not be waived unless as set forth herein. ARTICLE 21 MISCELLANEOUS The following exhibits are attached to and made a part of this Agreement: 1. Exhibit A: Project Activities CONSULTANT agrees that CITY consistent with the attorney client relationship shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of the CONSULTANT involving transactions relating to this Agreement. CONSULTANT agrees that CITY shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section. CITY shall give CONSULTANT reasonable advance notice of intended audits. Venue of any suit or cause of action under this Agreement shall lie exclusively in Demon County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be C. Robert Heath. However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein. CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carded on by the CITY. The CITY shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions Page 7 for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized PURCHASING AGENT, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this the day of ,2002. CITY OF DENTON, TEXAS MICHAEL A CONDUFF, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY C2 CONSULTING SERVICES, INC. CONSTANCE T. CANNADY Page 8 Exhibit A SECTION L PROJECT OBJECTIVES Based on our discussions, C2 understands that the current franchise agreement between the City of Denton (the "City") and Charter Communications ("Charter" or the "Company") was originally adopted in 1988 based on an agreement between Sammons Communications and the City for an apparent fifteen (15) year agreement. In 1995, the franchise was transferred to Marcus Cable Associates and later transferred in 1999 to Charter. Pursuant to §626 of the Cable Act, Charter has requested renewal of it franchise with the City.~ Pursuant to the Cable Act, one of the major objectives of the project will be to ascertain the extent to which Charter has complied with the provisions of the franchise during its three years of operations as well as the compliance of the previous owners of the system. Such evaluation will necessarily include the assessment of compliance with certain performance areas that include, but are not limited to, system upgrades, customer service, and access programming. The second major objective will be to determine the future cable needs of the City and its community and develop franchise provisions that will ensure that such services will be provided. Due to the time frame in which the current agreement was entered into, the provisions are probably not as specific as permitted by federal law, do not address certain rights that have inured to the City under the Cable Act, and do not address the technological changes that have occurred in providing a variety of cable services. Some of these issues were addressed in the transfer to Charter, but it is critical that any renewal franchise agreement clearly identify, to the fullest extent allowed by the Cable Act, the cable television services that are expected to be provided by Charter and any remedies available to each party. In addition, the franchise agreement should provide for minimal interpretation during enforcement by the City of its rights under the franchise agreement. Based on the above project objectives, we propose to assist the City in developing and negotiating a franchise agreement that will address the City's cable television needs and ensure that the City has adequate recourse regarding cable operator compliance throughout the term of the agreement. Given the specific requirements that are to be met under the Cable Act during a renewal process, as-well as the activities that have been identified by the City to be included in the engagement, the project activities have been divided into three project tasks:2 Task 1: Performance Evaluation and Subscriber Satisfaction (non-technical) Task 2: Technical Evaluation of the System Task 3: Limited Participation in Franchise Negotiations Please note that we assume we will work with the City Attorney for necessary legal advice relative to the relationship of the developing franchise to the City charter, City codes and ordinances, and other City forms and policies. (It is our understanding that the City is also in the process of selecting legal expertise relative to this engagement.) ~ 47 U.S.C. § 521 et s~q:., as amended. 2 Based on discussions with the City concerning the proposal dated February, 2001, certain activities have been deletexl bom this proposal, c2 Consulting Services, Inc_ Proposal - Denton Page 1 A detailed description of the proposed project activities within each task is provided in the next section. We understand that the City may wish to alter the project scope to include additional activities that were outlined in our February, 2001 proposal. The Project Cost included in this proposal only relates to the three tasks identified above. However, C2 will work with the City to identify additional activities as desired and provide additional cost estimates for such activities. C2 Consulting Services, Inc. Proposal - Denton Page 2 SECTION IL PROJECT ACTIVITIES The following pages provide a detailed description of the specific activities that will be performed under each of the tasks identified in Section I. TASK 1: PERFORMANCE EVALUATION AND SUBSCRIBER SATISFACTION (NON-TECHNICAL) As a specific requirement of the Cable Act, the franchising authority is to determine the extent to which the cable operator requesting renewal has complied with the terms and conditions of the existing franchise agreement. Generally, the assessment of a cable operator's performance under an existing franchise entails a determination of compliance under the following major topical areas; · Cable Television Services · Upgrade Requirements · Access Channels and Capital Support · Cable Plant Extensions · Customer Service · Franchise Fees · Reporting Requirements · Insurance and Indemnification Requirements Subtask 1: Evaluation of Services This assessment will include a review of (1) various cable television services that have been provided during the franchise period; (2) customer service standards that have been in place, and any changes thereto; and (3) consumer complaints that have been lodged with Charter and/or the City in order to ascertain compliance, as well as overall customer satisfaction. The following reviews will be conducted: Examine and document the changes in services that have been offered during the franchise period. Examine all available complaint logs maintained by the City and by Charter. · Request and review information from Charter specific to standards, procedures for handling customer complaints and service, and "tracking" of customer complaints. Subtask 2: Review Franchise and FCC Compliance Related to Customer Service Franchising authorities have the fight to enforce customer service standards which are in the franchise as well as those promulgated by the FCC, upon adoption by the franchising authorities. Many communities have had success in negotiating specific enforceable standards in concert with cable companies, who have a strong economic interest in maintaining both a positive image and responsible practice in the customer service area. C2 Consulting Services, Inc. Proposal- Denton Page 3 Tho issue of customer service is usually an overriding concern in most cable systems given the changes that have taken place with regard to technology, diversification of cable operations and FCC regulations promulgated under the Cable Act. Therefore, we will review the performance by Charter, and based on the results, provide the City with recommended actions to enhance and enforce customer service standards of practice that are acceptable to the subscriber community. We understand that the City provided for enhanced customer service standards during the transfer of the franchise to Charter. However, additional issues have come to the forefront subsequent to that time that should be considered when estabIishlng future customer service standards. Based on direction from the City as to the areas of concern, the major areas of review with regard to customer service will include, but not be limited to: · Office Hours · Telephone Operations and Answer time · Service Calls * Installations * Repairs * Appointment Windows * Credits/Free Installations · Outages * Response Time * Credits/Refunds · Billings/Refunds/Late Fees · Availability of Service · Other Communications . Training of Representatives Subtask 3: Franchise Fee Review Our proposed approach to a franchise fee payment review will include, but not be limited to, the following activities covering the payments made within the last five years: · Identify the exact basis for the current franchise fee payment · Prepare a detailed RFI to develop an understanding of: * Subscriber billing and collection system * Accounting procedures applied to subscriber and non-subscriber revenue * Accounting policies related to bad debt * Allocations procedures for allocating revenue among jurisdictions * Revenue sources that are currently excluded from the computation and the operator's rationale for such exclusion * Reporting of affiliated transactions * Reporting of regional or national advertising * Reporting ofinternet access revenue · Obtain and evaluate the revenue reports submitted by Charter to the City in terms of accuracy as well as the type of information that is presented · Reconcile Charter's reported revenue to the franchise fee payments received by the C2 Consulting Services, Inc. Proposal ~ Denton Page 4 Clarify with representatives from Charter any issues arising frora review of the franchise fee payments · Conduct a sample review of Charter's ledgers, journals, and workpapers to test the accuracy of calculations made by the operator · If necessary, meet with representatives of Charter's independent auditor to understand procedures performed to audit gross revenues at the system level Subtask 4: Reporting Requirements Evaluation In our opinion, a significant issue with respect to the effective administration of a cable television franchise is the adequacy of financial and operational reporting. This should entail more than merely a copy of the annual audit of the system, but a variety of detailed information regarding the changes in ownership, changes in accounting procedures that may have impacts on rates, expenditures regarding construction of facilities, and/or changes in the overall financial position of the parent organization. Therefore, during this task, we will perform a review of the types of reports that currently are being submitted to the City and determine: Compliance with the franchise agreement Compliance with FCC requirements · Additional data requirements and frequency of reporting · Suggested reporting formats for future franchise periods It is also our understanding that the City has an application process for renewal of a cable franchise. Certain application requirements may need to be considered for future reporting requirements throughout the fi'anchise term. Subtask 5: Additional Compliance Analyses Additional provisions within the franchise agreement will be reviewed and Charter's performance evaluated depending in part on the following: · Identification by City representatives of specific problem areas · Identification of problem areas based on the customer satisfaction survey · Significant provisions requiring specific actions by the operator Subtask 6: Performance Evaluation Report Based on the results of the analyses conducted during Task 1, we will begin preparation of a written report regarding the performance of Charter and identify the extent to which the operator has been in compliance with the current franchise agreement, and relevant FCC regulations. Upon completion of Task 2, the results will be added to this report to provide the City with an overall assessment of the current operations and provide recommendations for improved performance and services during a future franchise period. C2 Consulting Services, Inc. Proposal - Denton Page 5 TASK 2: TECHNICAL EVALUATION Another key component of determining cable services renewal requirements includes a technical review of the system to ascertain: * Compliance with the system requirements of the current franchise agreement. · Compliance with FCC technical standards. · Charter's plans to extend the current capabilities of the system during a future franchise period. · Feasibility of additional service offerings which may not be included in Charter's current plans. Therefore, we propose to conduct the following activities in order to provide a detailed and thorough evaluation of the potential technical requirements that should be considered within a franchise renewal. C2 proposes to subcontract with MuniCom to conduct the technical evaluation. Subtask 1: Information Gathering Based on preliminary discussions with City representatives concerning current technical offerings (e.g. access channels, etc.) we will prepare an initial Request for Information ("RFI") to be submitted to Charter to obtain the following: · Detailed description of any changes in the system architecture · Detailed description of the construction activities conducted during the last four years · Detailed description of planned construction activities · Channel capacity · Description of all services currently provided, and those anticipated · Description of the type of and age of equipment · Technical performance records (including outage logs, trouble call reports, response times) · Description of standby capabilities · Description of emergency alert capabilities · Description of status monitoring equipment · Description of PEG access provided with regard to technical support and usage date along with planned activities/equipment usage for the future · Description of all services currently provided to the City, its facilities and the educational institutions · Description of planned activities/equipment usage for INET operations Upon receipt of the requested information fi.om Charter, we will conduct a detailed review of all documentation provided and develop additional RFIs, as necessary. Such review will focus on the extent to which the current system operations: Comply with the requirements within the franchise and any additional options exercised by the City during the franchise period Meet current technical performance standards promulgated by the FCC (or other related standards or building codes) C2 Consulting Services, Inc. Proposal- Denton Page 6 Meet service availability requirements with regard to system status monitoring and standby capabilities · Meet community needs with respect to extension to areas requesting service Have appropriate maintenance and repair procedures' to ensure efficient operations and continued service Subtask 2: On-Site Inspection In order to fully assess the current capabilities of the system and update its Overall compliance with technical standards and quality control, we propose to perform an on-site inspection of the system. We will communicate with the appropriate Charter representatives and structure a detailed inspection of the: · Headend facilities · PEG access facilities · Distribution plant Emergency alert · Testing equipment In addition, we will conduct signal testing at various locations on the system (at our selection) to determine audio and video quality. These tests, along with the operator's documentation regarding various FCC required testing will provide the necessary information to assess the condition of the system and its capabilities. TASK 3: LIMITED PARTICH~ATION IN FRANCHISE NEGOTIATIONS Subtask 1: Franchise Negotiations To the extent that the City and Charter are willing to negotiate the terms and conditions of a future franchise period, we propose to assist the City during such negotiations on an "as needed basis." We have included a task cost for negotiations that includes twenty-four hours of professional time. Additional time requirements wilI be billed at the hourly billing rates as identified in Section IH. C2 Consulting Services, Inc. Propoxctl- Denton Page 7 SECTION m. PROJECT COSTS Based on the tasks identified in Section II, our professional fees are estimated not-to-exceed $33,800, plus out-of-pocket expenses.3 The estimated project cost breakdown is provided by Subtask as follows: Task 1: Subtask 1: $4,200 Subtask 2: $2,000 Subtask 3: $7,500 Subtask 4: $1,500 Subtask 5: $3,000 Subtask 6: $2,000 Task 2: $10,000 (includes initial I-Net review) Task 3: $3,6004 Total $33,800 We point out that these are estimated costs are based on the level of effort identified in our project approach. We understand that the City may wish to modify the scope of each activity discussed, and based on such modification, we will adjust our cost estimate accordingly. As the lead f'rrm, C2 will bill the City on a monthly basis based on actual hours worked, pins out- of-pocket expenses using the following billing rates: * Constance Cannady $15 O/hour · Stephen Jolin $120/hour · Brian Nordlund $100/hour In the event that the actual hours spent in conducting the enumerated activities are less that those estimated in the development of the not-to-exceed proposed costs, the City will be billed only for the actual hours worked. However, if the actual hours worked excef, xl the estimate, the City only will be billed up to the not-to-exceed cost, plus out-of-pocket expenses. ~ Out of pocket expenses are estimated not to exceed 12.5% of the professional fees and primarily include travel and lodging for MuniCom participation. 4 The professional fees under Task 3 wilt depend in large part on the activities that may be conducted by the City's attorney or outside counsel. The estimate noted includes twenty-four hours of professional time. C2 Consulting Services, Inc. Proposal o Denton Page 8 Agenda 02-013 04/16/02 #23 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: April 16, 2002 General Government Betty Williams, Director of Management & Public Information Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance authorizing the City Manager to sign the Contract for Professional Services between the City of Denton and Vamum, Riddering, Schmidt, Howlett to provide legal services with respect to Charter Communications cable franchise renewal filing and work with cable consortium; CoServ cable franchise application; ratifying prior actions; and providing an effective date. BACKGROUND: Our Current Cable Television Franchise Agreement with Charter Communications (Charter) expires on November 15, 2003. The current 15-year franchise was initially granted to Sammons Communications, transferred to Marcus Cable Associates in November 1995, and transferred again to Charter Communications in March 1999. Charter submitted to the City the required written notice requesting the commencement of the renewal process. The City must first determine the future cable-related community needs, conduct a review of Charter's past performance, and makes a determination of Charter's financial, legal and technical capabilities. The City must then update the Cable Television Ordinance and submit and begin negotiations on a new cable franchise agreement with Charter to bring before City Council. The FCC ruling of March 14, 2002, and Charter's announcement of withholding franchise fees, will impact these negotiations and the potential for litigation exists. The City also has an opportunity to join in with several other Metroplex cities in a cable consortium that will bc exploring the possibility negotiating thc extension or renewal of a cable franchise agreement that can be taken back to each City Council for approval. Membership in this consortium will afford Denton with a stronger bargaining position at a lower financial cost. Currently, the consortium is looking at contracting with John Pestle of Vamum, Ridcring, Schmidt, Howlett. We estimate that Denton will be responsible for approximately 10% of the consultant fcc. Mr. Pestle has told the consortium that he estimates the fee for the services provided to be at $75,000 so Denton would be responsible for $7,500. If the consortium does not form, Vamum, Ridering, Schmidt, Howlctt has estimated a cost of $34,000 for legal services for the renewal of the Charter franchise agreement. This cost would be considered additional services on consent of the City, and would be projected in the 2002-03 budget. Further, CoServ has filed a cable franchise application with the City. Our application process requires an application fee of $5,000 to be used towards the cost of reviewing the application. Staff recommends contracting with Vamum, Ridering, Schmidt, Howlett to provide legal services with this filing. By federal law, the costs associated with a cable franchise application are required to be reimbursed to the City by the applicant. OPTIONS: 1. Approve the contract for professional cable consultant services. 2. Disapprove the contract for professional cable consultant services. Vamum, Riddering, Schmidt, Howlett Page 2 of 2 RECOMMENDATION: For the reasons set forth herein staff recommends approval of this contract FISCAL INFORMATION: Funding for this agreement, not to exceed $32,500, will come from Fund 860, Account 7856. Respectfully submitted: ~"~i~'y-Wi~iams- Director of Management and Public Information Prepared by: {~ln-Cabr~es Jr. ~ x,Pa/blic Information Officer Attachments: 1. Ordinance 2. Professional Services Agreement 3. Vamum, Riddering, Schmidt, Howlett proposal Page 2 S:\Our D ocmm ent s\Or din an ces\02\CHARTER C O SERV. doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH VARNUM, RiDDERING, SCHMiDT & HOWLETTLLP FOR LEGAL SERVICES FOR THE AMENDMENT OR EXTENSION OF THE CHARTER CABLE FRANCHISE AGREEMENT AND FOR LEGAL SERVICES ON THE APPLICATION FOR COSERV TO PROVIDE CABLE TELEVISION SERVICES;AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it in the public interest to engage the firm of Vamum, Riddering, Schmidt & Howlett, L.L.P., Attorneys at Law, ("Varnum")to provide legal services for the amendment or extension of the Charter Cable Franchise and for the application of CoServ, who has been providing Cable Tdevision Services within The City of Denton; and WHEREAS, because of Federal Communications Commission ruling of March 14, 2002, and the announcement of withholding franchise fees, legal issues have arisen on the compliance of Charter with The City of Denton's Cable Television Franchise Ordinance; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act", generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional legal services, as set forth in the Professional Services Agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the recitations set forth and contained in tl~ foregoing preamble are expressly incorporated by reference into this Ordinance. SECTION 2: That the City Manager or his authorized representative is hereby authorized to execute a Professional Services Agreement with Varnum, for legal services as state above in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference. SECTION 3. That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of Varnum and the ability of Vamum to perform the professional services needed by the City for a fair and reasonable price. SECTION 4: That the expenditure of funds as provided in the attached Agreement for Professional Legal Services is hereby authorized. S:\Our D ocmm ent s\Or din an ces\02\CHARTER C O SERV. doc SECTION 5: That the above and foregoing Agreement for Professional Legal Services is hereby ratified, confirmed, and retroactively approved, and shall be effective from and after January 1, 2002. SECTION 6: That except as otherwise provided in Section 5 above, this Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 LETTER OF AGREEMENT FOR PROFESSIONAL LEGAL SERVICES TO ASSIST THE CITY OF DENTON IN THE CHARTER CABLE FRANCHISE AMENDMENT OR RENEWAL AND THE COSERV CABLE TELEVISION FRANCHISE RENEWAL This Letter Agreement executed this the __ day of ., 2002 between the City of Denton, Texas, a municipal corporation ("CITY") and Va.mm, Riddering, Schmidt & Howlett, L.L.P., Attorneys at Law ("CONSULTANT"). This Letter of Agreement sets forth the mutual understanding of the parties of the legal services to be provided CITY by CONSULTANT on the proposed amendment or renewal of the CITY's cable television franchise with Charter Communications, ("CHARTER"), and services to be provided by CONSULTANT on CoServ Communications or its affiliates ("COSERV") application for a cable television franchise agreement. This Letter Agreement also describes the basis on which CONSULTANT will be paid. CONSULTANT will provide services for CITY as follows: CONSULTANT will represent CiTY on the proposed amendment or renewal of the CHARTER cable fi:anchise agreement and on the proposed application of COSERV for a cable television franchise, as set forth in CONSULTANT's proposal, a copy of which is attached hereto as Exhibit A and made a part of this Letter Agreement for all purposes. This includes, without limitation, examining the CITY's Charter, Chapter 8 of the City Code, current cable franchise, meeting with the City Manager, City Attorney, and other officials and employees of the CITY in person or by telephone, obtaining information from CHARTER and COSERV and advising CITY about the responses and other information received from CHARTER and COSERV. CONSULTANT will assist in representing CITY in negotiations with CHARTER and COSERV and advising CITY about responses, CONSULTANT will use its best efforts to arrive at an agreement on the terms upon which the amendment or renewal of the CHARTER cable franchise agreement and the application for a cable fi'anchise agreement by COSERV should be approved, and such other matters as are appropriate. John W. Pestle of CONSULTANT will oversee the provision of legal services and wilt use the services of other attomeys in CONSULTANT's firm or non-attomey legal assistants as CONSULTANT may deem necessary. The scope of CONSULTANT's services may be changed from time to time by mutual agreement. For additional services authorized in writing by the CITY, the CONSULTANT shall be paid based on the Schedule of Charges as reflected in Exhibit "A". This Letter Agreement shall commence on the date it is executed, and will be concluded at the time that the proposed amendment or renewal of CITY's cable television franchise with CHARTER or when the cable franchise agreement with COSERV has been completed, unless sooner terminated in accordance with this Letter Agreement. Either party may terminate this agreement at any time, upon ten (10) days prior notice in writing, sent by certified mail, return receipt requested at the addresses given below: CITY CONSULTANT City of Denton ATTN: Michael A Conduff, City Manager 215 E. McKinney Denton, Texas 76201 Vamum, Riddering, Sehmidt & Howlett, LLP ATTN: John W. Pestle P. O. Box 352 Grand Rapids, Michigan 49501-0352 John Pestle will oversee this matter on behalf of CONSULTANT and will devote a significant amount of his time to same provided, however, CONSULTANT will use the services of other attomeys in the fm-n or non-attorney legal assistance in order to efficiently perform these services at the lowest possible cost. CITY will pay the CONSULTANT for legal services performed in accordance with the hourty billing rates set forth herein provided, however, that all bills for legal services, including all costs and out-of-pocket expenses whatsoever shall not exceed Seven Thousand and Five Hundred Dollars, ($7,500), for services performed for CITY for the amendment or renewal of the CHARTER cable franchise. CITY will pay the CONSULTANT for legal services performed in accordance with the hourly billing rates set forth herein provided, however, that all bills for legal services, including all costs and out-of-pocket expenses whatsoever shall not exceed Twenty-five Thousand Dollars, ($2fi,000), for services performed for CITY for the COSERV cable franchise. CONSULTANT's rates for services currently range from Seventy Dollars ($70.00) per hour to Three Hundred Twenty Dollars ($320.00) per hour, and shall be Three Hundred Twenty Dollars ($320.00) per hour for Mr. Pestle, and a rate not to exceed Seventy Dollars ($70.00) per hour for non-attorney legal assistance and other staff services, which rates CONSULTANT agrees not to increase for the term of this contract. No attorney assigned to the case will bill at a rate greater than Three Hundred Twenty Dollars ($320.00) per hour. All bills will delineate the hours worked by each member of the firm who does work on this matter with a narrative description of the services performed. The bill will also include any out-of-pocket expenses incurred by the GROUP on CITY's behalf, plus internal charges at CONSULTANT's standard rate for same such as copying, long distance calls, word processing, staff overtime, messenger services, faxes, and the like. The bill shall be subject to review and approval of the City Manager and, if the City Manager so determines, the City Attorney. All bills will be provided to the City monthly and will be consistent with the billing procedures and other important elements of the parties relationship discussed in the Service and Billing Information memorandum, which is attached to the Letter Agreement as Exhibit B and made a part of this Letter Agreement for all purposes. Nothing herein shall require CITY to pay for services, which it determines are not within the scope of services set forth herein. In the event CITY terminates CONSULTANT's services, it shall pay for all services satisfactorily performed up to the date CONSULTANT receives the notice of termination. However, if it is too difficult for CONSULTANT to segregate costs partway through a month, the PAGE 2 CITY shall pay for its share of the costs through the end of the month in which it terminates. Provided, however, CITY shall never be required to pay for services which have not been provided or which are not performed in accordance with the terms of this Letter Agreement. All CONSULTANT's bills shall be net 30 days, unless any portion of the bill is disputed, in which event, the bill shall be due 30 days from the date the parties resolve said dispute. CITY wishes to obtain by CONSULTANT's representation its knowledge on cable and telecommunications matters. This knowledge, in significant part, derives fi:om CONSULTANT's past and ongoing representation of other persons on such matters. CONSULTANT recognizes the fact that, although it considers it unlikely, future events might result in its representing other persons on matters adverse to CITY or vice versa. This is a corollary to CONSULTANT's knowledge in part coming from the representation of other persons. CITY agrees that CONSULTANT may represent other persons on matters adverse to CITY (if that matter is substantially unrelated to the services CONSULTANT has provided to CITY) while CONSULTANT continues to represent CITY if CONSULTANT reasonably believes that the representation will not adversely affect the relationship with CITY. Provided, CONSULTANT will first notify CITY of the matter and CITY either agrees there is no conflict of interest or waives the conflict. CITY further agrees that, if CONSULTANT determines that it should not represent CITY and, at the same time, represent another person on a matter adverse to CITY, the remedy for such a situation is that CONSULTANT may withdraw from representing CITY. In such situation, CITY expressly consents to the right of CONSULTANT to so terminate this representation of CITY and to its withdrawal as counsel for CITY on all pending matters, upon giving CITY ten (10) days prior written notice as set forth above. CITY also can choose to terminate CONSULTANT's representation of it at any time by giving the same ten (I0) days prior written notice. In either situation, CONSULTANT will cooperate in transferring files to whatever counsel, if any, CITY chooses to thereafter represent it. CITY's agreement on these points aids all CONSULTANT's clients, including CITY, by making CONSULTANT's services available on as many projects and matters as possible. The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. During the term of the Letter Agreement, CONSULTANT shall provide services to CITY as an independent contractor, not as an employee of the CITY, and shall maintain professional liability PAGE 3 Exhibit A BRiDGEWATER PLACE * POST OFFICE BOX 352 GRAND RAPIDS, M ICH[GAN 49501-0352 TELEPHONE 616 / 336-6000 * FAX 616 / 336-7000 * WW~C,VARNUMLAW,COM lAMES N. DEBOER, IR. MARILYN A. LANKFER MARK S. ALLARD ALFRED L. SCHUEKEGEL, JR. RACHEL L. URQUHART COUNSEL HILARY F. SNELL THOMAS L. LOCKHART '[']MOTHY E. EAGLE PAMELA J. TYLER MARK E. HILLS TERRANCE R. BACON KENT J. VA)IA BRUCE O. HUDSON DAVID A RHI]M JON M. BYLSMA .~OSHUA M. WALLISH FRED M, WOODRUFF JOHN C. CARLYLE BRUCE ~OODMA~ DONALD P. LAWLESS ~OSEPH B. L~VAN PHiLLIP D~ TORRENCE ~. MARK MCALE~AN, J~. DONALD L. ~OHNSON IO$~gH J. VOOAN MICHAEL $. MC~LWEE DALE R. RIETBERO JEFFREY C. filFFOR~ 2OLENE L. SHELLMA~ March 15, 2002 Mr. John Cabrales Public Information Officer City of Denton 215 E. McK_inney Street Denton, TX 76201 Dear John: Confirming our discussions of several days ago this provides a cost estimate for the three matters indicated below. * For the group franchise amendment and extension, Demon's share $7,500 If necessary, for a separate renewal with Charter $34,000 For work on a cable franchise for CoServ $25,000 Please note on the CoServ matter that they will likely reimburse some or all of the sums in question. I trust this provides the information needed. As always, we appreciate being of assistance to the City. Should you have any questions, please let me know. With best wishes, Very truly yours, VARNUM, RIDDERING, SCHMIDT & HOWLETTLLP JWP/kv cc: Dorothy Palumbo Denton File John W. Pestle GRAND RAPIDS ° LANSING * KALAMAZOO * ORAND HAVEN * MILWAUKEE VARNUM, RIDDERING, SCHMIDT & HOWLETTLLP SERVICE AND BILLING INFORMATION The Scope of Our Work Vamum, Riddering, Schmidt & Howle~LP is pleased to have you as a client of our fa're. At Varnum, Riddering, we have a tradition of delivering not only high quality legal services but excellence in client service. Throughout our relationship, you should have a clear understanding of the legal services we will provide. Any questions that you have will be dealt with promptly. We will strive to act on your behalf to the best of our ability. Any statements on our part concerning the outcome of your legal matters are expressions of our professional judgment, but are not guarantees. Our opinions are necessarily limited by our knowledge of the facts and are based on the state of the law at the time they are given. It is our policy that the person or entity we represent is the person or entity identified in our engagement letter sent with this Memorandum and does not include any affiliates of that person or entity (i.e., if you are a corporation or parmership, any parents, subsidiaries, employees, officers, directors, shareholders or parmers of the corporation or partnership, or commonly owned corporations or parmerships; or, if you are a trade association, any members of the trade association). In proceeding with this relationship, you agree that our relationship is with you and not your affiliates, and that, as a result, it will not be necessary for us to obtain the consent of you or your affiliates in order for us to represent another client in a matter adverse to your affiliates, Furthermore, to the extent that our representation of others adverse to any of your affiliates may be deemed to require your consent, you give that consent. It is also our policy that the attorney-client relationship will end at our completion of the services you have retained us to perform. If you later retain us to perform additional services, our attorney-client relationship will bo reactivated. Who Will Provide the Legal Services At Varnum, Riddering, we frequently take a team-based approach to serving our clients. At the beginning of our relationship, where appropriate, we will establish a team of farm members to serve you. This Client Service Team will be led by one attorney who will serve as your Client Service Manager and primary contact at the firr~ This attorney should be someone in whom you have confidence and with whom you enjoy working. Client Service Teams include attorneys and legal assistants with different areas of specialization who, under the supervision of the Client Service Manager, may perform work on behalf of the client. The delegation of assignments to team members may be for the purpose of using lawyers or legal assistants with special expertise or for the purpose of providing services on the most cost- efficient and timely basis. When applicable, we will advise you of the names of the attorneys and legal assistants who serve on your Client Service TearrL You are free to request a change in the Client Service Manager or Client Service Team members at any time. If a change in the Client Service Manager is desired, please contact any other Partner of the f'am. For questions concerning team members, please contact your Client Service Manager. Communication and Responsiveness We strive to return all telephone calls on the day received or by the following morning, if received late in the day. Our support staffwill be familiarized with you and will be aware of any special communication instructions or requirements. You will have 24-hour access to the attorneys' direct dial telephone numbers and voice mail system on which confidential, detailed messages can be left. Where appropriate, you will be provided with the home telephone numbers and the car telephone numbers of the attorneys working with you. The names of secretaries and staff supporting your Client Service Team can also be provided. How Fees Will Be Set Attorneys may be compensated under a variety of fee arrangements, including purely hourly or per diem arrangements. At Vamum, Riddering, in determining the amount to be charged for the legal services we provide, we generally consider the following, unless described otherwise in the engagement letter sent with this Memorandum: The time and effort required, the novelty and complexity of the issues presented, and the skiIl required to perform the legal services promptly; The fees customarily charged in the community for similar services and the value of the services to you; The amount of money or value or property involved and the results obtained; The time constraints imposed by you as our cliem and other circumstances, such as an emergency closing, the need for injunctive relief from court, or substantial disruption of other office business; The nature and longevity of our professional relationship with you; The experience, reputation, and expertise of the lawyers performing the services; The extent to which office procedures and systems have produced a high- quality product efficiently. Among these factors, the time and effort required are typically weighted most heavily. We keep records of the time we devote to your work, including conferences (both in person and over the telephone), negotiations, factual and legal research and analysis, document preparation and revision, travel on your behalf, and other related matters. We record our time in fractions of an hour. The hourly rates of our lawyers and legal assistants have an important bearing on the fees we charge. The fm'n establishes a range of hourly rates for each attorney and legal assistant. These rates may be adjusted from time to time to reflect current levels of legal experience, changes in our costs, and other factors. We are often requested to estimate the mount of fees and costs likely to be incurred in connection with a particular matter. When requested, we will furnish such an estimate based upon our professional judgment, but always with a clear understanding that it is not a maximum or freed-fee quotation. The ultimate cost frequently is more or less than the amount estimated. For certain well-defined services (for example, a simple business incorporation), we will quote a fixed fee. It is our policy not to accept representation on a fixed fee basis except in such defined service areas or pursuant to a special arrangement tailored to the needs of a particular client. In those situations, the fixed fee arrangement will be expressed in a letter, setting forth both the amount of the fee and the scope of the services to be provided. Varnum, Riddering encourages discussion with our clients about legal fees and billing arrangements. Unnecessary misunderstandings can result from a lack of clear communication on these sensitive matters. We would expect to have candid discussions regarding fees and billing arrangements with you at the beginning of our relationship Other Charges Typically, we will charge our clients not only for legal services, but also for other ancillary services which we provide. Examples of ancillary charges include: computerized research services and the use of our photocopy machines. While our charges for these services are measured by use, they do not, in all instances, reflect our actual out-of-pocket costs. For photocopying, for example, the true cost of providing the service is difficult to establish. While we are constantly striving to maintain these charges at rates which are lower than those maintained by others in our markets, in some instances, the amounts charged exceed the actual costs to the finn. We would be pleased to discuss the specific schedule of charges for these additional services with you and to answer any questions that you may have. If you would prefer, in some situations we eau arrange for these ancillary services to be provided by third parties with direct billing to you. Disbursements In addition to our fees and other charges, we will bill you, without any mark-up, for any out-of-pocket expenses which we incur on your behalf. Examples of costs in this category may include filing fees, court costs, mileage and third-party carrier or overnight delivery service. We may ask that you pay any sizeable third-party costs or expenses directly. Billing Arrangements and Terms of Payments We will bill you, normally each month, for fees, other charges and disbursements. You are expected to make payment upon receipt of our invoice. Unpaid fees and disbursements accrue interest at the maximum rate permitted under the laws of the State of Michigan, but not exceeding 1% per month from the beginning of the month in which they became overdue. If your account becomes past due, you are expected to bring the account or the retainer deposit current. If the delinquency continues and you do not arrange satisfactory payment terms, we may withdraw from the representation and pursue collection of your account. You then agree to become responsible for paying the costs of collecting the debt, including court costs, filing fees and reasonable attorney fees. Invoices are typically sent monthly unless there is a project to be billed in a different fashion. At times, when there is low activity, an invoice may be sent less frequently than monthly. Generally, one person acts as the billing attorney for each client in order to coordinate the billing process. Billing can be done on a composite basis or broken down by subject matter. If you want particular invoices sent to specific individuals for approval in your company, that can be done. Under normal circumstances, we submit regular monthly invoices to clients listing in a narrative fashion the particular work performed by date and the exact amounts of other charges and disbursements for all client matters. Retainers New clients of the firm are commonly asked to pay the firm a retainer. If you pay us a retainer, you grant us a security interest in those funds. Typically, the retainer is equal to the fees and costs likely to be incurred during a two-month period. Unless otherwise agreed, the retainer typically will be credited toward your unpaid invoices, if any, on a monthly basis at the time the invoice is generated. If you dispute any mount charged against the retainer, you may notify us promptly and we will return the disputed amount to the retainer account pending resolution of the dispute. At the conclusion of our representation or at such time as the retainer is unnecessary or is appropriately reduced, the remaining balance or an appropriate part of it will be returned to you. If the retainer proves insufficient to cover current expenses and fees on at least a two-month basis, an additional retainer may be necessary. Deposits received to cover specific items will be disbursed as provided in our agreement with you, and you will be notified from time to time of the amounts disbursed. Any amount remaining after disbursement will be returned to you. By court rule, most retainers will be placed in a pooled account, and interest earned on the pooled account is payable to a charitable foundation established in accordance with the court role. In some instances, your retainer may be placed in a separate trust account for your benefit. Termination You may terminate our representation at any time by notifying us. Your termination of our services will not affect your responsibility for payment of legal services rendered, additional charges and disbursements incurred before termination and in connection with an orderly transition of the matter. We may also withdraw from providing services to you. We are subject to the codes of professional responsibility for the jurisdictions in which we practice, which list several types of conduct or circumstances that require or allow us to withdraw fxom representing a client. We t~ to identify in advance and discuss with our clients any situation which may lead to our withdrawal, and if withdrawal ever becomes necessary, we will give the client written notice of our withdrawal. Client Flies Once our engagement in this matter ends, we will return the file materials provided by you upon your request. You agree that we may retain, at your expense, copies of the file materials. You also agree that any materials lef~ with us after the engagement ends may be retained or destroyed, at our discretion. We reserve the right to make, at your expense, and retain copies of all documents generated or received by us in the course of our representation. When you request documents from us, copies that we generate will also be made at your expense. Our own files pertaining to the matter will be retained by the firm (as opposed to being sent to you) or destroyed. These firm files include, for example, firm administrative records, time and expense reports, personnel and staffing materials, credit and accounting records, and internal lawyers' work product (such as drafts, notes, internal memoranda, legal research, and factual research, including investigative reports prepared by or for the internal use of lawyers). Any documents that are retained by the fn'm will be transferred to the person responsible for administering our records retention program. For various reasons, including the minimization of unnecessary storage expenses, we reserve the right to destroy or otherwise dispose of any documents or other materials retained by us within a reasonable time after the termination of the engagement. Privacy Policy Vamum is now required by law and Federal Trade Commission Regulations to inform certain clients of our policies regarding privacy of client information. Our finn has always had the highest respect for client confidentiality. In addition, we have been, and continue to be, bound by professional standards of confidentiality that are even more stringent than those required by law. As such, you can rest assured that we will continue to honor our tong-standing policy and practice of maintaining confidentiality. Types of Nonpublic Personal Information We Collect We collect nonpublic personal information about you that is provided to us by you or obtained by us w/th your authorization. Parties to Whom We Disclose Information For current and former clients, we do not disclose any nonpublic personal information obtained in the course o four practice, except as required or permitted by law. In a generic sense, any information a client provides us is likely to be considered nonpublic personal information and receives confidential treatment. Permitted disclosures include, for instance, providing information to our employees, and in limited situations, to unrelated third parties who need to know that information to assist us in providing services. In all such situations, we stress the confidential nature of information being shared. Protecting the Confidentiality and Security of Current and Former Clients Information We retain records relating to services that we provide so that we are better able to assist you with your needs and, in some cases, to comply with guidelines of our profession. In order to safeguard your nonpublic personal information, we maintain physical, electronic, and procedural safeguards that comply with the roles of professional conduct applicable to ns. Please call your Vamum attorney if you have any questions, because your privacy, our professional ethics, and the ability to provide you with quality services are very important to us. Arbitration Other than a complaint to a disciplinary authority, any controversy, dispute, or question arising out of, in connection with, or relating to the engagement agreement (including, but not limited to, interpretation, performance, nonperformance, or breach), the attorney-client relationship, fees, or any services of Vamum shall be determined by arbitration. Unless otherwise agreed and except as described below, the arbitration shallbe conducted in accordance with the then.existing rules for Commercial Arbitration of the American Arbitration Association. Arbitration shall be by a single arbitrator. Unless otherwise agreed, the arbitration shall be conducted in Grand Rapids, Michigan. The hearing shall be conducted pursuant to the normal rules of evidence applicable to such a matter in the Michigan courts. The decision rendered by the arbitrator shall be final and binding upon the parties, except that any party may make one request for reconsideration by the arbitrator, provided that such request is made, in writing, within fourteen (14) days of issuance of the decision or reconsideration has been directed by a court having jurisdiction. Any court having jurisdiction, including a circuit court of the State of Michigan, may enter judgment, including, but not limited, to an award of damages, on the arbitration award. The arbitrator may not amend, modify, or substitute any of the terms of the engagement agreement between the parties and his jurisdiction is thereby limited. Any party may seek resolution of the matter upon motion submitted to the arbitrator, if there are no genuine issues of material fact relevant to such resolution upon motion. Any party to the arbitration shall be entitled to discover, reasonably in advance of an arbitration hearing, relevant unprivileged documents in the possession, custody, or control of any other party to the arbitration, subject to the arbitrator limiting such discovery to avoid undue burden or expense or the disclosure of information for which the possessing party has a duty of confidentiality to others. Ifa party will present testimony of an independent expert (i.e., not a party, employee, owner, or partner of a party) at an arbitration hearing, the other party will be allowed to depose, under oath, that expert reasonably in advance of the hearing, but such deposition will not take longer than one day (seven hours), unless the parties otherwise agree or the arbitrator determines that a longer time is appropriate. No other depositions (i.e., of fact witnesses) will be permitted, except upon agreement of the parties or upon approval by the arbitrator as to a witness who cannot be subpoenaed or is unable to attend the hearing. Agenda 02-013 04/16/02 #24 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: April 16, 2002 General Government Betty Williams, Director of Management & Public Information Michael A. Conduff, City Manager SUBJECT: Hold a public hearing to receive citizen comments regarding cable television regulated rates. BACKGROUND: The City is certified to regulate cable television rates for basic cable service, equipment, changing tiers, and the hourly service charge. Under the current franchise agreement, Charter Communications has agreed to file for new rates only once per year. The city received the appropriate rate adjustment filing Federal Communications Commission Forms (1240 and 1205) on March 1, 2002. The City has one year from that date to issue a rate order establishing the Maximum Permitted Rates (MPR) that Charter Communications may charge. However, Charter has the right to implement these proposed rates on June 1, 2002 until City Council sets the new MPR's. According to Section 8-136 of the Denton Cable Television Ordinance, council shall hold a public heating to consider the proposed new rates within ninety (90) days for the date of the filing. Notification of this public hearing was posted on the Denton Record Chronicle, our website and Channel 26. Also as per section 8-136 (2), Charter placed notification on at least two (2) channels of its system, between the hours of 7:00 p.m. and 9:00 p.m., for five consecutive days. In their filing, Charter Communications indicates that the new rates are the result of "certain external costs, (i.e., programming, channel changes, copyright), inflation, true-up adjustments and increased cost associated with delivering cable service." FCC Form 1240 calculates the maximum permitted rate for basic cable service. Form 1205 calculates maximum permitted rates for equipment, changing tiers, and the hourly service charge. We contracted with Connie Cannady of C2 Consulting to assist staff with the rate analysis. Ms. Cannady is familiar with Charter Communication's cost analysis practices and has done our rate analysis for the past several years. Ms. Cannady's report will be available for the regular council meeting on May 14. ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) April 16, 2002 Cable Rates Public Hearing Page 2 of 3 A comparison of the cable operator's existing Maximum Permitted Rates follows: Charter Communications Maximum Permitted Rates Item Current Proposed Basic Cable $9.78/month $10.19/month Non-addressable Converter $0.98/month N/A Digital Converter $3.95/month $6.60/month Remote Control $0.20/month $0.20/month Changing Tiers $2.00 $1.99 Hourly Service Charge $22.12/hour $26.79/hour Unwired Install-Aerial $39.37 $46.09 Unwired Install-Underground $42.02 $50.11 Install-Prewired Reconnect $23.66 $29.47 A/O at time of Installation $12.83 $14.20 A/O Return Trip $23.66 $29.47 Analog Prewired A/O None* $25.46 Analog Relocate A/O None* $29.47 Analog Truck Roll $20.57 $24.12 Digital Install-Aerial $47.11 $55.47 Digital Install-Underground $49.76 $59.48 Digital Upgrade $31.40 $38.85 Digital A/O at time of Installation $18.58 $17.42 Digital A/O Return Trip $28.75 $34.30 Digital Prewired A/O None* $29.47 Digital Relocate A/O None* $32.96 Digital Truck Roll $20.57 $27.60 Modem Install $44.70 None** *Charter had not previously filed a rate for this type of service work. It appears that these filings are giving a cost break to customers with prewired connections. ** Charter did not file a rate for this category. Intemet service is not a regulated service, however staff thinks that because Charter requires internet customers to subscribe to basic only cable service we might have a persuasive argument for regulating this rate. ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) April 16, 2002 Cable Rates Public Hearing Page 3 of 3 Charter's latest filing indicates that they intend to raise the basic cable service rate $0.41 per month ($9.78 to $10.19). Their filing also contains an increase of $2.65 for the digital converter rental ($3.95 to $6.60). They did not file a rate for the non-addressable converter because we no longer have these converters in our system. Their rate for changing tiers is reduced by $0.01, while their remote rentals will increase will remain the same ($0.20). The proposed hourly service charge will increase $4.67 ($22.12 to $26.79). Regarding the hourly service rate, it should be noted that Charter has set certain time standards for certain types of installations which we asked our rate consultant to examine. OPTIONS: 1) Direct staffto prepare a resolution approving Charter Communications' rates as filed. 2) Direct staff to prepare a resolution approving rates as determined by C2 Consulting. 3) Take no official action prior to June 1, 2002 and Charter Communications may implement their filed rates on June 1, 2002. If Charter Communications implements their filed rates on June 1, 2002, and if Council approves lower rates after June 1, 2002, then Charter Communications must implement the lower rates immediately. Charter Communications may attempt to obtain an order by the FCC or a court staying the effectiveness of the City's rate order and thus allowing implementation of the filed rates. However, if the FCC or the courts uphold the lower rates, Charter Communications would have to rebate the difference to subscribers or factor the overcharges into next year's calculations. PRIOR ACTION/REVIEW (Council, Boards, Commission): Presentation made at City Council Work Session on April 2, 2002. FISCAL INFORMATION: Higher rates would impact subscribers. City receives 5% of Charter Communications gross revenues as franchise fees. Respectfully sul~mitted: ~]~etty ~il'liams Director of Management and Public Information Prepared by: Jo~'~brales Jr. - P~formation Officer ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) This page left blank intemionally. AGENDA INFORMATION SHEET Agenda 02-013 04/16/02 #25 AGENDA DATE: DEPARTMENT: ACM: April 16, 2002 Economic Development ~/ David Hill, 349-8314 ~ SUBJECT Hold a public hearing inviting citizens to commem on the City of Demon's 2002 Action Plan for Housing and Community Development. Barbara Stinnett, CDAC Chair and Wallace Duvall, HSC Chair will provide a briefpresemation prior to the public hearings regarding committee recommendations. BACKGROUND On an annual basis, the City of Demon prepares an Action Plan for submission to the U.S. Departmem of Housing and Urban Developmem (HUD). The Action Plan serves as the city's application for Community Developmem Block Gram (CDBG) and HOME Investmem Partnerships program funding. In 2000, using a process with extensive input from citizens and local nonprofit organizations, staff developed Demon's Consolidated Plan for Housing and Community Development. The Consolidated Plan is a five-year strategy detailing housing, social service and public works projects benefiting low and moderate-income households and neighborhoods. Annual action plans are developed based on the strategies outlined in the Consolidated Plan. The 2002 Action Plan represems the third year in the City's five-year strategy. Public hearings requesting citizen input regarding the use of CDBG and HOME funds were held in November and December. Application availability was advertised in November and December. Application workshops were available to requesting organizations in January. CDAC and HSAC held funding hearings during February and March. Minutes from the public hearings are included beginning on page 44 of the Action Plan. Both committees developed a set of funding recommendations to presem to City Council. Staff has developed these recommendations imo the 2002 Action Plan for council review. Page seven (7) of the Action Plan provides a list of the activities recommended for 2002 funding. Please refer to your 2002 Action Plan for additional information. The Action Plan contains a copy of the proposed 2002 Action Plan and minutes of the CDAC and HSAC meetings. OPTIONS · City Council may request a work session with committee members and staff to discuss funding recommendations. City Council may request that changes be made to the proposed 2002 Action Plan activities prior to final acceptance. City Council may choose to accept CDBG and HSAC recommendations for CDBG and HOME funds and make no changes to the proposed plan. ESTIMATED SCHEDULE OF PROJECT Public comment period April 1 through April 30 Committees present recommendations to April 16 Council Action Plan public hearing April 16 City Council considers approval of Action Plan May 1 Submission of Action Plan to HUD June 1 Environmental review process May 1 through July 20 Release of funds by HUD August 2 Project initiation August 5 PRIOR ACTION/REVIEW (Council, Boards, Commissions) Community Development Advisory Committee members have developed recommendations for allocation of CDBG funds for housing and nonprofit facility improvements. CDAC Committee minutes are included beginning on page 49 of the Action Plan. The Human Services Committee members developed recommendations for the use of $169,283 CDBG funds for human service activities. This is the maximum amount of CDBG funds that can be used for human services under federal regulations. HSAC also recommended that $280,392 from the City's General Fund be allocated to human services agencies. Though the Action Plan indicates that the HSAC is recommending use of general fund dollars, approval of the Action Plan does not approve HSAC's General Fund recommendations. Human Services Advisory Committee recommendations for the General Fund budget will be included in the normal budgetary process. For more information, the HSAC minutes start on page 66 of the Action Plan. FISCAL INFORMATION All projects and programs approved under the 2002 Action Plan are funded with CDBG and HOME funds. No general fund dollars are included in the proposed 2002 Action Plan. ATTACHMENTS Attachment 1: Community Development Funding Summary Attachment 2: CDAC Funding Recommendations Chart Attachment 3: HSAC 2001 Funding Recommendations Chart Attachment 4:2002 Action Plan for Housing and Community Development 2 Prepared by: Barbara Ross Community Developmem Administrator Respectfully submitted: Linda Ratliff Director of Community Developmem Revised: COMMUNITY DEVELOPMENT ADVISORY COMMITTEE 2002 FUNDING SUMMARY 2002 CDBG FUNDING AVAILABLE GRANT 01/22/01 2002 HOME GRANT 2002 Entitlement Grant $ 1,108,777 $ 575,000 2001 Reallocated Funds $ 19,777 $ 2002 Program Income (Proposed) $ 27,000 $ 33,000 Total Funds Available $ 1,155,554 $ 608,000 Less: Funds Allocated to Administration Activities $ (231,100) $ (60,800) Less: Funds Allocated to Human Services Activities $ (169,283) $ Total Funds Available for CDAC Applications $ 755,171 $ 547,200 CHDO Setaside (15% OF HOME Grant) $ $ 86,250 Revised: COMMUNITY DEVELOPMENT ADVISORY COMMITTEE 2002 FUNDING SUMMARY 2002 CDBG FUNDING AVAILABLE GRANT 01/22/01 2002 HOME GRANT 2002 Entitlement Grant $ 1,108,777 $ 575,000 2001 Reallocated Funds $ 19,777 $ 2002 Program Income (Proposed) $ 27,000 $ 33,000 Total Funds Available $ 1,155,554 $ 608,000 Less: Funds Allocated to Administration Activities $ (231,100) $ (60,800) Less: Funds Allocated to Human Services Activities $ (169,283) $ Total Funds Available for CDAC Applications $ 755,171 $ 547,200 CHDO Setaside (15% OF HOME Grant) $ $ 86,250 ~ oo©o© ooo o o©®o o®~.o ~ ~o© ~o©o© o ~o~o~o oooo~ ooooo~o~o ~oooooo ~ 000~0~00 0~00~0000000~0~0~ 0000000~ 0 ooo o o o oooo~_ _ ~oo oooo o o o ~ o 0 0 0 0000 O0 00~0 0 ~ 0 , 88 8 ooo oo~8 800 oooo 800 o 888 00~ O0 00~0 O~ ~ ~ Oo ~ ~ OO~o ~oo ~o~ ~ ~ q~o O0 0 00~ O0 0 ~00 00~0 00~0~ ~0© 0 .- ~ '- ~ ~ ._._ 'ID c- 0 c- 0 '.,~ d < CITY OF DENTON 1-YEAR ACTION PLAN 2002 Program year Housing Park Facilities Public Improvements Human Services for housing and community development Prepared for the U.S. Dept. of Housing and Urban Development Presented to Denton City Council on April 16, 2002 www.cityofdenton.com ADA/EOE/ADEA TABLE OF CONTENTS mo Summary of Action Plan 1. Introduction ............................................................................................................. 1 2. Funding Summary .................................................................................................... 2 3. Local Match ............................................................................................................. 2 4. Citizen Participation ................................................................................................. 2 B. Funding Sources 1. Summary .................................................................................................................. 3 2. SF-424 Application - CDBG Funds .......................................................................... 5 3. SF-424 Application - HOME Funds .......................................................................... 6 C. Projects/Activities 1. Summary .................................................................................................................. 7 1. CPD Listing of CDBG and HOME Proposed Projects .............................................. 8 2. Other Resources Available ...................................................................................... 26 D. CP Strategies and Proposed Projects ............................................................................ 27 mo Go H. I. J. 1. Housing Strategies ................................................................................................. 27 2. Continuum of Care Strategies ................................................................................. 28 3. Lead-Based Paint Strategies ................................................................................... 32 4. Human Services Strategies ..................................................................................... 32 5. Infrastructure & Public Facilities Strategies ............................................................. 33 6. Demolition Strategies ............................................................................................. 33 7. Anti-Poverty & Economic Development Strategies ................................................. 34 Proposed Project Map .................................................................................................. 35 Other Program Requirements 1. HOME - Forms of Investment ................................................................................ 36 2. HOME - Tenant-Based Rental Assistance .............................................................. 36 3. Monitoring Standards and Procedures ................................................................... 37 4. Institutional Structure ............................................................................................. 38 Certifications ................................................................................................................ 39 Minutes from Public Hearings ...................................................................................... 44 Minutes from the Community Development Advisory Committee ................................. 49 Minutes from the Human Services Advisory Committee ............................................... 66 SUMMARY INTRODUCTION This documem serves as the City of Demon's 2002 Action Plan for the Community Developmem Block Gram (CDBG) and HOME Investmem Partnership (HOME) Programs. In accordance with 24 CFR Part 91.220 of Title I of the Housing and Community Developmem Act of 1974, as amended, the City of Demon is required to submit a One-Year Action Plan to the U.S. Departmem of Housing and Urban Developmem. The plan outlines the specific projects and services that will be funded during the 2002 program year to address Demon's strategies stated in the 2000-2004 Consolidated Plan. Demon's 2000 Consolidated Plan describes the city's strategies and resources for the next five years creating a stronger link between the needs in the city, strategies and available resources. Based on the needs analysis of the City of Demon, the following five year strategies were idemified in 2002 year and are reaffirmed this year: Housing Strategies: Assistance to Renters, Owners, and Homebuyers and the Production of Affordable Units; Continuum of Care Strategies: Prevention, Outreach, Intake, Assessment & Referral, Housing Services (Emergency Shelter, Transitional Housing, Permanem Housing w and w/o Supportive Services), and Support Services; Lead-Based Paint Strategies: Education and Reduction of Lead-Based Paint Hazardous to Owners and Homebuyers; Human Services Strategies: Developmem of additional childcare, Improvemem of health care services, Cominue work with Cominuum of Care Planning Committee, Case Coordination and Information Referral, Support of growth strategy in community and Continued allocation support to meet urgent needs; Infrastructure Improvement Strategies: Improvements to Streets, Sidewalks and Water/Sewer lines, Drainage Improvemems, Rehabilitation and Expansion of Public Facilities, Park Improvements and Demolition of Substandard Structures; Anti-Poverty & Economic Development Strategy: Support Training and Employment Activities, Expand Education Opportunities, Support of Section 3 goals, and Support of Start-up and expansion industry. Page 1 FUNDING SUMMARY The City of Demon is curremly an emitlemem city for the Community Developmem Block Gram and HOME Investmem Partnership Programs. The City of Demon's 2002 CDBG allocation is $1,128,554 (includes $19,777 in 2001 CDBG reallocated funds). The HOME allocation is $575,000. A total of $60,000 in program income is projected for the 2002 program year. SF-424 applications for Community Developmem Block Gram and the HOME Partnership Investmem Program funds are on page 5 and 6, respectively. The HOME program also requires a local match. LOCAL MATCH The City of Demon's local match for the HOME program is $129,375. The HOME program requires a participating jurisdiction to provide a 25% match of the federal HOME funds. The 25% match of federal HOME funds excludes administrative allowances of 10%. The City of Demon will provide the match from a variety of sources including the following: Federal Home Loan Bank funds awarded to the City of Demon and the Demon Affordable Housing Corporation (DAHC) for home ownership assistance and home improvemem. Demon County Housing Finance Corporation and other non-federal funding awarded to Demon Affordable Housing Corporation and City of Demon. o City of Denton Impact Fee Grant Awards used to pay required impact fees on HOME eligible projects. CITIZEN PARTICIPATION To ensure citizen participation in the 2002 Action Plan process, the city followed its Citizen Participation Plan. Public hearings were held November 29, 2001 and December 3, 2001. The public hearings updated citizens on the status of currem programs and activities and asked how the citizens how they felt the 2002 funds should be spem. At least one of the public hearings was held within a low and moderate-income neighborhood. Information on the public hearing was developed in English and Spanish and mailed out to neighborhood associations; service agencies and beneficiaries; city council, Human Services Committee (HSC) and Community Developmem Advisory Committee (CDAC) members; churches; contractors; participating lenders; citizens who attended previous public hearings; and imerested citizens. Notices were also placed on the Community Bulletin Board - local cable station and in the Denton Record-Chronicle. Page 2 After the Action Plan was drafted, advertisemems were placed in the Demon Record-Chronicle summarizing the plan and announcing to the public where the Action Plan was available for review, and the process for submitting commems to the City of Demon. The advertisemems also included information on the upcoming public hearing. Notices were also included in the quarterly Community Development Newsletter that is mailed to all agencies, applicants, Realtors, participating lenders, committees, and city employees. All commems received from the public were addressed before submitting the plan to the U.S. Departmem of Housing and Urban Development. To ensure citizen participation at all stages of the 2002 Action Plan process, one public hearing will be scheduled on April 16, 2002 during a City Council Meeting to give citizens the opportunity to commem on the 2002 proposed projects and activities. See Appendix H on page 44 for minutes of the public hearings and responses to the commems. 2002 FUNDING SOURCES Emitlemem Gram (Includes Reallocated Funds) CDBG $1,128,554 ESG $0 HOME $575,000 HOPWA $0 Total $1,703,554 Prior Years' Program Income Not Previously Programmed Or Reported CDBG $0 ESG $0 HOME $0 HOPWA $0 Total $0 Reprogrammed Prior Years' Funds CDBG ESG HOME HOPWA Total $0 $0 $0 $0 $0 Total Estimated Program Income CDBG Loan Repaymems HOME Loan Repayments Total $27,000 $33,000 $60,000 Section 108 Loan Guaramee Fund $0 Total Funding Sources $1,763,554 Page 3 Other Funding Sources Local Contributions Conventional Loans - DAHC Denton County Housing Finance Corp. City of Demon Funds FHLB of Dallas Local Grants to Subrecipients Program Income to Subrecipients Special Events United Way of Demon County Denton County Homebuyer Funds U.S. Department of HUD State of Texas FEMA Ryan White Care Act Total Submitted Proposed Projects Totals Un-Submitted Proposed Projects Totals $567,952 $2,127,523 $25,000 $313,442 $185,000 $65,405 $588,297 $42,000 $252,872 $25,000 $105,000 $43,000 $10,300 $8,000 $38,000 $4,568,188 $1,765,968 $0 Page 4 Application for Federel Assistance 40aCl. e R~l~ecl by ~e~er~ 7~5~4 8[ae ~li~lton I~enfifi~r Suite Ben[o~ C:.ounl~ If~: Con~imatio¢ .¢ F~ere~ ~mesl;ic A~¢s1~r,ce Numl;en: Number: 14.218 ,~-Jetan~ Tittle:: Co~muni~ De~h~pm~t Bt~c~ ~r~![ '2~ ¢ Dentem Te~ Stad~ ~e I E~ Name ~ F~! ~: O,$ De~. of ~u~n~ & U~ban ~elo~n~nt 15. Esbm~.ed Fu~n~n~: f P~ram I~rne Review ~$: Program not =ore, ad !7 is t~ Ap¢iceni De4im~len Any Fedem!l ~ Page 5 Application for Federal Assistance 30~ R~ived by- Sta~e 756£005!4 7560035~ 4 Ty~, of Type: ~,0 ~,~;~0g of Federal Oom~sfi~ Ass,isl~nce ~mbe¢: ¢a:~1~9 Number:: i4-Z:3!~ ~rnmuni4y ~e~t Oiv~fon (940) hame ,~ Fe~al ~: U,$, ~pL ~f H;~USi~ & Y:rba~ H~si~ rehab~n~ a~sistanc~ [e CHDO, horneow~er~ip ~stsla~ce a,~ pr~mm edmins~rallion OB~I/~2 I 07~1Y03 ! 8, E~li~led F~r~din9 a., Faciaral $576,000 $0 ~ St-a~e S0 em Oihe~ f. Pr~ram ~ncome 9, To~l $ ~8,,0D0 13,4 ~, 13,4 Rewiew Status: Pr~r~ FI~ rl;XY~e[rt~d $7. Is ~he ~pl~ Delinquent o,n A.q~' Federal NO 1',El. To ~l~e ~st oI~ kno,~tedge ~nd ~ie¢,, ~ ! ~a i~ this ~l¢~l;ioWpreap¢~[on ~ t~e en~ ~rre;-,t. ~h~ ~n~ ~s bacon duly a~tlofi~ (~) ~94)307 Ci[? dm Si~a~re o~ ~lho¢i~ed Rcpre~nt~l~ive e, [;~ Page 6 2002 PROJECTS/ACTIVITIES SUMMARY The City of Demon's total federal funding for 2002 is $1,763,554. Program funds have been allocated to an array of projects and activities to benefit low and moderate-income households. Each project is described in detail from pages 8 to 25 and is arranged by project number. See the following list of CDBG and HOME proposed projects and activities for their assigned project and page number: Page # Project Name CDBG HOME Project # 8 Adult Day Care of North Texas $5,733 $0 8 9 AiDS Services-Nutrition $15,000 $0 9 10 CDBG Administration $231,100 $0 1 11 DAHC (AHOP Program) $0 $150,000 2 12 DCCD School Playground Project $17,000 $0 3 13 Family Health Care, inc. $30,000 $0 10 14 Heritage Oaks Project $60,000 $0 16 15 HOME Administration $0 $60,800 5 16 Home improvemem Program $109,499 $311,386 6 17 Homebuyer Assistance Program $487,672 $3,446 7 18 HOPE, inc. $30,000 $0 11 19 imerfaith Ministries $17,250 $0 12 20 Minor Repair Program $81,000 $0 4 21 PARD: ASAS/TRAC $17,000 $0 13 21 PARD: King's Kids Day Kamp $19,800 $0 14 23 PARD: Owsley Summer $19,500 $0 15 24 Salvation Army $15,000 $0 18 25 Special Needs TBRA $0 $82,368 17 Total Funding Allocated to Projects $1,155,554 $608,000 Funding Available ($1,155,554) ($608,000) Funds $0 $0 Unprogrammed Page 7 Page 8 Page 9 g Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 o~ c~ Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 OTHER RESOURCES AVAILABLE Also, during the 2002 program year, the City of Denton plans to undertake additional activities/programs to address local objectives and strategies using City of Denton General Fund dollars. The Human Services Advisory Committee has recommended funding the following human services program. It is recommended that these activities be funded through the Denton's general fund budget. City Council will consider approval of the following recommendations in September 2002. Category / Agency General Funds Other Funds Aging Services RSVP $7,400 $311,150 SPAN, inc. $29,000 $2,303,597 Fairhaven Retirement Home $7,500 $443,618 Emergency Services: Community Food Center $3,000 $37,300 Special Needs Services Adult Day Care of North Texas $3,267 $188,688 Riding Unlimited $ 825 $141,275 Youth, Children & Family Services Children's Advocacy Center $10,000 $452,000 Court Appointed Special Advocates, Denton Co. $8,000 $289,252 Denton Christian Preschool $30,000 $204,562 Denton City Co. Day School $35,000 $321,850 Denton County Friends of the Family $36,000 $1,622,061 Denton Co. MHMR (SIERRA Program) $9,000 $0 Denton Family Resource Center $7,650 $123,585 Fred Moore Day Nursery School $39,000 $259,098 Owsley Community School - Education $14,750 $19,000 Owsley Community School - After School Care $13,000 $0 Sickle Cell Disease Assoc. $4,500 $302,000 Information & Referral HelpNET $22,500 $50,025 Total Page 26 STRATEGIES & PROPOSED PROJECTS The City of DeNon's 2002 funding has been allocated to programs and activities that meet objectives stated in Denton's five-year strategic plan. Following is the list of the five-year strategies and proposed outcomes stated in the Consolidated Plan and proposed projects and activities that will be undertaken to meet those strategies. 5-yr Consolidated Plan 5-yr Consolidated Plan 1-yr Action Plan Strategy Outcome Measures Proposed Activities RENTAL HOUSING STRATEGIES increase the number of units of 1)No net loss in the number of Support of Denton renal assistance available to DeNon units of assistance available from Housing Authority and citizens. DHA. 2) Collaborative efforts Special Needs TenaN between DHA and the City of Based ReNal Assistance Denton to increase available rental subsidies. Encourage the developmeN of self- initial program objectives would be HOPE, inc. sufficiency programs that move to move 3 to 5 households per year Interfaith Ministries households off renal subsidies, off renal assistance or other public assistance programs, approximately 20 households over the five-year period. Encourage and support the Rehabilitation of 4 to 5 rental units Residual Funds from the rehabilitation of substandard units in per year. Approximately 25 units ReNal Rehabilitation the city. over the five-year period. Program Encourage and support the Production of 50 additional DeNon Affordable construction of additional affordable affordable renal units each year, Housing Corp. and City rental units. 250 over the five-year period, of Denton's Impact Fee Grant Waivers Encourage and assist low-income See Homeownership strategy Homebuyer Assistance renters in Denton to become Program and Denton homeowners. Affordable Housing Corp. - Affordable Housing Opportunity Program Page 27 OWNER-OCCUPIED HOUSING STRATEGIES Educate the community regarding Attendance at classes by 10 Home Improvement budgeting, home maiNenance, homeowners each year of the five- Program, Homebuyer saving for major repairs and home year period for a total of 50 Assistance Program and cleaning practices, homeowners. Homeownership classes Assist low and moderate-income Average of 15 emergency repairs Minor Repair Program households with emergency housing each year of the five-year period repairs and weatherization, for a total of 75 repairs. Encourage low and moderate- Average of 7 units will be brought Home ImprovemeN income homeowners to maiNain up to City of DeNon building code Program their units up to curreN City of standards on an annual basis. This DeNon code standards, will include renovated and reconstructed units. Approximately 35 loans will be provided over the five-year period HOMEOWNERSHIP & PRODUCTION OF AFFORDABLE UNITS Educate community regarding 150-200 households participating Homebuyer Assistance homeownership opportunities and in homeownership classes each Program and responsibilities, year of the five-year period. Homeownership classes Encourage homeownership among Move 60 Denton renter households Homebuyer Assistance DeNon's low and moderate-income to homeownership each year of the Program and DAHC's reNer households, five-year period. Affordable Housing Opportunity Program Encourage and support production Construction of an average of 15 Denton Affordable of affordable units, units per year over the five-year Housing Corp. period for an estimated total of 75 new units. CONTINUUM OF CARE STRATEGIES - PREVENTION Decrease the number of persons By the third year, provide Consumer Credit evicted from renal units or education to 100% of households Counseling, Homebuyer defaulting on mortgages, receiving housing assistance. Assistance Program, DAHC's AHOP program, HOPE Inc. and Homeownership classes. Support funding targeted toward Fund an additional $50,000.00 in INerfaith Ministries, assistance with renal and Nility combined renal and Nility HOPE Inc., Salvation deposits, deposits. Army, AIDS Services of North Texas Page 28 Support the DeNon Housing Funding partnerships will be Support of DeNon Authority's requests for increased developed with the local housing Housing Authority subsidies and Section 8 renal authority in order to provide assistance vouchers, and increase additional subsidies and affordable the number of vouchers allocated to housing units. residents. CONTINUUM OF CARE STRATEGIES - OUTREACH Increased coordination of available Add at least 15 organizations to HelpNET, and services to make access to services the existing service coordination Continuum of Care more efficient and to address gaps system. Planning Committee in services. insure that agencies serving Train staff from participating HelpNET and CoNinuum homeless hh's are educated on agencies on the service of Care Planning available services and taking part in coordination system. Committee the coordinated efforts. Coordinate funding partnerships to Partnerships will be created to Continuum of Care better provide coordinated services increase funding by 50% for Planning Committee and to foster collaborative efforts, services provided to homeless households. CONTINUUM OF CARE STRATEGIES - INTAKE, ASSESSMENT & REFERRAL Improve intake, assessment and Add an additional 15 agencies to HelpNET and Continuum referral to expedite provision of the service coordination system of Care Planning assistance, and provide a central repository of Committee information for improved coordination and iNake. improve iNake, assessmeN and Add an additional 15 agencies to HelpNET and CoNinuum referral to expedite provision of the existing service coordination of Care Planning assistance, system and link each of these Committee agencies with existing database. CONTINUUM OF CARE STRATEGIES - HOUSING SERVICES - EMERGENCY SHELTER Facilitate the development of Develop and open an emergency Continuum of Care increased shelter space for families shelter by June 2005. Planning Committee and pregnant women. Work with existing agencies and Increase assistance to families Continuum of Care public officials to determine needing shelter for 5 days to 30 Planning Committee alternative methods to assist days. Investigate bringing short- households who have exceeded term family units to the available shelter tenure, community. Page 29 Investigate an emergency shelter for Determine whether a youth shelter Continuum of Care youth and the legal ramifications of should be created in DeNon and Planning Committee such a shelter, investigate funding sources, legal barriers, and poteNial providers. CONTINUUM OF CARE STRATEGIES - HOUSING SERVICES - TRANSITIONAL HOUSING Increase transitional housing for Assist a minimum of 20 additional HOPE, Inc. homeless households with special families over the five years. 75% needs, of total homeless families receiving transitional housing will come from target special needs population. Develop affordable transitional An additional 20 transitional HOPE, Inc., Denton housing units for homeless housing units will be developed Affordable Housing households, through the join effort. Corp., DeNon County Friends of the Family CONTINUUM OF CARE STRATEGIES - HOUSING SERVICES - PERMANENT HOUSING W/O SUPPORTIVE SERVICES Support and advocate for local Committee representatives will Continuum of Care public policies to support affordable make at least 3 preseNations per Planning Committee housing and land acquisition, year to city officials, local electorate and community leaders regarding affordable housing. CoNinue to develop affordable Construct or develop of an average DeNon Affordable housing and more appropriate of 25 units per year over the five- Housing Corp., housing for homeless households, year period for an estimated total Homebuyer Assistance of 125 new units. Program and Christian Community Action CONTINUUM OF CARE STRATEGIES - HOUSING SERVICES - PERMANENT HOUSING W/SUPPORTIVE SERVICES Continue to develop permanent Create at least 15 new permanent Denton Affordable supportive housing units for supportive housing units for Housing Corp., AIDS homeless households with special homeless households with special Services of North Texas needs, needs, and Denton County MHMR. Page 30 CONTINUUM OF CARE STRATEGIES - SUPPORT SERVICES Continue expansion of service An additional 15 service providers HelpNET and Continuum coordination and collaboration will be added to the service of Care Planning among providers to assist clients coordination computer network, Committee toward maintaining self-sufficiency, including a minimum of 5 in Lewisville. Expand affordable, quality daycare Additional childcare slots for Fred Moore Day Nursery, for homeless households, homeless households will be City County Day School, available. Denton Christian Preschool and Child Care Management System and Friends of the Family Promote affordable health care and An increase in public-private Continuum of Care health education for uninsured and partnerships will take place. Planning Committee and underinsured homeless households. Human Service Advisory Committee. Advocate for improved The Continuum of Care Committee Continuum of Care transportation to meet the needs of will make recommendations to Planning Committee homeless households public officials for improvement in transportation system. LEAD-BASED PAINT STRATEGIES Educate owners/first-time 150 -200 households participating Home Improvement, homebuyers on hazards and safe in the successful homeownership Minor Repair and handling of lead-based paint, workshops each year of the five- Homebuyer Assistance year period. Programs Reduce Lead-Based Paint Hazards Average of 50 units annually will Home Improvement, residential units, receive lead-based paint reduction Minor Repair and work and clearances. Homebuyer Assistance Programs Page 31 HUMAN SERVICES STRATEGIES Explore various options for the Evidence of additional child care Human Services Advisory development of additional childcare opportunities; Implementation of Committee, United Way, available to low-income households, voucher program or increase in CCMS, Fred Moore Day current assistance levels; and School, Denton Christian Number of public-private Preschool, North Central collaborations that take place. Texas Workforce Board and City County Day Nursery Improve health care services Number of public-private Human Services Advisory available to low-income households, collaborations that take place. Committee, Family Information describing Health Care, United Way, effectiveness of the program in CHIP Coalition, Health Denton and Denton County Communities Task Force Positive response from local and Flow Foundation physicians and an increase in physician providing services to Medicaid-eligible households. HSAC to work with the CoMinuum Not Applicable. CoMinuum of Care of Care Planning Committee to Planning Committee focus on programs benefiting persons who are homeless or poteMially homeless Discuss and implemeM a strategy to Not Applicable. HelpNET and Human expand the curreM system of case Services Advisory coordination and ceMralize Committee information among service providers including bM not limited to - emergency financial services, housing services and health care. Support a growth strategy that Not Applicable. City of DeMon and includes human services as an Human Services Advisory esseMial part of the community's Committee infrastructure. During the five-year period, HSAC will recommend moving to a human services general fund set aside that is at least 1% of the total general fund budget. Page 32 Continue allocation of scare AIDS Services, Denton County MHMR, Fairhaven resources to meet urgent Homemaker Services, Family Health Center, HOPE Inc., community needs as identified interfaith Ministries, PARD: ASAS/TRAC scholarships - through a community assessment Owsley Summer Playground Program - King's Kids Day process. Kamp, RSVP, SPAN inc., Community Food Center, Salvation Army, Court Appointed Special Advocates, Denton City County Day Nursery, Denton County Friends oFthe Family, Denton Family Resource Center, Fred Moore Day Nursery School, Sickle Cell Disease Assoc., Denton Christian Preschool, Adult Day Care, HelpNET, Adult Day Care of North Texas, Children's Advocacy Center, Owsley Community School and Riding Unlimited INFRASTRUCTURE & PUBLIC SERVICE FACILITIES STRATEGIES Street paving and repaying, 21,000 square yards of paving Not applicable this year. installation of curb and gutter, and/or repaying completed. Installation oFnew sidewalks and Installation o1'2,325 square yards Not applicable this year. replacement sidewalks, oF new sidewalks. Installation oF water and sewer Installation of 200 feet of new Not applicable this year. lines. Connection of residential sewer and 2,000 feet of new water units to services, lines over the 5-year period. Installation of drainage Eight to ten residential properties Not applicable this year. improvements removing residential no longer designated as being in areas from floodplain, the flood plain. Rehabilitation and expansion of improvements to 2 or more public Denton City County Day public services facilities, service facilities that enhance School improvements services to low/mod clientele, and Heritage Oaks Project improve and/or expand park improvements to 2 park facilities Not applicable this year. facilities including open space, by 2005. playground and other recreational Facilities. DEMOLITION STRATEGIES Continue to demolish substandard To demolish 35 structures during Continuation of buildings to improve the appearance the five-year period. Demolition Program with and safety of neighborhoods. Residual Funds Page 33 ANTI-POVERTY & ECONOMIC DEVELOPMENT STRATEGIES Support training and expand Observe a measurable increase in Support to North Texas training and employment activities the number of poverty and low- Human Resource Group targeted to poverty and very low- income households who achieve income households, self-sufficiency. Expand educational opportunities Feedback indicating information HOPE Inc., Denton for those seeking transitional was disseminated. 25-35 hh (over Affordable Housing housing or other housing support 5 years) in transitional prog receive Corp., and Support of services, counseling services. Consumer Credit Counseling Encourage support of Section 3 Over the five-year period 25+ Not applicable this year. goals by local contractors, individuals hired for projects by private contractors. Encourage start-up and expansion Loan assistance to 25 Continuation of Small of micro/cottage industries microbusinesses over the five-year Business Program with supporting very low-income hhs. period, residual funds. Page 34 2002 PROPOSED PROJECT MAP With Minority Concentrated areas by Census Tracts Denton, Texas ] I UI'IIVER~ITY I}R ~q lB By Cer~,.w Tract~ r~[ 20 - $0% ~4~ - 100% 2002 Projects and Activities 1 Adult Day Care of North Texas 2. AIDS Services of North Texas 3. Denton City County Day School ProJect 4. Family Health Care, Inc. 5. Heritage Oaks Retirement ProJect 6. PARD: Kings Kids Day Camp 7. PARD: Owsley Summer Playground 8. Salvation Army Communi _ty-Wide Activities · DAHC - Affordable Housing Program · CDBG and HOME Administration · Home Improvement Program · Homebuyer Assistance Program · HOPE, Inc. · Interfaith Ministries · Minor Repair Program · PARD: ASAS Scholarships · Special Needs Tenant-Based Rental Assistance Page 35 OTHER PROGRAM SPECIFIC REQUIREMENTS HOME PROGRAM FORMS OF INVESTMENT The City of DeNon, through the Homebuyers Assistance (HAP) will provide subsidies to low-income homebuyers. Under each program the maximum HOME subsidy will be $14,900. This amount includes all investmeN that enables the family to purchase the unit. This sets up a 5, 10 or 15-year recapture period for all homebuyers. The subsidy is provided as a 5, 10 or 15 year deferred forgivable loan. The borrower agrees to occupy the property as his/her primary residence for the term of the loan from the execution date of the promissory note and deed of trust. The borrower must also agree to pay all mortgage payments, taxes and other assessments on the property in a timely manner. In the even the borrower complies with the terms of the promissory note, deed of trust, and the HAP Program, the City of DeNon agrees to release the maker of the note from paymeN of the loan. Upon the borrower's failure to carry out the agreement and program requirements the entire amount of the loan will be due and payable in full immediately from net proceeds*. Recaptured funds from the HAP Program will be used to assist other first-time homebuyers. Funding agreemeNs and/or coNracts with community housing developmeN corporations and/or subrecipieNs will include a requiremeN that the organization comply with HOME regulations in regard to coNinued affordability of assisted units. There are no other forms of investmeN that are not described in §92.205(b) by the City of DeNon. *Net proceeds - defined as the sale price minus loan repaymeN and closing costs. TENANT BASED RENTAL ASSISTANCE The City ofDeNon's TenaN-Based ReNal Assistance Program (TBRA) has been developed to assist very low-income households in obtaining safe, sanitary housing. According to the 2000 Consolidated Plan for Housing and Community Development, 54% ofreNers are very low income. The Plan also states that there are 491 very low-income households on waiting lists for Section 8 subsidies or subsidized housing units. The elderly population in DeNon has increased by 29% since 1980. About 40% of the elderly in DeNon are reNers. More than 65% have incomes at or below 50% of the area median income. Housing studies indicate that there is adequate housing for middle and upper income elderly. However, service providers state a need for additional housing that is within the reach of low and very low-income elderly. Support services, designed to allow the elderly to remain independeN, are needed as a supplement to the housing assistance. Page 36 Information provided by citizens at a December 1997 public hearing indicated a need for renal assistance targeted to persons with disabilities. Citizens noted that there was no assistance available and that the waiting list for Section 8 assistance was extremely long. The information discussed in the 2000-2005 Consolidated Plan concerning the need for affordable renal housing for the elderly and citizen requests for assistance for persons with disabilities has led the City of DeNon to adopt a TenaN Selection Policy. This policy will be used to determine appropriate participants under the City's Tenant-Based Rental Assistance program. TBRA is an esseNial elemeN of DeNon's Consolidated Plan and will serve to expand the supply of affordable, deceN, safe and sanitary housing for very low-income households. MONITORING STANDARDS AND PROCEDURES The City of DeNon will complete an annual comparison of the objectives stated in the 5-year Consolidated Plan with actual accomplishmeNs. Based on the comparison the City of DeNon will consider making any changes or updates to the 5-year Consolidated Plan. The City of DeNon provides CDBG, HOME and General funds to several non-profits agencies and departments providing supportive services. The City's Human Services Coordinator monitors agencies on a daily basis. Each year agency staff is provided with training on financial procedures and data collection. Agency staff is provided with appropriate Federal guidelines and OMB circulars to ensure that they have access to pertineN information. Agencies are required to provide quarterly beneficiary and financial reports. A year-end report is required to detail annual expenditures, beneficiary information, funding sources and major accomplishmeNs. Each year, the Human Services Coordinator completes a risk analysis based on established criteria. On-site monitoring visit are completed on all "high risk" organizations. The on-site monitoring includes a review of clieN files, financial and accouNing records, and procuremeN procedures. IndependeN audits are also submitted and reviewed by the City staff. A similar process is also followed to monitor the DeNon Affordable Housing Corporation, a certified CHDO. The City's Community DevelopmeN Administrator with the help of the Coordinator monitors the CHDO on a regular basis to ensure that the non-profit is meeting HOME regulations. Programs and projects carried out by the City are monitored daily. Staff maiNains checklists on individual projects to ensure that all required procedures have been completed. The Housing Rehabilitation Staff maiNains records on all rehabilitation projects. The Community DevelopmeN Coordinator maiNains records for the Homebuyer Assistance Program and the Administrator maiNains records on public infrastructure projects. The Administrator reviews and certifies all applications prior to provision of assistance. A year-end report that details expenditures, revenue, beneficiary information and major accomplishmeNs is also required from all City programs and projects. Page 37 INSTITUTIONAL STRUCTURE The City of Demon's 2000 - 2005 Action Plan notes four "gaps" in organizational structure that hinder effective housing and social services delivery. These gaps include the following with the City's efforts to ameliorate these conditions during the coming year: 1. More effective coordination among Cominuum of Care agencies. Community Developmem will cominue to work with the newly formed Demon Homeless Coalition. This group was formed through the effort to create a joim Cominuum of Care plan between the cities of Demon and Lewisville. The Demon County Homeless Coalition will use staff members from the City of Demon and Lewisville to facilitate planning and implememation of homeless service activities. Four agencies serving homeless in the area and the City of Demon collaborated on an application for an Emergency Shelter Gram from the Texas Departmem of Housing and Community Affairs. The application was awarded approximately $50,000 for homeless services in the Demon area. With City staff from Denton and Lewisville acting as facilitators, homeless providers will continue to meet to discuss services and plan for the future. 2. Initiation of advocacy efforts and strategic planning by housing providers. Local housing providers will continue to be encouraged to participate in Continuum of Care program efforts. The Demon Affordable Housing Corporation, Habitat for Humanity and the Demon Housing Authority are active participams. The City has provided support for a HUD COPC renewal gram by the University of North Texas. If funded, the City of Demon and UNT plan to facilitate development of a housing advocacy organization. If the grant is not funded, the City will determine what other actions may be taken to facilitate the developmem of this type of organization. Recemly the Demon Housing Coalition has begun meeting and is developing a short-range advocacy strategy. 3. Lack of involvemem by private developers and builders in the affordable housing production system. Additional actions to help improve in the areas described in the 2000 - 2005 Consolidated Plan will cominue over the next four years. These will include talking with local home building groups regarding the construction of affordable housing. 4. Lack of experience by private contractors in lead hazard reduction and lack of funding to complete projects. The Community Developmem housing staff plans to provide local contractors with information on lead-based paim training available in the area and encourage their attendance. Also, the City of Denton has partnered with the City of Fort Worth on a HUD Lead Hazard Control Grant application. The application included a request for funding to complete lead hazard comrol work on existing housing units. Funds for contractor training were also requested. Page 38 CERTIFICATIONS In accorda~ace with the applicable statutes and the regulations governing the consolidated plan regulations, the jurisdiction certifies that: Affirmatively Further Fair Housing -- The jurisdiction will affirmatively further fair housing, which mea~as it will conduct an analysis of impediments to fair housing choice within the jurisdiction, take appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain records reflecting that a~aalysis and actions in this regard. Anti-displacement and Relocation Plan -- It will comply with the acquisition and relocation requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, aaad implementing regulations at 49 CFR 24; and it has in effect and is following a residential antidisplacement and relocation assistance plan required under section 104(d) of the Housing and Community Development Act of 1974, as amended, in connection with any activity assisted with funding under the CDBG or HOME programs. Drug Free Workplace -- It will or will continue to provide a drug-free workplace by: Publishing a statement notifying employees that the unlawful ma~aufacture, distribution, dispensing, possession, or use ora controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition; 2. Establishing an ongoing drug-free awaxeness program to inform employees about - (a) The dangers of drug abuse in the workplace; (b) The grantee's policy of maintaining a drug-free workplace; (c) Any available drug counseling, rehabilitation, and employee assistance programs; and (d) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; Making it a requirement that each employee to be engaged in the performance of the gram be given a copy of the statement required by paragraph 1; Notifying the employee in the statement required by paxagraph 1 that, as a condition of employment under the gram, the employee will - (a) Abide by the terms of the statement; and (b) Notify the employer in writing of his or her conviction for a violation ora criminal drug statute occurring in the workplace no later than five calendar days after such conviction; Notifying the agency in writing, within ten calendar days after receiving notice under subparagraph 4(b) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant; Talcing one of the following actions, within 30 calendar days of receiving notice under subparagraph 4(b), with respect to any employee who is so convicted - (a) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as axnended; or (b) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency; Making a good faith effort to continue to maintain a drug-free workplace through implementation ofpatagraphs 1, 2, 3, 4, 5 and 6. Page 39 Anti-Lobbying -- To the best of the jurisdictioffs knowledge a~ad belief: No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of a~ay Federal grant, the making of any Federal loan, the entering into of a~ay cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement; If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence a~a officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its inslructions; and It will require that the language of paragraph (n) of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify a~ad disclose accordingly. Authority of Jurisdiction -- The consolidated plan is authorized under State and local law (as applicable) and the jurisdiction possesses the legal authority to carry out the programs for which it is seeking funding, in accordance with applicable HUD regulations. Consistency with Plan -- The housing activities to be undertaken with CDBG, HOME, ESG, aaad HOPWA funds ate consistent with the strategic plan. Section 3 -- It will comply with section 3 of the Housing and Urban Development Act of 1968, a~ad implementing regulations at 24 CFR Part 135. Signature of Authorizing Official Date Denton City Manager Title of Authorized Official Specific CDBG Certifications The Entitlement Community certifies that: Citizen Participation -- It is in full compliance a~ad following a detailed citizen participation plan that satisfies the requirements o1'24 CFR 91.105. Community Development Plan -- Its consolidated housing and community development plan identifies community development and housing needs and specifies both short-term a~ad long-term community development objectives that provide decent housing, expand economic opportunities primarily for persons of low and moderate income. (See CFR 24 570.2 and CFR 24 part 570.) Following a Plan -- It is following a current consolidated plan (or Comprehensive Housing Affordability Strategy) that has been approved by HUD. Use of Funds -- It has complied with the following criteria: Maximum Feasible Priority. With respect to activities expected to be assisted with CDBG funds, it certifies that it has developed its Action Plan so as to give maximum feasible priority to activities that benefit low and moderate income families or aid in the prevention or elimination of slums or blight. The Action Pla~a may also include activities which the grantee certifies are designed to meet other community development needs having a particular urgency because existing conditions pose a serious and immediate threat to the health or welfare of the community, a~ad other financial resources are not available); Page 40 Overall Benefit. The aggregate use of CDBG funds including section 108 guaranteed loans during program year(s) 2002 (a period specified by the grantee consisting of one, two, or three specific consecutive program years), shall principally benefit persons of low and moderate income in a manner that ensures that at least 70 percent of the mnount is expended for activities that benefit such persons during the designated period; Special Assessments. It will not attempt to recover aaay capital costs of public improvements assisted with CDBG funds including Section 108 loaaa guaranteed funds by assessing any mnount against properties owned and occupied by persons of low and moderate income, including any fee charged or assessment made as a condition of obtaining access to such public improvements. However, if CDBG funds ate used to pay the proportion ora fee or assessment that relates to the capital costs of public improvements (assisted in paxt with CDBG funds) financed from other revenue sources, an assessment or charge may be made against the property with respect to the public improvements financed by a source other than CDBG funds. The jurisdiction will not attempt to recover any capital costs of public improvements assisted with CDBG funds, including Section 108, unless CDBG funds are used to pay the proportion of fee or assessment attributable to the capital costs of public improvements fina~aced from other revenue sources. In this case, an assessment or charge may be made against the property with respect to the public improvements f'manced by a source other tha~a CDBG funds. Also, in the case of properties owned and occupied by moderate-income (not low- income) families, an assessment or charge may be made against the property for public improvements fina~aced by a source other than CDBG funds if the jurisdiction certifies that it lacks CDBG funds to cover the assessment. Excessive Force -- It has adopted and is enforcing: A policy prohibiting the use of excessive force by law enforcement agencies within its jurisdiction against any individuals engaged in non-violent civil rights demonstrations; and A policy of enforcing applicable State and local laws against physically barring entrance to or exit from a facility or location which is the subject of such non-violent civil rights demonstrations within its jurisdiction; Compliance With Anti-discrimination Laws -- The grant will be conducted and administered in conformity with title VI of the Civil Rights Act of 1964 (42 USC 2000d), the Fair Housing Act (42 USC 3601-3619), and implementing regulations. Lead-Based Paint -- Its notification, inspection, testing and abatement procedures concerning lead-based paint will comply with the requirements of 24 CFR § 570.608; Compliance with Laws -- It will comply with applicable laws. Signature of Authorizing Official Date Denton City Manager Title of Authorized Official Page 41 Specific HOME Certifications The HOME participating jurisdiction certifies that: Tenant Based Rental Assistance -- If the participating jurisdiction intends to provide tenant-based rental assistance: The use of HOME funds for tenant-based rental assistance is an essential element of the participating jurisdiction's consolidated pla~a for expanding the supply, affordability, and availability of decent, safe, sanitary, and affordable housing. Eligible Activities and Costs -- It is using and will use HOME funds for eligible activities and costs, as described in 24 CFR § 92.205 through 92.209 and that it is not using and will not use HOME funds for prohibited activities, as described in § 92.214. Appropriate Financial Assistance -- Before committing any funds to a project, it will evaluate the project in accordance with the guidelines that it adopts for this purpose a~ad will not invest any more HOME funds in combination with other Federal assistance than is necessary to provide affordable housing. Signature of Authorizing Official Date Denton City Manager Tire of Authorized Official APPENDIX TO CERTIFICATIONS INSTRUCTIONS CONCERNING LOBBYING AND DRUG-FREE WORKPLACE REQUIREMENTS: A. Lobbying Certification This certification is a material representation of fact upon which relia~ace was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. B. Drug-Free Workplace Certification 1. By signing a~ad/or submitting this application or grant agreement, the grantee is providing the certification. The certification is a material representation of fact upon which reliance is placed when the agency awards the grant. If it is later determined that the grantee knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, HUD, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act. For grantees other than individuals, Altemate I applies. (This is the information to which jurisdictions certify). 4. For grantees who are individuals, Alternate II applies. (Not applicable jurisdictions.) Workplaces under grants, for grantees other than individuals, need not be identified on the certification. If known, they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application, or upon award, if there is no application, the gramee must keep the identity of the workplace(s) on file in its office and make the information available for Federal inspection. Failure to identify all known workplaces constitutes a violation of the grantee's drug-free workplace requirements. Workplace identifications must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (e.g., all vehicles ora mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio stations). Page 42 7. If the workplace identified to the agency changes during the performance of the grant, the grantee shall inform the agency of the change(s), if it previously identified the workplaces in question (see paragraph five). 8. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant: Place of Performance (Street address, city, county, state, zip code) Community Development Office, 100 West Oak, Suite 208, Denton City and County Texas 76201 Check __ if there are workplaces on file that are not identified here; The certification with regaxd to the drug-free workplace required by 24 CFR part 24, subpart F. Definitions of terms in the Nonprocurement Suspension and Debm-rnent common rule and Drug-Free Workplace common rule apply to this certification. Grantees' attention is called, in particular, to the following definitions from these rules: "Controlled substa~ace" means a controlled substance in Schedules I through V of the Controlled Substa~aces Act (21 U.S.C. 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15); "Conviction" mea~as a £mding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body chaatged with the responsibility to determine violations of the Federal or State criminal drug statutes; "Criminal drug statute" means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance; "Employee" mea~as the employee of a gramee directly engaged in the performance of work under a grant, including: (i) All "direct charge" employees; (ii) all "indirect charge" employees unless their impact or involvement is insignificam to the performance of the grant; and (iii) temporary personnel and consultants who are directly engaged in the performance of work under the gram a~ad who are on the grantee's payroll. This definition does not include workers not on the payroll of the grantee (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the grantee's payroll; or employees of subrecipients or subcontractors in covered workplaces). Page 43 Public Hearing November 29, 2001 Denia Recreation Center Attendees: Jane Burda Provo, Executive Director, Denton Affordable Housing Corporation Sheila Gianniny, DeNon Affordable Housing Corporation Committee Members Present: Peggy Fox Edward Touraine Staff Present: Alma Espino, Program Specialist Barbara Ross, CD Administrator Jane Provo from the DeNon Affordable Housing Corporation indicated that they felt more CDBG funds should be targeted to areas where affordable housing projects were ongoing. This would make a stronger impact. DAHC staff also stated that more funds should go to housing programs including renal housing, reconstruction and renovation. There should be less emphasis on public improvemeNs. Installation of sidewalks in the neighborhood north of McKinney Street, west of Mulkey was discussed. Ms. Ross indicated that purchase of right of way in the neighborhood might make a sidewalk project too costly for the CDBG program. Peggy Fox asked if DAHC landscaped their units after completion of construction. She noted that the unit on the corner of Wood and Hickory needed landscaping. Jane Provo stated that most new construction by DAHC is renal and they do landscape on those projects. She added that they iNended to landscape the Wood St unit. She also explained to committee members and staff that the unit is being used in conjunction with HOPE's Transitional Housing Program. Ms. Fox asked if DAHC attempts to get feedback from neighborhoods before they do new programs in the area. Ms. Provo indicated that they did this through their annual meetings. She also noted that DAHC's rental units and transitional housing units are spread throughout the community and are not conceNrated in one neighborhood. Ms. Gianniny stated that many persons are in need of renal assistance, particularly those with disabilities. The public hearing was adjourned. Page 44 Community Development Public Hearing December 3, 2001 Martin Luther King Jr. Center Community Developmem Advisory Committee Members Presem: Peggy Fox, Edward Touraine, Jorge Urbina Community Development Staff Present: Nancy Baker, Alma Espino, Dan Leal, Barbara Ross Barbara Ross, Community Developmem Administrator, opened the hearing and introduced staff. Ross also introduced the Community Developmem Advisory Committee members who were in attendance, Peggy Fox, Edward Touraine and Jorge Urbina. Ms Ms. Ross asked the citizens presem to complete a Community Networking Needs Assessment survey. She stated that these surveys would be used to assist the Community Network Project Leadership Team to make decisions about the services that will be offered through the grant they have recemly been awarded. Attendees divided imo three groups and discussed community needs. The following are commems from each group. GROUP A Facilitator - Dan Leal, Human Services Coordinator John Clay - Stated that side street going out to Dallas Drive where the old cement plant used to be needs repaving. We believe Mr. Clay was referring to Duncan Street. Mr. Clay was informed that Duncan Street was due to be repaved within the next two months. Carolyn Phillips, 722 Lakey Street - · Indicated that high interest loans were a problem for SE Denton residents. She suggested that a program be created to partner lenders with cliems who have poor credit. The program could assist persons with poor credit to improve their credit ratings and allow them to gain affordable housing. One on one assistance and training should be provided to persons with poor credit. The assistance and training would assist those individuals with poor credit to meet the requiremems of housing programs. An incemive program should be put in place to allow persons with poor credit to receive homeownership opportunities even if their credit rating was poor. If cliems comply with program requiremems, then they would be eligible for a home ownership programs. She noted that when people are turned down for assistance, word spreads around the community. · Commemed that there is a need for single family housing in SE DeNon. · More outreach is needed from the Texas Workforce Commission. Page 45 · Computer classes are needed for SE DeNon resideNs. She felt people would take advaNage of computer classes if outreach efforts were made and if the computer classes were readily available. · Ms. Phillips requested that SEDNA receive a summary of the commeNs from the public hearing. She requested a follow-up be done on how the commeNs or concerns were addressed. Peterina Washington, 618 E Prairie Street - · Stated that the loss of the Boys & Girls Club program in SE DeNon had caused a gap in services for youth in SE DeNon. She suggested the City purchase some property and build a Boys & Girls Club in SE DeNon. · Stated that more affordable housing opportunities are needed for persons in SE DeNon. · CommeNed that C.D.B.G. programs do not have a good reputation in the community because of all the paperwork that is required and because program applicaNs often receive conflicting information from staff. She said C.D.B.G. programs are not user friendly. She recommended easier accessibility to services and education on program requiremeNs and procedures. · She said Community DevelopmeN should help program participaNs improve their credit so that they can qualify for assistance. Edward Touraine, 2815 Glenwood Ln · Suggested more outreach and education is needed about Community DevelopmeN programs such as emergency repair, homebuyers' assistance program, etc. People need more education about program requirements. · Suggested that there might be an outside organization that can help households to improve their credit. Consumer Credit Counseling was meNioned as an agency that can provide such assistance. The group then had a general discussion about the best way to disseminate information in the community. Churches are more selective about what information to give out. Mr. Touraine suggested participation by Community Development staff at the Juneteenth Celebration and other community evens. (Community DevelopmeN staffhad a booth and provided information at the 2001 JuNeenth Celebration). GROUP B Facilitator - Nancy Baker, Housing Programs Manager Susan Grimes, 1116 ~AWilson Street: · Expressed a need for first time homebuyer assistance. Kendra Winters, Heritage Oaks, 2501 N Bell Ave: · Stated the need for funding to make capital improvements at Heritage Oaks to replace retaining walls and improve parking lot. Richard Black: · Stated that Wilson Street needs to be re-paved and expressed an interest in the Rental Page 46 Rehabilitation program. The names of four low-income persons in need of home improvement assistance were provided to staff. These individuals will be contacted and interviewed to determine type of assistance needed. GROUP C Facilitator - Alma Espino, Program Specialist Charlye Heggins, 422 Audra Ln: · Stated a concern about single family rental units on the comer of Bradshaw and Sycamore that should be demolished or renovated. She noted they could qualify for the subsidized housing program if they were in better condition. Staff mentioned the Rental Rehab program and the problem that the owner must take the initiative to renovate the units. · Fred Moore Park needs a swimming pool · A housing unit behind Mill Street and the Fred Moore School needs to be demolished. · Need social socials services - Elderly Homemaker Services - SPAN cancelled program due to lack of funds. · Commented that she is concerned about the future of Adult Day Care of North Texas and noted they may need more assistance than they are currently receiving. · Noted that a friend who lives on Smith Street was having a noise problem due to a new metal barn-like building that was built, it is keeping her awake at night with sounds. Ruby Cole, PO Box 1743: · Noted that the pool had been promised for years. · Stated that there is a vacant lot on Maddox where people are dumping lots on garbage on property. · Commented that there may still be some drainage problems on Robertson Street. · Asked when the American Legion expansion project would be started. · Need for health and medical care for older persons who work but have no insurance and can't afford it but they are not old enough to receive Medicare - they usually go without any medical care until the situation requires emergency room care. · Asked what disabled services were offered. Staff advised her of the Minor Repair and HiP/ORP programs that provide ADA improvements. Luther McDade, 921 Johnson Street: · Stated that he has a problem with 2 houses on Johnson St. and junk. · He asked that burnout on industrial be demolished. The lots have 25 or 30 cars, weeds Page 47 · Noted another housing unit on Industrial where the owner has built lots of small buildings plus a garage that is partially in the street. · Johnson Street needs everything - paving, etc. Betty Kimble, 809 Lakey Street: · Stated that assistance to persons with bad credit. Staff mentioned the assistance provided by Consumer Credit Counseling Services and advised her of the issues that arise when CCCS cannot help due to debts exceeding income. Peggy Fox, 203 S Wood St. · Asked whether the Community Development Division building any new affordable housing like on Robertson St. Staff explained that there may be a program designed to acquire vacant, abandoned properties for housing projects. · Stated that she supported landscaping with new homes. Page 48 Minutes Community Development Advisory Committee January 30, 2002 Members Present: Pat Colonna, Sondra Ferstl, Hank Dickenson, Barbara Stinnett, Edward Touraine, Members Absent: Harry Bell, Peggy Fox, Jorge Urbina (with notification) Staff Present: Luisa Rodriguez-Garcia - CD Coordinator, Barbara Ross - CD Administrator The meeting was called at 11:05 am. Barbara Ross informed the CDAC members that Mary Alice Moreno had resigned from the committee. Ms. Ross explained the application review process and asked members if they had any suggestions for changes to the process. Members agreed that they would prefer to use a ranking process similar to what had been used in previous years. Luisa Rodriguez-Garcia provided information on the amoum of Community Developmem Block Gram (CDBG) and Home investmem Partnership (HOME) program funding that was available for allocation to housing and public improvemems. Ed Touraine and Hank Dickenson asked how the percemages for administration and human services are calculated. Ms. Rodriguez-Garcia responded that CDBG administration totaled 20% of the grant allocation. Human services activities are capped at 15% of the allocation. The HOME program limits administration to 10% of the allocation. Staff pointed out that they currently use the maximum allowed for administration and that some salaries must come from program budgets. Ms. Ross stated that staff would be making a budget request to have some salary expenses paid from the general fund. She stated that Community Developmem was lucky to have long-term employees who are knowledgeable about the grams and programs. However, salaries rise along with tenure and the CDBG and HOME grams have not increased. CDBG funds and the administration cap have decreased this year. Ms. Ross stated that some general fund money would reduce salary costs that come out of the programs or that might cause the need for a reduction in staff. Residual HOME administration funds are being used to pay staff costs this year. Only a small amoum of prior year HOME administration funds that could be used to support salaries remains in the budget. Ed Touraine poimed out that if all administration funds were paid by through the general fund then the $231,000 in administration dollars could be spem on programs. Ms. Ross said they might work on that for the future but right now they were looking at only one salary. Ms. Ferstl asked staff to talk about the reallocated funds. Ms. Ross stated that these funds are those that are not accepted by other localities in the Metroplex that are eligible for the CDBG programs. in the past, Carrollton, irving and Richardson chose not to participate and the reallocation amount Page 49 given to DeNon was much higher. Now Carrollton and Irving participate and so these funds are leftovers from what Richardson tums down. Therefore, the amouN of reallocated funds received by the City of DeNon has dropped significaNly over the past two years. Ms. Ross also noted that the total CDBG formula allocation has gone down due to an increasing number of eNitlemeN communities that are sharing the pie and the set asides "pork barrel project dollars" that Congress includes in the programs. She indicated that the committee might wan to consider signing a letter to Congressional representatives requesting an increase in the CDBG and HOME allocations for 2003. Ms. Colonna stated that she would also be willing to sign a letter asking City Council to take staff salaries from City revenue. Ms. Colonna indicated that she felt Community DevelopmeN staff received many complimeNs regarding the wonderful one-to-one work that is done. She stated that she found it difficult to believe that individuals at the public hearing stated that they were not aware of some programs. She felt like staff did a good job of getting information out about the programs. Ms. Ross stated that staff would be working through the regular budget process and would be working on getting assistance through small incremeNs over a number of years. Ms. Stinnett asked if salaries paid from the general fund could be taken back. Ms. Ross said that could happen but that once you're in the system you're included in the annual budget projection. Ms. Ross asked if there were any suggestions for changes to the process. She noted that Ms. Rodriguez-Garcia could put together a ranking form. Members indicated that they would like to use a ranking form similar to last year's. Ms. Colonna and Ms. Stinnett stated that they felt the ranking forms showed how the members all appeared to be on the "same wave length" when it came to the type of projects that should be supported. Mr. Dickenson asked if they heard one or multiple speakers per meeting. Ms. Stinnett indicated that it would be several speakers and that there would be an opportunity for members to ask questions. Ms. Colonna commeNed that there was an individual last year and that there were none making a request this year. Members discussed the Inman Sewer project that was recommended last year based on the request from a citizen. Ms. Ross reminded the members that the Water/Wastewater Department prepared the application. Ms. Stinnett explained to Mr. Dickenson that some projects had to be completed in phases because there was not sufficient funding to complete them during a single year. Ms. Ross stated that she would provide some information to Mr. Dickenson regarding projects that had been funded in the last few years to give him some background on previous committee recommendations. Ms. Colonna commeNed that Ed Touraine drove around and looked at the sites last year. She added that she iNended to do that this year. Ms. Ross said staff would provide some information on reconstructs and rehabs that have been completed or were in progress. Members discussed the preseNations and how long each organization's should have. Mr. Touraine stated that 15 minutes should be plenty of time for the presentations. Ms. Ferstl stated that she felt they would only need three meetings rather than four. Ms. Rodriguez-Garcia talked with members about what times they would be available to meet. Members set up February 13, 20 and 27 for the meetings. Ms. Ross noted that the recommendations would be published in April and that Barbara Stinnett would be asked to go to City Council in April to discuss the committee's recommendations. Ms. Rodriguez-Garcia indicated that the Mulkey Street Repaving project might not be eligible. She Page 50 is working with Engineering to ensure that the project service area is correct. Ms. Rodriguez-Garcia stated that the service area marked on the original application would make the project ineligible. Mr. Touraine asked why some of the projects that were not recommended for funding last year were not brought back. He specifically mentioned the sidewalks on Lattimore, Mulkey and Mozingo. Ms. Ross stated that perhaps it is in the Capital Improvements Plan. Ms. Colonna agreed with Mr. Touraine's concerns about the need for these projects. Ms. Ross stated that the application went out to all City departments. Ms. Ross also indicated they she would be providing the committee with information on activities that staff attends to get the word out about Community Development programs. Ms. Colonna mentioned that she might be able to volunteer some time to provide CD information at local events. Ms. Stinnett stated that she was surprised that a citizen had commented that when people are turned down for assistance word spreads throughout the community. Ms. Ross explained that the home improvement program is a loan program. They require participants to go to Consumer Credit Counseling to review their financial situation. If it appears that they do not sufficient monthly income to repay a loan or if they are currently having difficulty paying their bills, they will not be assisted until they can pay off some bills or get their credit under control. Ms. Ross indicated that the CD loan should not be another "burden" on a family's finances. Staff asks these households to work on their credit for at least a six-month period before the program will assist them. Ms. Colonna mentioned the citizen's comment that a pool had been promised to the neighborhood. Perhaps it is possible to get a neighborhood pool through Parks and Recreation or a partnership with the school district. Ms. Ross said staff would be working to see if SEDNA might want to work with Consumer Credit Counseling Services to work more intensively with families. Ms. Colonna noted that Community Development had increased their homebuyer classes to one per month. Ms. Stinnett asked about the public hearing comment regarding computer education. She asked if MLK had any computers or classes. Ms. Ross said the Library has received a Community Networking grant from the State and that several locations would receive computers and training would be provided. She added that MLK would be one of the permanent sites for training. The meeting was adjourned. Page 51 Minutes Community Development Advisory Committee February 13, 2002 Members Present: Barbara Stinnett - Chair, Ed Touraine - Vice Chair, Harry Bell, Pat Colonna, Hank Dickenson, Sondra Ferstl, Peggy Fox, Jorge Urbina Staff Present: Luisa Rodriguez-Garcia - CD Coordinator, Barbara Ross - CD Administrator Barbara Stinnett called the meeting to order at 1:20 pm Luisa Rodriguez-Garcia provided members with a ranking sheet to use when evaluating the applications for funding. She also provided a review of the eligibility of the capital improvement project proposals received by staff. Ms. Rodriguez-Garcia stated that as a result of the evaluation measuring the percentage of low and moderate-income households in the service area, the Mulkey Street Repaving is not eligible for funding. The Paisley Street Repave and Fred Moore Park reforestation are eligible. Carolyn Berry, director of City County Day School introduced herself. She indicated that Bob Tickner might join her if he is available. Ms. Berry stated that the school wanted to put a fence around the playgrounds. She noted that the current fence is several different heights and does not adequately protect the children. Ms. Berry said that the vinyl-coated fencing she is planning on installing offers some additional safety factors that chain link does not. Ms. Berry did add that she would accept chain link if the City was not able to fund the coated fencing. She also stated that the fencing would improve the look of the neighborhood and it is more difficult to climb. Ms. Berry noted that juveniles and adults from the area sometimes climb the fence and use the facility over the weekend. They leave trash and other items in the playground area. Ms. Berry stated that she had obtained two estimates for the fencing. Barbara Stinnett asked if there was any other funding that could cover a portion of this. Ms. Berry said she would look for other sources or do the chain link. Ms. Stinnett asked if the $17,000 would complete the entire installation. Ms. Berry responded that it would. She also mentioned that the new fence would help with programming. They would be able to use the two playground areas at different times and with more than one class. Mr. Urbina asked if the fencing could be replaced in phases if there was a problem providing all the funding at once. He stated that perhaps there were specific problems in certain areas of the existing fence that could be replaced first. Ms. Berry said she really can't answer that but noted that Fred Moore Day Nursery School has it on just one side. Ms. Ferstl asked if she had gotten a bid for a plain chain link fence. Ms. Berry indicated that she had not. Mr. Touraine asked if this would be replacement of posts and everything. Ms. Berry indicated that it would. Mr. Touraine stated that an 8' fence on the side where the houses are would seem appropriate. Ms. Berry discussed some problems they've had with college students in the area and their activities. Mr. Touraine asked if the playground would be enlarged. Ms. Berry indicated that they were already out to the property's edge and could not enlarge the playground any further. Mr. Bell asked how much they were asking for the fence. Ms. Page 52 Berry stated it would be $17,000. Mr. Bell asked if there was any other funding for this project. Ms. Berry she said that they did not have any additional money currently but that they could try to write some additional grams. Mr. Urbina asked if it could be funded in phases. Ms. Berry indicated that they could do it in phases if necessary. Ms. Fox asked if the board is active in fund raising. Ms. Bell discussed the school's fund raising efforts including the board's annual giving campaign and selling cookie dough. Ms. Rodriguez-Garcia asked if this was extra money to use on projects such as the fence. Ms. Berry said yes, that is how they use the proceeds from their fundraising efforts. Ms. Ross brought up the repairs that are almost complete with last year's funding. Ms. Berry reviewed those improvemems. Ms. Ross stated that staff would see if there was any funding left from last year's grant to complete the playground fence improvements. Ms. Rodriguez-Garcia explained what usually happens if there is funding left after annual projects have been completed. Members cominued to discuss the possibility of using funding from the 2001 budget to complete the fence project. Kendra Wimers, Heritage Oaks manager introduced herself. The CDAC members introduced themselves. Ms. Stinnett asked Ms. Winters to review her request. Ms. Winters showed committee members some photographs of the retaining wall problems at the Heritage Oaks complex. She noted that Heritage Oaks is a federally subsidized housing complex for elderly persons 62 and over. Ms. Wimers discussed the decay of the facility at Heritage Oaks. She added that a lot of the residems had memioned these problems to her. Ms. Wimers discussed that the drainage problems on the property had contributed to the retaining wall deterioration. She stated that staff and residents worry that a strong rain will wash away the retaining walls. Ms. Winters stated that replacement of the retaining walls could be done in phases or all at once. Ms. Wimers stated that the second project for which they are requesting funds are the parking areas. The parking lots have cracked and some residems have fallen. Some sidewalk work was done that took care of problems with broken sidewalks but the parking lot is still a problem. Ms. Stinnett noted that Heritage Oaks is part of the Denton Housing Authority. She commented that with the construction of the new administration building she was unsure as to why some funding wasn't available to make these improvemems. Ms. Winters stated that all the funds used to operate Heritage Oaks are given to them by the US Department of Housing and Urban Development. Ms. Winters stated that they send their rents to the Austin Affordable Housing Corporation and then Chase Bank, their bondholder, sends money to Heritage Oaks. Chase Bank funds the operating budget. Ms. Winters stated that DHA funds are separated. She added that it was the Section 8 voucher program that paid for the new administration building. Ms. Wimers stated that DHA had the money. They had been saving it. She commemed that whatever they do at Heritage Oaks has to come out of their Heritage Oaks budget and that is based upon their HUD requirements. Ms. Stinnett asked what the organization does when they have significant maintenance needs like this. Ms. Winters stated that with their bonds they had set up an extraordinary maintenance fund for repairs and things like that. She stated that it has to be maintained at a certain level and her understanding from the recent statements that she's seen from that account is that they are not able to access funds at this time because they used it for drainage projects a year or two ago and it no longer has sufficiem funds. Ms. Ross asked if they used those funds for a drainage project at Heritage Oaks. Ms. Wimers indicated that this was correct. Mr. Touraine asked if they would overlay the parking lot or tear it out and repave it. Ms. Winters stated that the funding that she was requesting would overlay it. It would include a new base. Mr. Urbina asked if they could come back with some information regarding what their critical areas would cost. Page 53 He continued if she could give them information on how much the critical areas would cost for both the parking lot and the retaining wall that would help the committee. Ms. Colonna asked if they would continue to have drainage problems even after the work is completed. Ms. Winters explained that they would replace them with railroad ties and the contractor that they had talked to said the wooden railroad ties would hold up better than concrete in an area with drainage problems. Mr. Dickenson asked if the new retaining walls would basically be new railroad ties. Mr. Winters indicated this is what it would be. Ms. Stinnett said this would be something that would need to be replaced every 20 years. She also asked if any other engineers come out to see if there was something permanent that could be done. Ms. Winters indicated that the former CEO of DHA had some studies done and that it would be very expensive to do anything permanent. Ms. Colonna commented that the housing was really attractive to seniors. They are modest but the folks living there really enjoy it. Ms. Stinnett said that she was just looking for a solution that would last. Ms. Fox asked if HUD cited them for these problems. Ms. Winters stated that they did not get cited but that they gave them a timeline to complete the work. Ms. Winters said she contacted him to see what they could access from their extraordinary maintenance fund but noted that there is nothing to access there. Ms. Ross asked again if there were no funds that could be accessed from their maintenance accounts. She pointed out that it is sometimes better when the City doesn't fund the entire project and they see some participation from the organization requesting funds. Ms. Fox asked what would happen if this work is not done. Ms. Winters stated that they could do it out of their budget but it would take a lot longer, probably a couple of years if they did it out of their contract maintenance budget. This budget is for all maintenance. Mr. Urbina reiterated that it would be good if Heritage Oaks could allocate some funding from their budget. Ms. Ross asked about the budget. She said she noted that it was just a budget for Heritage Oaks not DHA. Ms. Ross pointed out that the budget did not appear to include all salaries or costs. Ms. Winters explained that a portion of the maintenance manager's and the CEO's salary comes from their budget. Ms. Ross asked for clarification that this meant that part of DHA's director's salary and the maintenance manager for DHA receive partial payment from the rental income of Heritage Oaks. Ms. Winters stated that this was correct. Ms. Ross asked Ms. Winters to clarify whether or not the new administration building had already been paid for. Ms. Winters stated that it had been financed and would be paid for with revenues from the Section 8 program and revenues from the new developments. Ms. Winters stated that the Denton Housing Development Corporation is over Heritage Oaks and that they have an agreement with the Denton Housing Authority to be the administrator of Heritage Oaks. Ms. Colonna asked if the residents could now use the community room facility in the evenings. Ms. Winters stated that it is open only on Thursday evenings. It is not open for them to use to play cards or watch TV during the rest of the week. Ms. Colonna asked if there was a reason why it is not open in the evenings. Ms. Winters responded that they have no personnel to monitor the use of the facility at night. It is open during the day from 8:00 am to 5:00 pm. She stated that she stays on Thursday nights and plays games with the residents. The members thanked Ms. Winters for her presentation. Ms. Fox asked if DHA still had an interim director and whether they were going outside to advertise for a new one. Ms. Ross stated it is her understanding that they are going to advertise nationally though they may still choose a local person. Ms. Rodriguez-Garcia stated that she had understood that Heritage Oaks was a DHA facility. Ms. Ross stated that in reality it is, that they created a non-profit to handle the bond issuance. She added that she thought the DHA board was also over the nonprofit. Ms. Colonna commented that the elderly residents should be able to use the community room at any time. Ms. Stinnett asked if CDBG had Page 54 funded a drainage project a few years ago. Ms. Ross responded that it was a roof project. Ms. Rodriguez-Garcia stated that in 1989 Heritage Oaks received $88,000 for a roof project. Members discussed DHA's financial structure and noted that it was difficult to understand. Dan Leal, Human Services Coordinator, provided the presemation for the Tenam-Based Remal Assistance Program. Mr. Leal explained that the TBRA program was previously administered by Fairhaven. They received about $87,000 to administer and implemem the program for two years. The Community Developmem Division is requesting to do the administration of the program. Mr. Leal stated that this is not because Fairhaven has done a poor job. They have done an excellemjob. Mr. Leal noted that the switch would save administration funding. The emire amoum being requested will be used for rem subsidies. Mr. Leal explained how the program would work and that it would serve both people who are elderly and persons with disabilities. Mr. Leal noted that the CD staff is also familiar with agencies that can provide services to these households. Mr. Leal reviewed the eligibility criteria for the program including that the participams be homeless, in danger ofhomelessness or paying a high percemage of their income for housing. He noted that the City does not feel that it would be duplicating services. Mr. Leal stated that City staff felt that we have some good experience with the program. Ms. Ross added that one of the things that CD staff has noticed is that Fairhaven residems cominue to be the primary recipiems of the assistance. She stated that initially, the assistance was given just to Fairhaven. Then it was determined that this did not meet the HOME program guidelines which states tenams must be allowed to choose their unit. Ms. Ross stated that Fairhaven was asked to market the program citywide and that they have tried to do this. It would probably be better for the City to manage the program and ensure that it was marketed and that Fairhaven residems are eligible but are not the primary persons receiving assistance. Mr. Leal stated that those curremly on assistance at Fairhaven would not be taken off. He noted that City staff could market to a more diverse group of people. Ms. Ferstl asked if cliems are eligible to be assisted after the two-year period. Mr. Leal explained that staff looks at the income level each year. Income requiremems are 50% of AMI and below and that households could continue to receive assistance it if they continue to qualify. Mr. Urbina stated that some agencies could possibly do a better job of leveraging the funding. He asked if there are there other nonprofits that are already working with housing that could add to this. Mr. Leal stated that this was possible. He noted that the City could show that TBRA is being provided this could help to bring in additional Cominuum of Care funds. Mr. Leal stated that recemly $732,000 in Cominuum of Care funding came to AIDS Services to serve those impacted by AIDS who are homeless. Mr. Urbina said some agencies have specifically looked at filling that niche and is there a way that we could look at this program and coordinate how it is being allocated to these agencies. Ms. Ross explained that some TBRA assistance is provided to the Demon Affordable Housing Corporation because some of the persons with disabilities are living in their units and that these rems are less expensive than market rate rems. She added that under the HOME program and TBRA the resident selects their own unit. Mr. Leal stated that the tenant has portability, they can move to a new unit. Ms. Stinnett asked if social security income and any retiremem is included income. Mr. Leal said yes. Ms. Rodriguez-Garcia they can be either elderly or disabled, they don't have to be both. Mr. Leal explained that there have been some elderly who were are disabled that were housed at Fairhaven. Mr. Dickenson stated that all recipients are required to put in 30% of their income. Mr. Leal stated that this was correct and that there is a minimum of $25. Jorge Urbina asked if the agencies could break down their proposed projects imo phases in next Page 55 year's application. Ms. Ross stated that this could be included as a part of the application. Members discussed when to mm in the ranking forms. Ms. Ross suggested that they might want to email their results in to Ms. Rodriguez-Garcia. Emerson Vorel from the City's Parks and Recreation provided information on the Parks Department proposal for the reforestation for Fred Moore Park. He noted that the funding would provide the trees and an automated irrigation system for the new trees. Mr. Vorel stated that some of the trees at the park have reached their full maturity and started to decay. Some have become dangerous and need to come down. Ms. Stinnett asked if the total amount was for the trees. Mr. Vorel stated that Parks would plant 15, 3-inch caliper trees and irrigate them. Ms. Colonna asked what was the cost of the irrigation system alone. Mr. Vorel responded $2,900. Mr. Urbina asked if there were any way to expand the irrigation system to prolong the life of other trees in the park. Mr. Vorel indicated that Fred Moore is a Class B park and this means it is not irrigated. He stated that if it were permanently irrigated that citizens near other neighborhood parks would also want irrigation. The City could not afford the cost of the water to irrigate these parks. Ms. Stinnett asked how long they would continue the irrigation of the trees. Mr. Vorel indicated that it would be about three years. Ms. Colonna asked that since the neighborhood had expressed a concern was it possible that the neighborhood gardening club might be able to help. She added that she thought the gardening club might be fairly active. Ms. Stinnett mentioned the master gardeners association. Ms. Ross indicated that she would attempt to contact these organizations and ask about the availability of trees. Mr. Touraine asked what type of trees would be planted. Mr. Vorel stated that some burr oak, red oak, pecan etc - native trees. Ms. Ferstl asked if you don't have funds in the Parks budget to do this. Mr. Vorel stated that Parks has some funding. Ms. Ferstl stated that she was surprised that they were asking for CDBG funds rather than taking this from the Parks budget. Mr. Vorel stated that they were always looking for supplemental funding. Ms. Rodriguez-Garcia asked what Parks would do if no CDBG funding is available. Mr. Vorel stated that Parks would plant some trees but not as many and they won't have irrigation for the trees. Ms. Stinnett stated that they'd be throwing money away if the trees weren't irrigated. Mr. Vorel stated that the costs are greatly reduced because some of the irrigation equipment is already there and staff could provide the labor. Mr. Touraine commented that if you put 15 trees in the park, there wouldn't be a lot of open space left. Mr. Vorel stated that Parks is going by what they've heard from the community. He added that he didn't believe 15 trees would be too much at Fred Moore Park. Mr. Urbina said some tree loss would continue. Ms. Ross stated that there are several projects that were not included as "previously funded by CDBG" in the PARD application. She noted that the committee has funded a lot of Parks projects in the area. Members discussed doing Parks projects in other neighborhoods. David Salmon, assistant director of Engineering, presented the Paisley Street Repaving request. Mr. Salmon stated that they originally submitted two projects and then it was determined that Mulkey St. did not meet the income eligibility criteria. He noted that the Paisley project covered the distance between Mulkey and Ruddell. It serves the neighborhood along Paisley and the area south of the service center. He stated that the paving was very poor and that it is not currently on any paving list. The street department said that for a little over $101,000 they could mill off the existing pavement and repave. Mr. Salmon stated that $3,000 would be used to pay design costs. There will also be some spot repairs to curbs and gutters. Mr. Touraine noted that there are some areas that don't have curb and gutter. He asked Mr. Salmon if they were going to replace those. Mr. Salmon Page 56 indicated that spots would be repaired but no new curb and gutter would be installed. Mr. Touraine asked since Paisley is a major thoroughfare from the Service Center with large trucks moving through there, would the 6" paving going to hold up. Mr. Salmon stated that the current pavement is probably less than six inches because of the age of the street. Six inches is the current standard for a collector street and that is how Paisley is categorized. Ms. Stinnett asked why is Paisley not included in the City's maintenance budget. Mr. Salmon stated that the worst streets on the list come first. He added that what is happening is that someone at a public meeting mentioned Wilson Street. This street needs a less expensive facelift and the street department can repair that with a micro seal. Mr. Salmon noted that on Paisley the pavement is so deteriorated that it must be repaved. Ms. Stinnett stated then this is too expensive to include in the City's budget. She noted that it appears this entire length of street needs to be done at the same time. Mr. Salmon stated that sometimes they present projects that can be split up but it wouldn't work well to split Paisley up. Ms. Stinnett asked if Engineering could come up with the money from their budget. Mr. Salmon said he couldn't speak for the street department but it would probably be very difficult. He noted that they might be able to come up with a small amount to assist in the project. Mr. Urbina asked if the City currently looking at including something like this in the CIP in the next couple of years. Mr. Salmon stated that in the past bond elections they always attempt to get $100,000 to $250,000 in repaving funds. This is spent on the street on the repaving list. Mr. Salmon explained the two repaving lists that the City maintains and the type of work that is done under each. Ms. Stinnett asked about the missing curb and gutter. Mr. Salmon noted that he did not believe the budget amount included that. He would check and could include an amount if it is not included. Mr. Salmon stated that perhaps the street department might be able to do the curb and gutter. Mr. Urbina noted that the individuals who own and want to develop those properties might take on those expenses. Members discussed other improvements that may be needed in the Paisley/Crawford/Ruddell area. Ms. Stinnett asked if there were any corrections to the January 30 minutes. Ms. Ferstl stated that at the beginning of that meeting Ms. Ross told them about the resignation of Mary Alice Moreno and that this was not included in the minutes. Ms. Ross said that would be added. Ed Touraine moved approval of the minutes. Hank Dickenson seconded the motion. The minutes of January 30, 2002 were approved with one correction. Ms. Stinnett asked for corrections to the November 14, 2001 minutes. No corrections were requested. Peggy Fox moved approval. Pat Colonna seconded the motion. The November 14th minutes were approved as written. The meeting adjourned at 2:55 pm. Page 57 Minutes Community Development Advisory Committee February 20, 2002 Members Presem: Members Absem: Staff Present: Barbara Stinnett - Chair, Sondra Ferstl, Ed Touraine, Jorge Urbina, Hank Dickenson, Peggy Fox, Pat Colonna Harry Bell Luisa Rodriguez-Garcia, Barbara Ross Jane Provo, executive director of the DeNon Affordable Housing Corporation, provided a summary of the mission of the organization. She noted that the agency is requesting $150,000 for their first time homebuyer program. This program is called the Affordable Housing Opportunity Program (AHOP). Ms. Provo stated that they plan to substamially increase the number of units available to first time homebuyers. She added that staff has already acquired more homes in the first four months of this fiscal year than in all of last year. Ms. Provo stated she was unsure as to why there are more homes available in an affordable range this year than in previous years. She noted that they are about to acquire their 14th home and they plan to do 30 units this year. Ms. Provo described the program - acquisition, rehabilitation and sale to low and/or moderate-income persons. She noted that though the program is carried out in other communities in DeNon County, City of DeNon dollars are only spent in Denton. Ms. Provo stated that AHOP's primary focus is the structural and primary systems in the homes but she added that they also do cosmetic work on the units. Ms. Provo stated that DAHC does not sell "fixer-uppers." She stated that they also have some Federal Home Loan Bank funds that defray costs to the new homebuyer. Ms. Provo stated that DAHC attempt to focus on households that are at 50% of the area median income and below. She added that this income group constitutes 40% of their buyers. The average sales price is $74,000 to $75,000. The average renovation cost is $15,000. Ms. Provo noted that they are about to acquire their 40th home in DeNon. They have acquired 94 in DeNon County. Of the request for $150,000, $80,000 is for acquisition, $50,000 is for renovation and $20,000 is for down paymem and closing costs and some gap financing. Peggy Fox stated that in the past they have given a list of the most recemly acquired homes and could they provide an updated list to the committee. Ms. Provo stated she would be happy to provide that information. She noted that their goal is to continue to focus on infill. Ms. Stinnett asked how long DAHC's waiting list was. Ms. Provo stated that they have a continual flow. There is no waiting list but they keep a list of interested persons and send information out to them. Ms. Stinnett asked how long it takes for someone to get a home. Ms. Provo explained that it can go pretty fast if they have already visited a lender and have found or can quickly find a home to meet their needs. Ms. Stinnett asked if DAHC did any educational training with the prospective homebuyers. Ms. Provo stated that there probably is a need. They send out the City's schedule for homebuyer training and they encourage people to go through that. It is not currently a requirement but they certainly feel that it is importam. Jorge Urbina explained to the committee that there is a housing coalition that is active and that they have begun some collaborative projects. He noted that Page 5 8 DAHC and other agencies are curreMly working on a project to help victims of domestic violence. Ms. Provo stated that over the last few years there has been a healthy collaboration on the part of local housing agencies. Ms. Stinnett asked aboM the rate of default on these projects. Ms. Provo stated that they have never had one in the City limits bM have had a couple oMside the City limits. Ed Touraine stated that on the map enclosed with DAHC's application there are only two houses that are west of Locust. He asked the reason for this. Ms. Provo stated the only reason for that would be the availability. She noted that most of the homes they purchase are HUD foreclosures. She added that they are able to purchase these homes at a discouM. It is based on where DAHC can find homes for sale that can be renovated and made affordable. Mr. Dickenson asked what perceMage of the families take advaMage of the sweat equity part of the program. Ms. Provo indicated that it was not many and part of the reason is because DAHC still owns the unit until the family gets a mortgage loan and therefore they may do labor that cannot be reimbursed. She added that if the improvemeM requires skilled labor such as plumbing or mechanical, they homebuyer usually cannot complete it. Ms. Provo stated that DAHC's insurance company was also concerned aboM these individuals being oM on the work site. Ms. Provo expressed her appreciation to the committee for previous funding DAHC has received. She noted that funds are recycled iMo the program. Mr. Touraine asked aboM salaries. Ms. Ross poiMed oM that the $99,000 was only for salaries related to AHOP. The other salary amouMs were paid from other sources. Alma Espino, community developmeM program specialist, preseMed information on the Home Improvement Loan program and Optional Reconstruction program. Ms. Espino passed out photographs of a project completed under the program. She described the problems associated with the original house and why it was demolished. A new unit was built. Ms. Stinnett asked where the family moved. Ms. Espino stated they were able to find an apartment that was willing to rent to them for only a few months. The program requires that the families relocate themselves. Ms. Espino indicated loans are provided based on a sliding scale. Some of the loan is payable and a portion is forgivable. The more your earnings, the more you will pay back to the program. Mr. Touraine asked what happens if an individual's salary increases after you get the loan. What happens to the loan? Ms. Espino indicated that the loan remains the same. She gave an example of a woman who paid back her loan early after she received some additional funding. Ms. Ross added that in a way you would be "punishing" families for working to increase their earnings. The program supports families improving their lifestyles. Ms. Colonna poiMed oM that the families must remain in the unit for a certain period of time. Mr. Urbina asked if the residency period was based on the loan amount. Ms. Espino explained the loan terms - 20 years for reconstruction, 5, 10 or 15 for a rehabilitation. She explained how the loan program works. Mr. Urbina asked if there are any third party funds involved in each project. Ms. Espino meMioned that the City has received Federal Home Loan Bank funds to help defray the loan amount for very low-income households. Ms. Ross meMioned that the City also requested and received funding from the DeMon County Housing Finance Corporation funding to support the program. Ms. Espino also meMioned the lead hazard control grant. Ms. Ferstl asked her to explain the target area map. Ms. Rodriguez-Garcia noted that the mapping software would not print all of the street names. Ms. Espino explained that the older Denton neighborhoods are in the target area. Ms. Ross discussed the targeting of neighborhoods. Mr. Urbina asked what monitoring means. Ms. Espino stated that she monitors to ensure that the program participaMs are paying taxes and insurance. Ms. Stinnett asked if there is ever a default. Ms. Espino stated that they do have defaults but that they work with families to obtain payments. Page 59 Ms. Espino explained how they work with problem payers. Ms. Rodriguez-Garcia stated that she would do a map by hand to provide to the committee members. Ms. Ross explained the concept of targeting existing neighborhoods rather than working on units that were in commercial areas or isolated areas. Gordon Meredith, resideNial housing specialist, described the Minor Repair program. He indicated that the name has changed. Mr. Meredith explained that the program was previously the "Emergency Repair" program. Mr. Meredith stated that since Title X (lead rules) there is a strict rule regarding what is emergency repair and they waned to avoid that we were trying to subvert the Title X regulations. He stated that they are asking $81,000 for the program this year. An additional $9,000 comes from the ALERT program. Mr. Meredith explained that the increased funding was needed because more people are using the program and the level of repair has gone from $3,000 to $5,000 per unit. He explained that the ALERT program will provide $300,000 to the City of DeNon and this can be used for lead-reduction work. Mr. Meredith provided information regarding how the program's funding has been speN. He noted that 2/3rds of the funding was speN in CT 212 and 206.02 (an area directly north of SE DeNon). This is older housing stock that need emergency repairs. Mr. Urbina asked if there was recovery of money back iNo the fund. Mr. Meredith stated that this is an outright grant. Mr. Touraine asked if there is a list of contractors that they can use. Mr. Meredith stated that staff has a list of coNractors in various areas that are used for these jobs. Mr. Dickenson asked if the homeowner makes the coNact with the contractor. Mr. Meredith said that on some occasions that happens bN usually staff would set up the bidding process for the homeowner. Mr. Urbina stated that the minority community is wondering why we don't have any minority contractors. Mr. Meredith stated that there has been some success in finding minority contractors in carpentry areas but there are not many in the licensed trades. Much of the minor repair work falls iNo the licensed category. He commeNed that the oNreach for the program has worked very well and that many households are tapping iNo this resource. Ms. Colonna stated that last year the committee was warned that the funding might be used up and it evideNly has been. Mr. Urbina asked if they track anything besides the census tracts. Mr. Meredith said they track ethnicity but not age. Ms. Ross preseNed information about the new Infill Housing Construction Program. She noted that the program was carried out a few years ago. That program targeted city-owned properties. Ms. Ross stated that staffwas able to acquire two properties owned by the City on Windsor. Two units were built on these lots and sold to low and moderate-income homebuyers. She stated that after those two lots, the City purchased two lots in Southeast DeNon and built two brick units. Ms. Ross commeNed that staff has received complimeNs from neighborhood resideNs regarding these two units. She stated that the program attempted to do infill housing and to serve very low-income households. She added that the City provided some very deep subsidies on these units to make them affordable. One unit was sold to a single mother with two children. It was sold for under $70,000. Ms. Ross stated that staff is working with SE Denton neighborhood on their plan. They have discussed the issue of infill housing and the resideNs would like to see some housing developmeN in their neighborhood. Ms. Ross said she and Dedra Ragland, small area planner, have discussed setting up a standard for the construction of the units under the City's program. The resideNs would be asked what type of units they want developed in the neighborhood. If the neighborhood wans 50% or 75% brick, three-bedroom, two-baths etc., this is what the program would do. Ms. Page 60 Ross commeNed that this would require a deep subsidy and that the program could not be self- supporting. Staff would coNinue to look for funding from other sources. One possible source would be the Section 108 loan guarantee program. Ms. Ross commented that the only reason they stopped doing the program was because Ted Benavides, city manager at the time the program was active, did not wan the City doing housing developmeN. Ms. Ferstl asked what was the definition of infill housing. Ms. Rodriguez-Garcia explained that this would not be developmeN of a previously unused large tract of land but building housing in existing neighborhoods where there were vacant lots. Ms. Ross noted that lots could be acquired through foreclosure or simple purchase. She commeNed that a program has been developed to acquire vacaN, abandoned properties and either give them to nonprofits or allow the City to use them in a new construction program. She noted that Mary Horn, tax assessor-collector at the time, did not support the program. Staff felt that they needed neighborhood support before approaching the County Commissioners. This program could be incorporated iNo the Infill New Construction Program. Mr. Dickenson asked whether this would mean tearing down a house on a lot. Ms. Ross responded that if the house was vacaN, it could be tom down. Ms. Ross commeNed that with both DAHC and the City doing new construction perhaps they could get more volume out there. Mr. Urbina asked besides DAHC, Habitat and the City who else was doing new construction. Mr. Touraine meNioned the DeNon Housing Authority. Mr. Urbina indicated that this would not be single-family. Mr. Urbina stated that the Housing Coalition was attempting to pull in some of the land that was previously purchased by the DeNon Housing Authority. Ms. Fox asked for clarification regarding the land owned by DHA. Mr. Urbina stated that the land was not approved for rezoning. It is zoned for single family. He indicated that it might be difficult to build an affordable home. Ms. Ferstl asked staff if they felt it would cost $100,000 to build a new home. Ms. Ross indicated that construction costs would be around $80,000 or so for construction and $15,000 for acquisition. She meNioned that they built the two on Robertson for $78,000 and $70,000 or so. Ms. Rodriguez- Garcia noted that staff is coNinuously getting calls asking why the City is not building any more units like those on Robertson. Members continued to discuss the new construction program. Ms. Luisa Rodriguez-Garcia, community developmeN coordinator, described the City's Homebuyer Assistance Program. She noted that the program provides assistance to households that are able to get a mortgage loan. The family may have difficulty saving for down paymeN and closing costs and the program will assist them with that. The maximum sales price is $87,500 that is a slight increase over last year's limit. Local realtors and lenders have asked that it be increased significaNly but staff did not feel comfortable increasing the limit by too much. As of this date assistance has been provided to 338 households. The average sales price is approximately $75,000. She stated that more gap funds are being provided because there are so few affordable units available. Ms. Rodriguez stated that CD is asking for $491,150. The increase is mainly because of rising staff costs. She stated that for every dollar that the City puts in the ratio of mortgage funding to City dollars would be 8 to 1. With the funds requested, the City will leverage approximately $4 million. Households put in $1,000 to $2,000 of their own funds for down paymeN and closing costs. Ms. Rodriguez stated that the program usually runs out of money in May or June. Then families must wait until the new funding is available. Ms. Ferstl asked if a certain percentage must come from CDBG. Ms. Rodriguez-Garcia indicated that this was correct - administrative costs usually come from CDBG. Ms. Ferstl asked if the administration costs would go down if the program did not receive all the funding requested. Ms. Rodriguez-Garcia stated that there might be a slight decrease Page 61 in administration but not much. Ms. Ross poimed out that the staff costs associated with the program do not pay for all the staff time spem on the program. It represems only a portion of staff time. She also stated that if they receive any money for salaries from the general fund, there would probably be some reductions in salary costs coming from the programs. Mr. Touraine asked why there were so few blacks participating in the program. Ms. Rodriguez-Garcia stated that at one time a committee member indicated that many African-Americans in the community have been here long- term and the homes they own are usually passed down to younger members of the family. Many of the new low-income families in the community are Hispanic. Staff cominues to market the program to the minority community. Ms. Rodriguez-Garcia indicated that staff was working with the SE DeNon neighborhood to look at providing some more imensive credit counseling. Mr. Urbina commended staff and the Homebuyer Assistance Program. He stated that the community was well aware of the program and that the outreach done by the staff was excellem. Members discussed completing their ranking sheets. Ms. Rodriguez-Garcia asked that the ranking sheets be returned to her by Friday the 22nd. The meeting was adjourned at 2:35 pm. Page 62 Minutes Community Development Advisory Committee February 27, 2002 Members Present: Staff Present: Barbara Stinnett - Chair, Ed Touraine - Vice Chair, Harry Bell, Pat Colonna, Hank Dickenson, Sondra Ferstl, Peggy Fox, Jorge Urbina Luisa Rodriguez-Garcia - CD Coordinator, Barbara Ross - CD Administrator Barbara Stinnett called the meeting to order at 1:20 pm Members discussed their project/program rankings. They agreed that the Fred Moore Reforestation project would not be recommended for funding. Pat Colonna commeNed that she felt there could be a way to get water to any trees that were planted. She suggested some group might volunteer to keep them watered. Ms. Fox noted that it could provide some incentive for someone to get involved. Mr. Urbina stated that his consideration of this project included that CDBG has been very generous to Parks and Recreation and the Fred Moore Park facility. Mr. Touraine stated that he felt that the park's free space was pretty well taken up and that 15 trees would take all the open space. Ms. Ferstl noted that Paisley Street was not ranked as a "5" (highest priority) by any CDAC member. Ms. Colonna stated that she felt the City should pave streets. Ms. Stinnett asked if Kendra WiNers of Heritage Oaks commeNed that the retaining wall/parking lot project could be split up. Ms. Ferstl commeNed that it was split up $45,000 and $60,000. Mr. Urbina stated that he had asked for additional numbers. Ms. Ross commeNed that Ms. WiNers called and stated that she had no other breakdown to give the committee. She noted that Ms. WiNers added that Heritage Oaks would take anything the City would give them and use it on their priorities. Ms. Stinnett stated that if they were given $50,000 it would have to be spent on the work requested. Ms. Ross stated that the contract with the Denton Housing Authority would state specifically what the funds are to be speN on. Mr. Urbina asked how far the funding stretched if they wen down the ranking sheet with the housing programs that have been ranked first. Ms. Ferstl indicated that if you include the DeNon Affordable Housing Corporation's eNire request, you run out of funding with Heritage Oaks. Some is available for a portion of the Heritage Oaks project. Ms. Rodriguez-Garcia set up the funding chart showing full funding for the priority housing programs. Ms. Ross indicated that this is the system that the committee has used in the past - drop offthose they don't want to fund and then start from the top priorities and work their way down. Mr. Urbina asked how much funding was left from the City County Day Nursery School project. Ms. Ross indicated that it was $2,700. She noted that normally on projects that have small amounts of money left over the funding is used to support another project they may need more than was Page 63 originally included in the budget. Also, residual funds often go imo the homebuyer assistance, home improvemem and minor repair programs. Ms. Rodriguez-Garcia reviewed the funding recommendations thus far. If the following programs are funded at the full amoum requested - homebuyer assistance, minor housing repair, home improvement, tenant-based rental assistance for special needs, Denton City County Day School fence, and the DeNon Affordable Housing Corporation (DAHC) - then $59,968 is left. Ms. Stinnett suggested funding DAHC at $86,250. This is the community housing developmem organization (CHDO) set-aside amoum under the HOME program. Mr. Dickenson asked if this is what has been done in the past. Members stated that they had recommended only the minimum in past years. Ms. Ross commented that in '95 and '96 some administration costs were funded since DAHC was a new agency. This was to help them build capacity. Ms. Stinnett reminded the committee that Paisley Street could not be split into more than one project. Mr. Urbina stated that he did not understand why Heritage Oaks could not ask their developer for funds for additional repairs and include this as part of their overall obligation. Ms. Ross stated that her understanding was that the Denton Housing Authority created a non-profit organization that was used to float the bonds to finance the building of Heritage Oaks. Ms. Ross stated that she thought the bonds were paid off and that is part of what she did not understand regarding Ms. Wimers's presemation. Ms. Ross stated that perhaps an additional bond issuance provided funds for repairs. She asked Ms. Rodriguez-Garcia to comment on the DHA board meeting that she attended the previous Friday. Ms. Rodriguez-Garcia stated that they mentioned that whenever something couldn't be funded for Heritage Oaks, they would put it through Section 8. Ms. Ross stated that staff noted that this was a little bit different from the way it was described to the committee. Ms. Ross noted however that Heritage Oaks is probably supposed to be a stand-alone complex with rents and Section 8 assistance paymems paying for maimenance and repairs but since it is low-income housing, it may not be sufficient. Ms. Ferstl suggested that the committee recommend funding Heritage Oaks at $50,000 and put the balance of funding in DAHC. Mr. Dickenson noted that this would be above what DAHC had requested. Ms. Ferstl stated that she did not think Heritage Oaks should be fully funded since it ranks below DAHC. Mr. Urbina memioned the previous funds spem on roof repair. Members commemed that this was quite some time ago. Mr. Urbina suggested that they add the $9,000 remaining to Heritage Oaks. Ms. Fox suggested that the committee recommend giving Heritage Oaks enough funding to do either the parking lot repair or the retaining wall work. Mr. Urbina asked if Ms. Wimers stated what the priority was. Members agreed the retaining wall work seemed to be the priority. Members agreed to take $32.00 from the Homebuyers Assistance Program. This would allow Heritage Oaks to receive $60,000 for the retaining wall repair. Ms. Rodriguez-Garcia reviewed the recommendations as follows: Page 64 · Homebuyers Assistance $491,118 · Minor Repair $81,000 · Home Improvement Loan $420,885 · Tenant-Based Rental $82,368 · Denton City County Fence $17,000 · Denton Affordable Housing $150,000 · Heritage Oaks $60,000 Mr. Dickenson noted that a major difference this year was that DAHC was receiving their total request rather than the required amount. Mr. Urbina also noted that they were not funding the new Infill Housing Construction program. Ms. Ross stated that this would give staff time to work on the program and how it fits imo various neighborhood plans including SE Demon's. Ms. Colonna noted that DAHC and Habitat for Humanity do new housing construction. Mr. Urbina noted that the infill program duplicates somewhat but it would be nice to see what the City could do. Ms. Ross stated that she felt duplication was not a problem when there was so much need in the community. She added that DAHC has some City funds for new construction that were not expended for more than a year and staff was concerned. Ms. Ross stated that they are being used for new construction. Ms. Stinnett asked why the funds were not used. Ms. Ross noted that DAHC was very busy with several remal projects that were much needed. She commemed that DAHC was doing a wonderful job on these projects but were not able to work on any new construction. Ms. Colonna stated that last year, DAHC had some bad press and they seem to have come back from that. Ms. Ross noted that the City had asked DAHC to take on the program but had also discussed taking the program back. Ms. Ross noted that the City provides approximately $20,000 impact fee grams to non-profits for new housing developmem. Ms. Ross commemed on the possible use of Section 108 loan guarantee funds for new housing construction. Ms. Rodriguez-Garcia provided the members with a prim out of their draft recommendations. Mr. Urbina stated that he has asked Habitat to consider requesting CDBG funds for their program. He commemed that the families assisted by Habitat are very low income. Ms. Ross stated that she thought Jill Grozev, Executive Director of Habitat, was completing an application but it was never submitted. Members continued to discuss Habitat. Mr. Urbina commended the Community Developmem staff on the City-managed programs. Ms. Ross stated that Dan Leal was just working with the auditor from the Texas Department of Housing and Community Affairs regarding the Emergency Shelter Gram program. Mr. Urbina moved that the draft recommendations for use of CDBG and HOME funds to be presemed to City Council. Ms. Colonna seconded the motion. CDAC members unanimously approved the recommendations. Ms. Ross stated that she would comact the members to inform them of the dates for City Council review and approval. The meeting was adjourned. Page 65 Members Presem: Members Absem: Staff Present: Human Services Advisory Committee Official Minutes October 23, 2001 Community Development Conference Room Carol Bounds, Carol Brantley, Wallace Duvall, Peggy Kelly, Elinor Hughes, James McDade, Teri Rheault, Betty Tomboulian Carl Williams Dr. Bettye Myers, Caleb O'Rear Dan Leal and Barbara Ross The Human Services Advisory Committee meeting was called to order at 6:35 pm. The Human Services Advisory Committee (HSAC) and staff introduced themselves. Carl Williams took the oath of office. Peggy Kelly moved the minutes of September 17 be approved as written. Teri Rheault seconded the motion. The minutes were approved unanimously. Dan Leal asked members for nominations for HSAC chair. Elinor Hughes nominated Dr. Wallace Duvall. Carol BraMley seconded the motion. Dr. Duvall was unanimously elected as committee chair. Dan Leal took nominations for HSAC vice-chair. Carol Bounds nominated Teri Rheault. Peggy Kelly seconded the motion. Teri Rheault was unanimously elected as vice-chair. Members reviewed the application and scoring sheet for FY 2002-2003 funding. Ms. Kelly noted that the subcommittee made a change on the scoring sheet adding a committee member evaluation and changing the existing scoring capability to only 90 poims. The subjective "committee member evaluation" would provide the additional 10 poims. Ms. Kelly poimed out that some agencies have excellent grant writers and may get good scores because of that. She stated that this was a chance to boost agencies based on committee members' subjective opinion of their program. Ms. Kelly reviewed the areas where poims were reduced to accommodate the additional category. Mr. Leal noted that there was a compromise regarding Dr. Myers' commem that some applications may not merit being scored if they did not meet the committee's criteria for funding. A section was added at the top of the scoring sheet: "Application meets committee's funding criteria" - yes or no. If the member does not want to score the agency application, then they can check NO and don't have to score it. Ms. Rheault pointed out the application requires the support of the agency's Board of Directors and that the Board President must sign off on page 1 of the application. Dan Leal Page 66 poimed out areas in the application that did not change and discussed why not. Ms. Kelly stated that there needed to be a correction regarding 3a and b. She said that V:a page would be enough for "a" and leave "b" out of the parenthetical statement. Mr. Leal stated that he received some correspondence from Mr. Williams asking for information on the ethnic and gender make-up of the agencies' Boards of Directors, cliem base, staff and volumeers. Mr. Williams stated that he saw nothing about the ethnic make-up of the cliems. Ms. Kelly said that the information is on the City's beneficiary report. Mr. Williams stated that it was not requested in the application and it should be. Members poimed out that this information is requested on page 14 of the application. Ms. Tomboulian noted that Friends of the Family does not require this information. Mr. Leal poimed out that all the agencies the City funds provide the ethnic breakdown of clients. He also noted that some agencies don't report income information such as RSVP, the DeNon Family Resource Cemer, etc based on their mission. However, staff is working with each of the agencies to have them all report income information. Mr. Leal suggested that the question regarding staff racial make-up could come under section V.A.2. Members suggested that it be included in the existing question. Ms. Bounds suggested that the application include the "mixed" category from the census. Mr. Leal stated that he would check the census and get that information. Members agreed to leave the wording of the "mixed" category and the question about staff make-up to Mr. Leal. Members discussed whether they should ask the same question of volumeers. Mr. Leal will incorporate this imo the application under V.A.3. Mr. Leal commemed that application trainings will be provided for the agencies on December 4 and 6. Mr. Leal reviewed the changes to the application. He asked for other changes from the members. Ms. Kelly asked for a correction to the budget sheet to take out the "omit" areas. Ms. Kelly noted that VII B. should say during the "current" contract year and the next year dates are incorrect. She also noted on the scoring sheet that the upper case letters should be changed to lower case. Only the beginning of the line would have the capital letters. Ms. Kelly noted that she would like to have more poims in the budget section of the application. She noted that they could only take away two poims if they had findings on their audit or material weaknesses. Dr. Duvall suggested that they take some away from the 10 poims for subjective committee opinion. Ms. Bounds felt that budget is an important factor. Mr. Williams said that some of the items on the scoring sheet cannot be measured such as "coordinates with providers to maximize program effectiveness." Mr. Williams discussed cliems being assisted by a cominuum of care and suggested agencies by scored by measuring the number of referrals. Ms. Kelly poimed out that the scoring sheet follows the application. Ms. Kelly asked if they could list the service providers they work with and explain how you coordinate with them. Ms. Ross poimed out that agencies are able to provide additional information upon the committee members' request. Ms. Rheault felt like that could be a 5 points question instead of 10 points. Mr. Williams agreed. Page 67 Ms. Kelly explained why the budget information was set up in this way. Ms. Tomboulian pointed out that agencies weren't reporting to staff and this was a way to show them that this was important. Ms. Kelly mentioned that staff reviews these on a monthly basis and there is time for the agencies to improve in these areas so, this is why it was not scored so highly. Ms. Tomboulian discussed why the budget information was set up. Mr. Leal explained how a "risk analysis" has been developed to determine which agencies receive a formal monitoring visit. A copy of the formal monitoring letter would be included if they were monitored. He suggested that HSAC might want to get some information regarding how staff monitors the agencies. Ms. Kelly stated that this helps because the committee knows that staff has been monitoring the agencies and if there were problems, staff could inform committee members. Ms. Bounds asked if there is an evaluation of the budget to determine the amount of funding agencies spend on staff compared to how much is spent on client services. Ms. Kelly noted that some agencies like RSVP use more funds for administration because volunteers are not paid. Ms. Tomboulian stated that staff salaries are included in the application. Mr. Leal suggested giving 6 or 5 points on material weaknesses. Ms. Bounds suggested that some agencies have a lower staff to client ratio because their clients may require more attention. Ms. Ross stated that some staff costs are not always administrative but often project or program-related. Mr. Leal noted that the committee had seven points to play with. Ms. Kelly suggested taking one point off each category. Mr. Williams suggested that the 10 points be discretionary. Ms. Kelly stated it is discretionary. Mr. Leal reviewed the points on the scoring sheet. Dr. Duvall stated that he did not feel points should be taken away from other categories and given to the subjective area. Ms. Hughes stated that she felt it should not be quite so subjective but should be more objective. She commented that they should be able to say if it is a good application but it is not something that the City should fund. Ms. Rheault felt that Ms. Hughes was saying the same thing but not using the term "feel." Ms. Hughes noted that if the program does not meet a community need then it is a worthless application. Ms. Kelly stated the subjective comments were made after the scoring sheet was completed last year. Ms. Hughes suggested that a scoring question be asked "the amount of money requested is appropriate for the services provided." She suggested the question go under the budget category. Ms. Bounds stated that in the end you really make a personal feeling about who is more deserving. The question suggested by Ms. Hughes gives some type of tabulation to see which applications have the most support. Dr. Duvall stated that this would come out in other parts of the scoring sheet. Other members disagreed. Ms. Hughes felt perhaps they were asking the wrong question. Mr. Williams stated that the scoring needed to be stricter. He said the best way to spend taxpayer's money is that all funds are spent on the client and volunteers provide the service. Mr. Williams stated that he grades things on the way they're supposed to be. Mr. Williams moved that the ten- point question be moved up to the budget section and reworded. Ms. Hughes stated it should read something like "budget request amount is appropriate for services provided." Members discussed the motion. The vote was unanimous in favor of the motion. Ms. Rheault made a motion to change the scoring in sections 3 & 4 to make up the difference for the additional ten points. Ms. Hughes Page 68 noted that program design is crucial and that this should have more poims rather than just one more than material weakness. If you don't have a community need that is urgem and a program design that meets that need then the program probably does not merit funding. Ms. Rheault amended the motion to put material weakness back to five points and program design to eight points. Mr. Leal again reviewed the revised scoring sheet poims breakdown. Mr. Williams asked about percentage of Denton residents served. He wanted to switch the number of points for maximize program effectiveness with the number of points for percentage of Denton residents served. Mr. Leal pointed out that agencies were not getting paid for non-Denton residents. Ms. Ross explained why the question regarding percemage of DeNon residems was included in the application. Dr. Duvall asked about the next meeting. Members agreed to meet January 22, at 6:30 pm. Monitoring will be discussed and meetings will be scheduled for funding deliberations. Members discussed the agency visits. Mr. Leal reviewed the visit schedule, and members discussed the importance of making sure each visit was attended. The meeting was adjourned. Page 69 City of Denton Human Services Advisory Committee Official Minutes January 22, 2002 The City of Denton Human Services Advisory Committee met on January 22, 2002, in the City of Denton Community Development Conference Room located at 100 West Oak, Suite 208. Those in attendance included: Elinor Hughes Peggy Kelly James McDade Dr. Wallace Duvall Betty Tomboulian Dr. Bettye Myers Carol Brantley Dan Leal, staff Those absem included: Carol Bounds, Caleb O'Rear, Teri Rheault, Carl Williams Dr. Wallace Duvall, Chair, called the meeting to order at 6:35 p.m. Dr. Duvall asked the committee members if they had reviewed the minutes of the October 23, 2001 meeting. Peggy Kelly made a motion to approve the minutes as written. James McDade seconded the motion. The October 23 minutes were approved unanimously with no changes. Dan Leal gave a presemation explaining how the Community Developmem Division monitors human services agencies under contract with the City of Demon. Mr. Leal asked committee members to refer to the handout "City of Demon Human Services Monitoring" which he had prepared for the meeting. The purpose of the presentation was to explain to committee members what is expected of human service agencies that are funded by the City of Demon. Mr. Leal said the Community Developmem Division has the same reporting expectations for agencies that receive federal Community Developmem Block Gram funds and for agencies that receive City of Demon general funds. Mr. Leal explained that each agency emers imo a contract with the City of Demon that explains requiremems set forth by the city. He said each comract is very detailed for the protection of the City and so that agencies understand reporting requiremems and are accountable for the funding received from the City of Demon. Mr. Leal said each contract includes a work statement that is based upon the language used by the agencies in their funding applications. Each work statement also includes outcome measures so that agencies show measurable progress in service delivery. He said the outcome measures and work statements might also include expectations suggested by the Human Services Advisory Committee. Mr. Leal said each contract includes a contract budget, which is Exhibit B. The contract budget is derived from the funding applications submitted by the agencies. Mr. Leal said the comract fiscal year begins October 1 and concludes September 30. He said each agency must submit quarterly reports to the Community Developmem office within 15 working days after the previous quarter has expired. Mr. Leal said each agency must complete a quarterly beneficiary report. Agencies are asked to Page 70 provide information on number of persons assisted, number of households assisted, clieN income by category, clieN race/ethnicity, number of females heads of household, and number of persons with disabilities. Mr. Leal distribNed a chart to the committee that shows the income limits and categories. Mr. Leal said agencies must also submit quarterly financial reports. He said most agencies do monthly financial reports for their board meetings. Mr. Leal said he expects a profit and loss statement and a balance sheet from each agency. He explained that some agencies provide better financial reports than others. However, having a balance sheet and profit and loss statement gives staff a better idea of how agencies are doing from month to month. The balance sheet shows how much funds are available to the agencies in terms of checking accouNs, savings accounts and other assets. He said agencies must also submit Board minutes every three months. Mr. Leal reads over all Board minutes submitted by agencies. This allows staff to know what is going on with each agency on an ongoing basis. If there are questions after reading over Board minutes, he calls or sends correspondence to the ExecNive Director. The agency directors are happy to reply to Community Development questions. All quarterly reports are kept on file for each agency. Mr. Leal coNinued by discussing reports that are due annually. He began by discussing annual audits. Mr. Leal said he reviews agency audits looking for material weaknesses and iNemal coNrol problems. He also looks at audited statements to take an in depth look at the agency's financial situation. He said agencies are required to submit proof of premise liability insurance that names the City of DeNon as an additional insured. Mr. Leal said agencies submit a year-end beneficiary report that includes the same information that is included in the quarterly reports. Information from the year- end reports is submitted to the U.S. Department of Housing and Urban Development. Mr. Leal explained that he has constaN coNact with the agencies funded by the City of DeNon. He said he conducts an informal visit with each agency at least once a year. The informal visits are for the purpose of seeing the agencies provide their services in person. Informal visits include conversation with staff and may include technical assistance. Mr. Leal reviewed the risk analysis for agency monitoring. The risk analysis was designed to determine which agencies needed a formal monitoring visit. Mr. Leal said just because an agency had a formal monitoring visit didn't mean it was doing a bad job. For example, programs that are in their first three years of funding receive a formal monitoring visit. He cited other reasons that necessitate a formal monitoring visit including financial difficulties and being delinqueN in submitting reports. He said eleven agencies received formal monitoring visits last fiscal year. Mr. Leal said the City of DeNon Senior Grants Accountant accompanied him on six of the monitoring visits. The CPA wen on visits with agencies where Community DevelopmeN staff had fiscal concerns. The Senior Grants Accountant provided her own financial report to go with the Human Services Coordinator's monitoring letter. The monitoring letter from the Human Services Page 71 Coordinator includes an analysis of agency contract compliance, programming and financial practices. Ms. Kelly asked Mr. Leal if he required a formal audit for the Community Food Room even though it has such a small budget and no paid staff. Mr. Leal said the Community Food Room has been able to get a formal audit completed for free with the assistance ora business class from Texas Woman's University. A university professor, who is a CPA, oversaw the audit. Dr. Bettye Myers said she is aware of two instances where agencies had received clean audits but were on the verge of bankruptcy. Dr. Myers said one or two accounting firms are doing most of the non-profit audits. She said she sees this as a problem. She said agencies spend a lot of money on conducting formal audits. Mr. Leal said having a clean audit doesn't mean an agency is doing well f'mancially. Dr. Myers asked what the City requires at a minimum from the agencies. Mr. Leal responded that the City requires a formal independem audit. Dr. Duvall moved to the next item on the agenda. The Committee discussed whether or not it wanted to hear presentations from each agency. Ms. Brantley said she didn't think the committee could make good decisions unless it had a chance to meet with the agencies in person. She said it would be helpful to the new people on the committee to meet with the agencies. She said it would be good to be able to ask questions of the agencies that committee members wouldn't think of when reading the applications. Dr. Duvall said visiting the agencies in person is more beneficially. Ms. Kelly agreed. Ms. Hughes said there are new six agencies that the committee has not had the opportunity to visit. She said that all agencies should be visited in order to be fair. Committee members commemed on the number of agencies each of them has visited. Ms. Kelly asked about Our Daily Bread and how it could be eligible for funding without being its own 501C3. Mr. Leal said Our Daily Bread had received discretionary funds from one of the City Council members. The organization was informed about the Human Services Advisory Committee's application process. Mr. Leal said Our Daily Bread was requesting funding under St. Andrew Presbyterian Church's 501 C3. Dr. Myers asked if religious programs could be funded. Mr. Leal said religious social service activities were eligible for funding through C.D.B.G. as long as there was no proselytizing by the organization. Organizations could receive funding through C.D.B.G. if they were not making participating in religious activities a condition of receiving services. Our Daily Bread does not require participation in religious activities. The committee cominued discussion about whether or not it would meet with the agencies in person. Dr. Myers brought up the example of how the Denton Benefit League handles agency presentations. She said the Denton Benefit League asks the agencies for a ten-minute presentation, and it is a very comfortable process. The Demon Benefit League asks the agencies 1 .) what will result from Page 72 funding the program, 2.) what difference will the program make to the community, and 3.) to prioritize what part of the request is in most need of funding if all of the request cannot be funded. Ms. Tomboulian discussed how the committee had redesigned the application to take some of the emphasis off the quality of speakers. Ms. Kelly said the applications have improved so that the committee did not have so many questions about the proposal. She suggested the prospective meetings with the agencies did not include questions aborn the applications. The Committee agreed to have ten-minute presentations with the agencies and ask the three questions suggested by Dr. Myers. The committee agreed to meet with the agencies over the course of three nights. The Committee also asked that program beneficiaries not attend the meetings and to limit the number of presenters to one or two agency representatives at the most. Mr. Leal said committee members should receive their funding application packets by February 1. He said funding recommendations need to be made by the middle of March. The Committee agreed to meet with the agencies on February 4, 11, and 18. The Committee agreed to hear from eight agencies on Monday, February 4. The rest of the agency presentations will be split between February 11 and 18. The meetings will begin at 5:30 p.m. each evening and will be held at the City of Demon Human Resources Conference Room, located at 601 E. Hickory, Suite A. The meeting adjourned at approximately 7:35 p.m. Page 73 Human Services Advisory Committee Official Minutes February 4, 2002 Members Present: Elinor Hughes, Peggy Kelly, Teri Rheault, Carol Bounds, Dr. Wallace Duvall, Dr. Bettye Myers, Carol Bramley, James McDade, Betty Tomboulian and Carl Williams. Staff Presem: Dan Leal, Human Services Coordinator; Barbara Ross, CD Administrator Vice-Chair Teri Rheault called the meeting to order at 5:32 pm. Ms. Rheault and Dan Leal reminded committee members that they are hearing presemations from the organizations requesting funds. Ms. Rheault asked Andre Villareal to make a presemation on behalf of Adult Day Care of North Texas. Mr. Villareal gave the address of the facility at 3809 Camelot. He noted that their goal was to serve Demon County with day activity and health services for elderly and disabled. Mr. Villareal stated that they are the only adult day care in Demon County and are filling a need for this type of service. There are families who warn to maimain the family unit and keep their disabled adult child or elderly parent at home and not in an institutional setting. Adult Day Care is able to meet that need. Mr. Villareal stated the services provided including snacks, daily activities, nursing, and a noon meal. Teri Rheault asked how they would use the funding if they received less than what they requested. Mr. Villareal noted that they receive $13.03 per unit of service from the State and this is supposed to include all services - meals and health care. (Most cliem's day at Adult Day Care of North Texas usually counts for two units of service). The City of Demon's funding would be used to support the actual cost of those services that is really $38.00 per day. Ms. Rheault asked if there were any questions. Bettye Myers asked if the funds would be spent on a specific program or were they just used to subsidize the Medicaid paymems. Mr. Villareal said that there are some private pay patiems but the low-income households cannot afford to pay the $38.00 per day that is the actual cost of care. This money will go to fund the difference between the $26.06 for a day of service and the $38.00. Dr. Myers asked if they hoped to move to a larger facility. Mr. Villareal stated that they are currently serving 19 persons and can only hold up to 25. He noted that by the time they get to 25 they would need a larger facility. Carol Brantley arrived at this time. Carol Bounds asked if the money the City gives only assists those from Demon. Mr. Villareal and Dan Leal stated that this was correct. Peggy Kelly noted that there are no minority clients at this time. She asked Mr. Villareal to respond to the commem. Mr. Villareal said they do have one minority that curremly attends the day care and will soon be assisting another individual who is a minority. Ms. Kelly asked if it was difficult to market it to minorities. Wallace Duvall arrived at this time. Mr. Villareal stated that it isn't difficult to market Adult Day Care, but he is not sure what the reluctance may be - perhaps cultural, the "we take care of our own" mentality. Ms. Rheault noted that she did not see a lot of disabled minorities out in the community. She was not certain why since she felt that there were disabled persons who were minorities in the Demon community. Dr. Myers asked what percentage the private pay clients are from Denton. Mr. Villareal stated that 50% of clients are from Page 74 DeNon and two of those are private pay. Betty Tomboulian came in at this time. Mr. Leal made an announcemem regarding the documems he had provided the committee members. He said the packet included information that had been left out of the first nine applications by agencies. Amy Docteur and Kathy Schaeffer from the Parks and Recreation Department introduced themselves. Dr. Myers asked specifically how the funding would be used. Ms. Docteur stated that $2,564 would be used for the Therapeutic Recreation Activity Club (TRAC) to provide scholarships to two participants. The balance of the funds would provide 25 scholarships for low-income families at any of the 11 After School Action Program school sites. The presenters were asked how they advertise that scholarships are available. Ms. Schaeffer said that they send out notices to those who have attended in previous years explaining the scholarship program. She added that school counselors are aware of the scholarships and that information is included in PARD newsletters. Dr. Duvall asked what the difference the program would make in the community. Ms. Docteur said that the TRAC program will help children ages 6 - 22 to have an interest in physical activity. She noted that this was a problem with children who have a disability. Ms. Schaeffer said the kids that attend the After School Action Site (ASAS) program would not go home to an empty house, engage in recreational activities, have role models, etc. Dr. Duvall asked what would happen is they didn't receive full funding. Ms. Docteur stated that she would only be able to give one scholarship. Ms. Schaeffer said they would either provide half scholarships or fewer scholarships. Ms. Kelly asked if the therapeutic education was for children. Ms. Docteur stated that this was to help people make healthier choices it was available to individuals from ages 6 - 22. She noted that this was the age range mandated by the Individuals with Disabilities Education Act. Dr. Myers asked if they bring all the children to one site. Ms. Docteur stated that they currently have one site at the North Lakes Recreation Center. Ms. Ross commented that PARD had previously had some scholarships available from other sources and asked if these were no longer available. Ms. Schaeffer stated that in the past if they had money left over in the program, it could be used for scholarships. However, costs have been increasing and they no longer have money left over that is available for scholarships. Ms. Rheault asked why the Parks Foundation money not used for scholarships. They indicated that these funds were not available to their programs. There was some discussion regarding whether the Parks Foundation funding should or could be available for ASAS and TRAC scholarships. Dr. Duvall asked Dan Leal to talk with PARD officials and determine whether the Parks Foundation funding could be used for scholarships for the TRAC and ASAS programs. Dr. Myers suggested they talk with John Whitmore. Committee members complimented Ms. Schaeffer and Ms. Docteur on their programs. Represematives from AIDS Services of North Texas arrived and introduced themselves. Dr. Ron Aldridge, Executive Director, imroduced himself and Ms. Susan Stambaugh, the agency's dietician. Dr. Myers asked them to explain how they were going to use the $15,000 requested for food. Dr. Aldridge thanked the committee for funding the program last year. Ms. Stambaugh explained that most of the funds for the nutrition program had previously come from Ryan White funding. She noted that people with AIDS are living much longer and therefore the agency is assisting people for a much longer period of time. The Ryan White funding is now going mostly to prevemion and yet, they still need food assistance for people and now they need it for a longer period of time. Ms. Page 75 Stambaugh stated that they do deliver groceries and that the program is only supposed to be supplememing what the individual purchases. She noted that they give them only two pounds of meat per week. She noted that the program has a nutrition coordinator. Ms. Stambaugh also explained to the committee why these individuals need good nutrition. She stated that the cliems need more calories than persons withom AIDS. Carol Bounds asked what difference the program would make in the community. Ms. Stambaugh stated that there are more people coming in and getting treatment. Good nutrition keeps people well for a longer period of time. It allows access to food to more people and they will have better care as a result. Carol Bramley asked how a reduced amoum of funding would be used. Ms. Stambaugh responded that if the money were reduced it would decrease the number of people that can be provided with nutrition assistance. She also stated she would probably have to cm om some foods - she'll have to determine which foods they must have and there may be no funding to give them the foods that would go with the high protein foods. Ms. Stambaugh noted that she is able to use a test to zero in on what each individual's nutritional needs are. Ms. Hughes stated that people seem to like to give food rather than money. She asked if AIDS Services has thought of strategies to get churches to give peanut butter or other items they may need to fill the pamry. Carl Williams arrived at this time. Ms. Stambaugh stated that they have done food drives bm still need funding to buy specific items. Ms. Stambaugh stated that they do a really good job of price shopping. Ms. Kelly asked if they are providing food for cliems and their families. Ms. Stambaugh noted that though they only provide individuals with food, they are certain that some are using it to feed the family as well. Mr. Aldridge imroduced Shannon Ratliff, director ofprevemion and outreach. Ms. Myers asked what the money would go for in terms of testing. Ms. Ratliff explained that funds would be used to purchase OraSure tests, which are oral swab tests, which are safer for cliems and staff. She explained the cost of the tests and its advantages. Ms. Ratliff stated that coming in and asking for the test is sometimes scary and so, this type of testing would make it more comfortable for people to come in. She noted that the Flow Foundation has given funding for 333 tests. The numbers of cliems being tested has skyrocketed. Dr. Aldridge reiterated that the fastest growing populations being newly infected are adolescents and women. He noted as a result of this, everyone wants to get tested. Ms. Bounds asked what difference the program would make in the community. Ms. Ratliff stated that if the client finds out that they're positive they may not infect someone else. If they don't know their status, they may infect others. Ms. Bounds asked if there were other organizations providing this service. Ms. Ratliff stated that ExHale Services of Tarrant County MHMR would perform an HIV test if the client has a substance abuse history. The SAVE program at UNT provides prevention services, but they use AIDS Services of North Texas to provide the testing. Ms. Tomboulian asked if a teenager wanted the test and if the agency were out of the free tests, would the individual have to pay to be tested. Ms. Ratliff stated that they never turn anyone down. If they didn't have a test, AIDS Services would send them to the Demon County Health Department. Dr. Myers asked why AIDS Services of North Texas tests were less expensive. Ms. Ratliff stated that they must test through the state lab and though it is less expensive, it takes longer. Carl Williams asked if there were any other groups that were at high risk and what type of outreach the agency did. Ms. Ratliff indicated that minorities were at high risk. She stated that AIDS Services of North Texas was doing a program this week at MLK and will provide free testing. She noted that they did omreach to all groups. Ms. Bramley asked how a reduced amoum of funding would be used. Ms. Ratliff stated any amount would help the citizens. Any one person they can Page 76 help would be good. She noted that they would do referrals to other agencies if they needed to. Carol Brantley asked if the testing was confirmatory or presumptive. Ms. Ratliff stated that it was confirmatory. Dr. Duvall asked if the $15.00 rate was negotiated. Dr. Aldridge stated that it was. Dr. Myers suggested that the TWU and UNT health cemers might be approached for a donation. Ms. Ratliff stated that Peggy Fogle has asked for funding assistance for the tests from Texas Woman's University and has been turned down by the administration. Ms. Bounds asked what percem of the service population are studems. Ms. Ratliff said that this proposal included only City of Denton residents. Tammy Atkinson, executive director for the Boys and Girls Clubs, and Vic Burgess, board chair introduced themselves. Dr. Myers asked Ms. Atkinson to explain how they intend to use the $15,000 requested. Ms. Atkinson said that it would pay the salary of the professional staff working with the kids. The balance of the funds would be used to pay for other expenses - $500 for supplies and $500 for transportation to take the kids on field trips. Ms. Bounds asked what difference the service would make in the community. Ms. Atkinson stated that the Boys and Girls Club is helping to keep kids offthe streets, give them role models, help with homework, and provide memoring. She noted that Boys & Girls Club staff members are often the only ones who have time to spend with the youth. Judge Vic Burgess added that the agency works on character developmem to help take them in the right direction. Ms. Atkinson stated that Mr. Burgess was an alumnus of the program. Mr. Williams asked what Ms. Atkinson meant by "preventative". Ms. Atkinson explained that they were talking aborn preveming them from violence, drugs and basically from going down the wrong road. Mr. Williams asked if they were planning to expand their program. Ms. Atkinson indicated that they had merged with Carrollton and Farmers Branch. Mr. Burgess stated that they are looking at providing services again in Fred Moore High School and also at the Optimist Club in North Demon. He noted that the Boys & Girls Club is trying to be more fiscally responsible. Mr. Burgess stated that the agency is building a foundation for the future. This won't happen overnight. Mr. Williams asked if there was a gang imervemion program. Mr. Burgess stated they had some training for the volunteers and administrative people to provide help in this area. Ms. Tomboulian asked about how they are going to go into the north part of Denton. Mr. Burgess noted that they had determined that this is an area with imervemion needs. He noted that they would soon be getting back imo omreach. He added that the national organization will help local Boys & Girls Clubs to maintain their programs but they expect you to do outreach. Carol Brantley asked if the emire amoum requested could not be funded how would a reduced amoum of funding be used. Ms. Atkinson stated they would have to find other methods of funding the programs. She stated they would write grams, do anything and everything to find the additional funding. Elinor Hughes stated she wanted to know what the average daily attendance was at each site and what age group the Boys and Girls Club was serving. Dan Leal stated he would find om this information and provide it to the committee. Tammy Herrera and Estella Jimenez representing Camp Fire USA introduced themselves. Dr. Myers asked how the agency planned to use the funding requested. Mr. Herrera stated they were going to use the funding for 1 V:staff members and supplies. Ms. Bounds asked what difference their program will make in the community. Ms. Herrera stated that the program would provide a safe after school program for teenagers in the Owsley community. She stated that they were going to teach the Page 77 teenagers to be leaders. Ms. Herrrera pulled om a teddy bear and explained that the teens come in and do their homework. She noted that staff keeps close contact with their teachers. They call the program "prime time." This is the time of the day when many teens get imo trouble. She added that they teach them to look at their environment in a different way. Ms. Herrera talked about some of the activities the studems participated in that helped others. The kids provided bears for the kids at Cook's Children's Hospital. She noted that they are building kids instead of repairing adults. Ms. Bramley asked what they would do if they received a reduced amoum of funding. Ms. Herrera indicated that they had reduced their request as much as possible. She told committee members that participams would also sell candy and that they would seek om other funding. She noted that they planned to hold the program one way or another. Ms. Kelly asked if they had worked with the Boys and Girls Club and make sure there is no duplication. Ms. Herrera noted that they work together. Camp Fire USA provides programming at the Owsley Community Cemer to Boys & Girls Club participants two days per week. Sherri Gideon and Janie McCleod of CASA made their presemation. Dr. Myers asked if this total amount was to go for the executive director's salary. Ms. Gideon stated that it would. She also noted that they receive money from the Colony, Flower Mound, Lewisville and a couple of large grants from the state of Texas. Ms. Gideon indicated that CASA attempts to get more of the administration funding from cities so that other sources could go to services. Ms. Tomboulian asked what the execmive director's salary was. Ms. Gideon stated it was $44,000. Ms. Bounds asked how their services made a difference in the community. Ms. Gideon stated that the organization is helping to imervene in the lives of children who have been victims. Children who have a CASA on their case stay in foster care for a shorter period of time. Ms. Brantley asked them what they would do with a reduced amount of funding. Ms. Gideon stated that CASA of Demon County has received the same amoum of funding from the City of Demon each of the four years it has applied for funds. Approximately 45% of the persons served are City of Demon residems. She noted that the City of Lewisville funds CASA at the same level as Demon and yet only 30% of the cliems are Lewisville resident. Ms. Gideon noted that Denton' s amount of funding is a constant question from other communities when they see how many cliems from Demon are served by the agency. Ms. Kelly explained that Denton has a much larger number of service agencies that request and are granted funding from the City. She added that she would venture to say Demon provides more funding social services than the other cities memioned. Ms. Bounds asked why there are more children served from Denton. Ms. Gideon stated that she did not know. Ms. Ross stated that it might relate to the larger number of low-income families in Demon. Mr. Williams asked how an increase in a salary would have an impact on the community. Ms. Gideon stated that it is not an increase. She noted that the salary would help the agency to maimain a balanced budget. Dr. Myers asked aborn board ethnicity. Ms. Gideon stated that they have good represemation based on the ethnicity of the clients. She noted that they were getting some Hispanic representatives on the board. Jane Graham, execmive director of the Children's Advocacy Cemer of Demon County, imroduced herself. Dr. Myers asked how the agency planned to use the funding requested - $17,000. Ms. Graham noted that it would be used to pay for salary expenses, insurance and benefits for staff members providing direct services to Demon cliems. Ms. Bounds asked what differences their services would make in the community. Ms. Graham indicated that abuse affects juvenile criminality and adult criminality. The Children's Advocacy Cemer reduces the trauma for children who have to Page 78 go through the system. The agency promotes emotional healing through comprehensive counseling services, information is shared producing stronger criminal cases Ms. Brantley asked what they would do if they received a reduced amount? Ms. Graham stated that they would attempt to find funding elsewhere and do additional fund raising activities. Dr. Myers asked how she would explain the difference between CASA and the Advocacy Cemer. Ms. Graham explained that CASA is involved in the civil case and the Advocacy Cemer is involved in the criminal case. CASA is involved in recommending the best placemem for the child. She noted that CASA joins in the multidisciplinary team that works on each case. Ms. Tomboulian stated that one difference is that the Children's Advocacy Cemer tapes the imerview to make sure the child doesn't have to relive the experience. The Children's Advocacy Cemer is involved in the criminal case. Mr. Williams asked what emotional healing and comprehensive programs means. Ms. Graham stated that they provide healing by providing counseling. Mr. Williams asked how he would know an emotionally healed child if she/he were walking down the street. Ms. Graham stated that it would be difficult to determine. The outcome might be years down the road. Ms. Graham added that abused kids and the non-offending caregivers are offered counseling whenever they need it. if it were needed in the future after a long period of time without counseling, it would be available to them again. The counseling is ongoing and there is group counseling and individual counseling. Ms. Hughes asked why their income levels are broader this year. Ms. Graham said they have seen more low-income families than they had in the past. She noted that in the past they were not tracking income very well. Ms. Kelly commemed that she noted that about 20% of the families served are from Demon and she knows that the Children's Advocacy Cemer would like to see funds provided in a proportional manner. Ms. Kelly commemed on the larger number of agencies that come to the City of Demon for funding than come to other communities. Ed Ellis, treasurer, with the Community Food Cemer introduced himself. Dr. Myers asked how the funding requested would be used. She noted that the funding was going to be used for utilities and asked Mr. Ellis to explain the costs. Mr. Ellis stated that in the past, they just brought the bill imo the CD Office and it was paid. Now, they pay the bill and then request a reimbursemem from the City. Mr. Ellis reviewed the amoum of funding used by the agency for utilities. Dr. Myers was concerned that their utility costs may be increasing. Ms. Bounds asked what difference the program will make in the community. He noted that the churches bring the food and if the Community Food Center were not there to distribute the food this service would stop. Dan Leal stated that their cupboards were bare before Christmas, but the agency was able to get food and serve those who needed it. Ms. Bramley asked what would happen if they received a reduced amoum of funding. Mr. Ellis said that would mean that funds would have to go to utilities rather than groceries for families. Dr. Duvall indicated that the HSAC appreciated the work done by the Community Food Cemer. Mr. Leal noted that he was unsure whether $3,000 would pay all their utility costs next year. Dr. Duvall stated that they possibly had other funding sources that could pay for any additional costs. Ms. Bounds asked if the committee could give an agency more than what was requested. Members agreed that they could and have done this in the past. Dr. Duvall asked about changes to the process. Ms. Hughes asked if the first question could be changed to include the second question rather than asking them what they are going to do with the money. Dr. Myers pointed out that in some applications it is not clear how they are going to use the funds. Mr. Williams stated his concerns about the City paying to increase the salaries of agency Page 79 personnel. Ms. Kelly poimed out that the funding for salaries must come from somewhere and that many funding sources prohibit the use of funds for administrative salaries. Funds must be used for project-related expenses. Mr. Williams stated that most programs provide up to 15% for administrative expenses. He felt the expenditures should go to assist the clients. Ms. Tomboulian stated that you need a competent person to administer the program, or it might not be successful. She noted that last year the Children's Advocacy Cemer was not given full funding because the agency was requesting to fund an increase in the executive director's salary that was already somewhat higher than those of other agency directors. Members cominued to discuss the issue of paying for salaries. Ms. Rheault asked what the actual salary was for the executive director of Camp Fire. She noted that the range said $70,000 to $150,000. Mr. Leal stated he would get this information for the committee. Ms. Bounds asked Mr. Leal whether the agencies do a good job of using and managing their funds. Mr. Leal suggested that the members review the monitoring reports for those agencies that were monitored during the past year. He added that he provided the monitoring reports for the Boys and Girls Clubs and Adult Day Care in handouts because they were not included in those agencies' applications. Ms. Bounds suggested members try to assess how many employees are needed in the various areas. Ms. Tomboulian and Mr. Leal stated that some agencies may seem staff heavy, but it depends on the kind of service that is being delivered. Dr. Myers asked what the difference was between the Boys and Girls Club program and the Camp Fire program at Owsley. Ms. Rheault felt that one dealt with troubled teens as opposed to providing after school care for kids. Mr. Leal stated that the programs were very similar. Camp Fire is at Owsley twice per week right now. They receive some United Way funding. James McDade stated that they actually received very little in United Way funding. Mr. Leal poimed out that in this application they are targeting teens. Mr. McDade pointed out that there are two other groups coming in that want to carry out similar programs in Owsley. Mr. Williams stated that he was concerned about an emerging gang problem in DeNon and yet the city seems to have its head in the sand. He noted that the Ft. Worth Boys and Girls Club runs a gang intervention program. Mr. Leal said there is a gang intervention program run by the Denton Police Department. Ms. Bounds asked why Owsley has some many programs serving the area. Ms. Kelly stated it was because they had nothing for so long. Mr. Leal also pointed out that Greg Hedges of the Denton Police Department has done a lot for the neighborhood, and he has recruited several organizations to assist with programming in the neighborhood. Ms. Kelly stated that there were two applications on the last night that perhaps the committee would choose not to hear since they don't appear to be suitable for funding. She noted that St. Andrew Church of God's application to provide day care services was not complete. Ms. Kelly also noted that the "Training for Excellence" was not appropriate for funding. Mr. McDade stated that he felt St. Andrew's application was not complete. Mr. Williams agreed. Members agreed to make a decision next week whether to allow these organizations to make a presentation. Mr. McDade asked if the City would fund for equipmem like the dolls requested by one agency. Mr. Page 80 Leal and Ms. Ross explained that equipment purchased with CDBG funds does not belong to the agency. It belongs to the City, and staff has to track it for its "useful life." Staff has asked HSAC in the past to fund equipment using general funds so it won't have to be tracked. She mentioned that staff is still tracking equipment for a couple of activities. Ms. Tomboulian provided some additional information about the proposed day care center at St. Andrews Church of God. Mr. McDade noted that his church started a childcare but started it with contributions from the church membership. Mr. Williams stated that he felt the committee should not review the applications from agencies that cannot complete the required document. Mr. Leal reviewed the schedule with members. Members discussed the starting time and agreed to begin the meetings at 6:00 p.m. rather than 5:30 p.m. Peggy Kelly moved to approve the minutes of the meeting held on January 22, 2002. Carol Brantley seconded the motion. The minutes were approved with no corrections. The meeting adjourned at approximately 7:50 p.m. Page 81 Human Services Advisory Committee Official Minutes February 11, 2002 Members Present: Elinor Hughes, Peggy Kelly, Teri Rheault, Carol Bounds, Dr. Wallace Duvall, Carol Bramley, James McDade, Betty Tomboulian and Carl Williams. Members Absem: Dr. Bettye Myers Staff Present: Dan Leal, Human Services Coordinator; Barbara Ross, CD Administrator Chairperson, Dr. Wallace Duvall, called the meeting to order at 6:00 pm. Dan Leal described the additional information provided to committee members regarding some of the applicams. Carol Bounds asked whether they are able to fund agencies that don't necessarily serve low and moderate- income households. Members discussed that those services may have to be funded from the general fund. Dr. Judy Keith, Executive Director of the Cumberland Presbyterian Children's Home, introduced herself. James McDade asked Dr. Keith to summarize the program for which they are requesting funds. Dr. Keith stated that in recem years the Cumberland Children's Home has started working with families in addition to the children that stay at Cumberland Children's home. She stated that they are looking at a family-based approach to encourage and assist the families so that they may raise their own children. Dr. Keith stated that they send a team of two social workers into the home to assess the situation. She said they try to keep those families together. The social work position for which they are requesting funds will provide in-home services. The new single parem program allows Cumberland to take in both the parem and the children. They are moved imo one of the cottages on the property. Cumberland provides employment counseling to attempt to get the families back on their own feet. They also assist with health care, education and other services. This is aside from the basic children's residemial care componem that has always been offered. Teri Rheault asked what difference this program would make in the community. Dr. Keith said that the program would give the single parem an opportunity to be independem. She noted that this is a unique service in the community. City funding will allow for expansion of the existing program. The social worker will also provide "after care." Ms. Kelly asked what they would do if they only received a portion of the funds requested. Ms. Keith stated that they would hire as much ora social worker as possible. She added that the individual would not have to have a social work degree. Less funding would mean they would hire a part-time person. Ms. Kelly noted that most of their board members are not from Demon. She inquired as to whether Cumberland could have a Demon- based advisory board for this program that could meet more than twice per year. Dr. Keith noted that there are six Demon citizens on the board are very active and that they would be very open to setting up an advisory committee for this program. Carl Williams commemed that the board was not ethnically diverse. He also asked what she meam by the term "after care." Dr. Keith stated that after the family leaves the residential program they continue to receive services for up to two years. Page 82 Mr. Williams asked what their case managemem standards are. Dr. Keith stated that they were developing the standards for case managemem. The routine set up involves how many phone calls and home visits are made. Mr. Williams asked if what she was saying was that there were no standards curremly used by the facility. Dr. Keith indicated that this was correct. Ms. Bounds asked how long they had been serving the four families. Dr. Keith stated that they began serving them in September. Judith Royal, Executive Director, and Jane Moynagh, volumeer and former Board member, from the DeNon Christian Preschool imroduced themselves. Mr. McDade asked them to summarize the program for which they are requesting funds. Ms. Royal said that last year they used the funds to start a fifth class to help fill the need for more childcare and early childhood education in DeNon. The classroom was added in September. The children get transportation, meals, medical and diagnostic screening. DeNon Christian Preschool would like to cominue the program for another year. This would allow the children from this year's new three-year-old class to cominue to receive childcare as four year olds. Ms. Rheault asked how this program benefits the community. Ms. Moynagh stated that this program attempts to address the needs of the whole family. The parents receive pareming classes. Ms. Moynagh noted that they have helped to relieve the burden off other agencies by working with these families. She commemed that the program makes them better parems. Ms. Kelly stated how limited funding curremly is and asked what the preschool would do if they received a reduced amoum of funding. Ms. Royal stated that these funds provide a teacher's salary and other support staff to keep this program going. She stated that the agency would be forced to secure the rest of the funding from another source if it were available. She noted that she was uncertain as to where they would get the additional funds. They seem to have asked every organization for funding. Ms. Moynagh stated that they have a difficult time finding bilingual staff and that they have hired one for this program. Ms. Royal stated that their salaries are not up to the level of other organizations including the school district so it is therefore difficult to hire and retain quality personnel. Elinor Hughes asked if the parems have been involved with or referred to the DeNon Family Resource Cemer. Ms. Royal indicated that they did refer families to the DFRC especially for their counseling services. Ms. Moynagh stated that because they have the children for two years, the families really trust Denton Christian Preschool, and they don't always trust the individuals working in other organizations. Carolyn Berry, Executive Director and Bob Tickner, Board member, with the DeNon City County Day School imroduced themselves. James McDade asked them to summarize the program for which they were requesting funds. Ms. Berry stated that they were asking for support with the salary of teachers. She noted that they have 66 children enrolled in the school. Carol Bounds asked where the facility was located. Ms. Berry provided the information that they are located at 1603 Paisley and explained how to find the school. Ms. Berry noted that they serve breakfast, lunch and two snacks. She discussed their curriculum. Ms. Rheault asked what difference their program would make in the community. Ms. Berry noted that they are one of only two cemers that provide day care on a sliding scale. These funds allow the agency to keep their fees at a reasonable rate. Ms. Kelly commemed about the limited amount of funding that is available through the City and asked Ms. Berry what they would do if the agency didn't receive everything that was requested. Ms. Berry stated that they would have to consider raising fees to cover these costs. Ms. Rheault asked if these were new teachers. Ms. Berry stated that these are existing teachers. Ms. Berry stated that they Page 83 were getting $10,000 in funding from the County for the first time. Mr. Williams noted that they have no Hispanic board members. Ms. Berry indicated that they do now as Cirilo Pedroza, was just asked to join the board. Mr. Williams also noted that the percemage of minority board members does not match the percentage of minorities in the service population. Ms. Berry and Mr. Tickner indicated that they were always looking for board members. Mr. Leal commemed that the population might have just recemly changed recemly due to a change in programming. He asked Ms. Berry to explain that change. Ms. Berry stated that now they have one English as a second language classroom. This is a new program that has just begun. Ms. Ross noted that CDBG funds are being spem to improve the facility. Work being completed includes new flooring, additional insulation and a new HVAC system. The Community Developmem Advisory Committee recommended the funding for improvemems for the currem fiscal year. At this time, Dan Leal provided the committee with answers to the questions asked by members after the last meeting. He stated that Denton City County Day School's 2002 expenditures showed $10,000 under "program fee supplements" but this money is not in the 2003 budget. This is the Denton County money, and DCCDS doesn't anticipate receiving the funds again. It helps to offset costs for clients who do not live in the City of Denton. Ms. Kelly asked if the school is going to apply for the funds again. Mr. Leal stated he would find out. Mr. Leal stated that there were some concerns from committee members regarding MHMR's past audit. He noted that he has provided a copy of MHMR's letter to the auditors in response to the audit. Mr. Leal stated that they responded to all concerns in the audit. He added that the agency seems to be recovering from past financial problems. Ms. Kelly commented that MHMR did not include their monitoring letter. She added that she did not appreciate it when agencies that are requested to include monitoring information do not include it in their applications. Ms. Kelly asked why Adult Day Care's expenses for the coming year are so much lower than the previous budget year. Mr. Leal stated that he would get this information for the committee. Dawn Tawwater, Director of Developmem, Friends of the Family imroduced herself. James McDade asked her to summarize the program for which they are requesting funds. Ms. Tawwater stated that Friends of the Family is requesting funds for the direct services that they provide to victims of sexual assault, relationship violence and FOF's child and adolescem program. Ms. Tawwater noted that these children are secondary or direct victims of family violence. Friends of the Family offers safe shelter, counseling, advocacy and support. Ms. Rheault asked how their program would impact the community. Ms. Tawwater stated that these services would become available at a local level. She stated that if the service were not available in DeNon, the closest place they could be served would be Grand Prairie or Oak Cliff. She noted there would be a big gap in services for this particular population. Ms. Kelly asked what the agency would do if they received less than the requested amount of funding. Ms. Tawwater noted that Friends of the Family would spread out whatever funding they received as much as possible and then attempt to find additional funds. Ms. Rheault stated that it appeared the funds were not going imo anything specific and asked if this was correct. Ms. Tawwater stated that these funds would go into direct services for victims of sexual assault and relationship violence. Melissa Eckstein with DeNon County MHMR imroduced herself and stated she would be talking Page 84 aboM the AdolesceM Substance Abuse Program (ASAP) first. James McDade asked Ms. Eckstein to summarize the program for which the agency is requesting funds. The AdolesceM Substance Abuse Program does oMreach to 13 to 17 year old adolesceMs in the City of DeMon. The program allows staff to go iMo the schools and iMo the community to provide information aboM substance abuse. MHMR also provides individual and group counseling. Ms. Rheault asked how the ASAP program would benefit the community. Ms. Eckstein stated that substance abuse is a problem, and there are not many services provided in this area for adolesceMs. She noted that Vanessa Simms does a lot of education with pareMs and other adults in the community including churches, the judges and others. Ms. Kelly asked what they would do if they received less than the requested amount of funding. Ms. Eckstein stated that a reduction in funding would limit the amount of outreach that could be done. CurreMly, Ms. Sims goes oM to the schools, community and iMo the homes. Ms. Hughes asked if less would be speM on travel or exactly how this would affect outreach. Ms. Eckstein stated that Ms. Simms provides a lot of handouts and the travel expenses would have to be decreased as well. Ms. Kelly asked that she clarify her application response on oMcomes. Ms. Kelly asked how many people are in the program and how well it is working performing. Ms. Eckstein stated that they lost their staff member, and it took six months for her to find another staff member. She noted that they did oMreach bM they were not able to do individual and group counseling. Ms. Kelly asked if there was another time when they did not have a staff member. Ms. Eckstein replied there was only the six-month period she spoke of. Mr. Leal noted that last year the agency served 38 students. Currently, there are four clients being served by the program from Denton. Ms. Eckstein stated that Ms. Simms just started two groups, but Ms. Eckstein could not say how many youth were attending the group sessions. She noted that Ms. Simms basically had to start the program from scratch because of the six months between staff members. Mr. Williams asked for a measurable definition of oMreach. Ms. Eckstein stated that it is being able to give information on substance abuse to the community. Mr. Williams asked if she could do outreach on the phone. She stated that was correct, but it was also important to give out the pamphlets. Mr. Williams asked aboM the diversity of the board. Mr. Leal stated that the Board is appointed by the County Commissioners. Ms. Eckstein noted that she has three African Americans and an Asian on her staff, and their psychiatrist is from India. Ms. Tomboulian stated that three years ago she had an adolesceM that was in need. She asked if this is a program where a mother who needs help with a child who is oM of control could bring that child in. Ms. Eckstein stated DeMon County MHMR would assist that type of family. James McDade asked Ms. Eckstein to summarize the SIERRA program. The SIERRA Program is used to provide services to individuals in the criminal justice system who have meMal illnesses bM are not in MHMR's priority population. The program offers oMreach, group counseling and case managemeM. The program helps these individuals link with resources in the community. Sometimes it can be confirmed by their participation in the program that they are priority population. Priority population includes individuals with major depression, bipolar disorder (manic depression), schizophrenia and persons whose Global AssessmeM of Functioning (GAF) score is 50 or below. SIERRA staff assists clients with receiving an intake appointment with Denton County MHMR staff. If SIERRA clieMs are determined to meet priority population then they can receive services under the traditional programs. Ms. Rheault asked how their program would impact the community. Ms. Eckstein noted that the recidivism rate is reduced. Folks coming oM of prison have a difficult time accessing resources. Ms. Kelly asked what they would do if they received less than the requested Page 85 amouM of funding. She noted they had requested a considerable increase. Ms. Eckstein stated that MHMR is putting a lot iMo this position. Funding in the past did not even pay for half of this position. A reduction in funding will affect availability of staff. Ms. Eckstein noted that she had cM a service coordination position to fund SIERRA. She noted that MHMR would have to evaluate whether that was something they would continue to do. Ms. Eckstein noted that the staff member' s assistance numbers have gone up. Mr. Leal stated there was an error in the application. On page 11, the application stated they served four clieMs during the last fiscal year bM DeMon County MHMR actually served 31 SIERRA clieMs. Ms. Kelly asked Ms. Eckstein if she would commeM regarding which program would be a priority. Ms. Eckstein noted that sometimes adults have more advocates than children. Ms. Hughes commented that this question is what the committee must deal with. Ms. Eckstein stated that she was glad she didn't have to make that decision. Mr. Leal asked her to explain the continuity of services that SIERRA provides. Ms. Eckstein stated that they've had this program for several years and there is quite a bit of networking that did not take place before the program existed. Ms. Eckstein meMioned specifically support with medications. She noted that there are a lot of people who are left oM of the priority population group that need these services. She stated that there is no other program that does what the SIERRA program does. Mr. Williams asked what the casework management standards are. Ms. Eckstein stated that they use old case management by at least one face-to-face visit per month. Dr. Duvall asked if MHMR's funds come from the State or from the County. Ms. Eckstein stated that only a very small amount comes form the County - approximately 90% comes from the State. Mr. Leal said the county usually provides DeMon County MHMR between $350,000 and $400,00 annually. This is less than 3% of DeMon County MHMR's total funding. Donna Miller, Board PresideM, and Sue Dansby, voluMeer coach, for the DeMon Dynamos Special Olympics iMroduced themselves. James McDade asked them to summarize the program for which they are requesting funds. Ms. Miller stated that currently they provide five sports to over 70 athletes. The DeMon Dynamos is totally voluMeer-based. They participate in local area competitions. Ms. Rheault asked how their program would change the community. Ms. Miller stated that it helps the athletes become more productive citizens. They learn "real life" skills including working as a team and interacting with their peers. Stress and anger management are also part of what they learn while in the program. Ms. Miller stated that often these athletes are told only what they can't do. The Denton Dynamos is their chance to be successful at something. Ms. Miller also noted it helps in community acceptance. Friendships often develop and employers see these individuals and often hire them. Ms. Kelly asked what they would do if they received less than the requested amouM of funding. Ms. Miller noted that they would be appreciative of any amount and would disperse it where they could to help the athletes participate in as many eveMs as possible. Ms. Kelly noted the bank statemeMs indicated that their deposits and checks were only aboM half of what they showed in the budget. She felt this indicated that a lot of cash did not go to the bank and some expenditures were not paid from the bank account. Ms. Kelly noted that this would mean they were operating on cash basis. Ms. Miller stated that this was not the case. She noted that the state games were a major part of their costs. Ms. Kelly stated there is no audit and it appears there is no eMity that oversees the organization. Ms. Miller said the area Special Olympics and the State reviews their finances. Dr. Duvall asked why they included the statemeMs in their application. Ms. Miller responded that she felt that was the best way to provide the requested information. Ms. Hughes asked if they received feedback from the State. Ms. Miller stated that they did not. Ms. Page 86 Hughes indicated that something back from the State would be helpful. Mr. Leal stated that they don't have a formal funding source. If they receive City of Demon funds, then would be required to have an audit. Ms. Dansby stated that at monthly meetings they are provided with a balance sheet and this could be included in future applications. Mr. Williams stated that he was concerned about the lack of diversity in the programs and on the board of directors. Ms. Miller stated that they do not turn anyone away who wants to participate or serve on the board. Mr. Williams indicated he felt this was not a sufficiem response to the lack of diversity. Ms. Miller stated that most of what they do is fundraising and have little time for anything else. Mr. Williams read the statistics from their application and stated that this concerns him very much. Mr. Leal added that there are some cultural barriers that exist. Mr. Williams stated he felt this was a myth. Ms. Rheault disagreed. Ms. Ross offered to put information in the Community Development newsletter regarding the program. It was noted that the newsletter were out to members of the minority community. Kristen Hardy-Price, Executive Director, of Fairhaven Retirement Home introduced herself. James McDade asked Ms. Hardy-Price to summarize the program for which they are requesting funds. Ms. Hardy-Price stated that the homemaker program provides housekeeping services for residems. She stated that the service includes housekeeping tasks such as vacuuming, sweeping, cleaning toilets and cleaning showers. Ms. Hardy-Price noted that the average residem's age at Fairhaven is 84. The service helps to extend the client's stay in an independent living situation. Ms. Rheault asked how their program would change the community. Ms. Hardy-Price stated that the program postpones the need for citizens to go imo a nursing home, imo their child's home or other care situations. Ms. Kelly asked what they would do if they received less than the requested amoum of funding. Ms. Hardy-Price stated they would consider increasing the residem's portion. Curremly the residem pays only $1.75 per hour. They may also solicit funding from other sources to get the additional funding. Ms. Kelly explained why that question is asked. Mr. Williams stated that he noted that they have mostly whites at the facility, no blacks and one Hispanic. He commemed that the projection was to have two blacks in the coming year. He asked why the residems didn't match the minority population in the City. Ms. Hardy-Price noted that they have an affirmative marketing plan that they carry out. She stated that she has observed that often African Americans want to live where there are other African Americans live. She noted that the location is not conducive to attracting minority residems because it is in a predominamly white neighborhood and is quite a distance from the predominately minority areas of Demon. She added that there is not much Fairhaven can do about their location. Ms. Hardy-Price stated that they would continue to work to attract minorities to the facility. Mr. Williams asked if they have gone to the African-American churches. Ms. Hardy-Price indicated that they have. This is part of their marketing plan. She stated that they do and that they have an African American on the board. Dan Leal asked if she asked people from other ethnic groups to tour the facility. Ms. Hardy-Price stated that they have had a few walking tours. There is probably a greater percemage of Hispanics on these walking tours. Ms. Ross asked what was the racial make-up of Fairoaks. Ms. Hardy-Price indicated it was more diverse. Ms. Ross commented that this was part of the reason Fairoaks was constructed. They felt its proximity to the minority community would make it more attractive to minorities. Ms. Hardy- Price also noted that Fairoaks was a 202 project that meam all the rems were subsidized based on a household income. Only some of the rems at Fairhaven are subsidized. Fairhaven is for people who need more assistance. Fairoaks does not provide all of the services that are available at Fairhaven. Ms. Bounds asked if they were located on North Bell. Ms. Hardy-Price stated that they were. Ms. Page 87 Bounds asked if both Fairhaven and Fairoaks were the same type of facility. Ms. Hardy-Price explained that Fairhaven is all under one roof and Fairoaks is primarily one-bedroom apartmems. Ms. Kelly asked if they had considered bringing a group from a black church to get familiar with the facility. Ms. Hardy-Price said that Betty Kimble has visited and they have worked with her to try to bridge the diversity gap. Mr. Williams suggested that she work with the local African American churches. Mr. McDade asked if Pecan Place was a part of Fairhaven. Ms. Hardy-Price stated that it was part of the DeNon Housing Authority. Ms. Tomboulian asked the cost of the facilities. Ms. Hardy-Price stated that the larger room is $792 per month and this includes three meals per day and utilities. The smaller room is $744 per month also including meals and utilities. It was noted that they do not provide nursing care. Ms. Hardy-Price stated that Fairhaven is considering turning some of the units to assisted living. Patrice Capan, Executive Director of Family Health Care, introduced herself. James McDade asked her to summarize the program for which they are requesting funds. Ms. Capan stated that they have been in service for 14 years. She stated that the program would serve non-Medicaid eligible women who need prenatal care. She noted that they are usually not US citizens. Financially, these women would qualify for Medicaid but they are not eligible. These women would not be able to obtain prenatal care without these services. Family Health Care subcomracts with North Texas Community Clinics. NTCC is accepting reduced fees. NTCC has four nurse practitioners that are bilingual and culturally sensitive to these women that are mostly Hispanic. There is a bilingual social worker that does initial imake. The bilingual social worker checks to determine whether there are domestic violence issues. Transportation is an issue for many of the women so the clinic is on the trolley route. Women are able to do their lab and their sonogram on site. Ms. Capan stated that they try to minimize the hassle for the women so they will comply with the medications and the visits. Approximately 120 women from the City of Demon received care from this program last year. Ms. Capan stated that last year was the first year they were able to continue the program for the entire year. High-risk cliems are able to see Dr. Morris. The funds they are requesting are only for prenatal care. Ms. Capan noted that the babies are US citizens. Ms. Rheault asked how their program would change the community. Ms. Capan stated that the program would improve the health of the community. She gave statistics on the improvemem in low birth weight babies in DeNon County. A baby in ICU costs approximately $200,000 in care. Ms. Kelly thanked Ms. Capan for not asking for an increase. Ms. Kelly asked what they would do if they received less than the requested amoum of funding. Ms. Capan stated that they would just have to watch the money carefully. The money would be limited and the co pay helps offset the cost. They may have to curtail imake imo the program. Ms. Kelly asked when the clinic cease to be a part of Columbia Health. Ms. Capan responded that this was in January 2001. In October of last year, Dr. Morris became the sole owner of North Texas Community Clinic. She noted that this had been wonderful! Ms. Brantley stated that she felt this was the biggest bargain that the City gets. Joyce Rogers, Executive Director, and Melissa Masters, the four-year old teacher from Fred Moore Day Nursery School imroduced themselves. They serve children six weeks to five years old. To be eligible for childcare services, parems must be working and/or going to school. Fred Moore serves three meals a day. Ms. Rogers also noted that they provide a full day of balanced activities. Ms. Rogers noted they have five funding sources. They are on the governmem food program. They also have parem fees that support the agency. Ms. Rheault asked what difference the service makes in Page 88 the community. Ms. Rogers stated that Fred Moore provides quality childcare at a reduced cost. Some of the children would not be in very safe situations if they were not in the program. Ms Kelly asked if the City were not able to fund the eNire program what would they do. Ms. Rogers stated that they would work more on fund raising. She also stated that they could increase enrollmeN but noted that this measure would be a last resort. Mr. McDade asked if they are still on a sliding scale fee schedule. Ms. Rogers indicated that they are and the fee schedule was based on household size. Mr. Leal asked her to explain how DeNon City County Day School and Fred Moore Day Nursery School differ. Ms. Rogers stated that the main difference is the ages served. DeNon City County Day School serves children from two years of age to five and a half. Fred Moore Day Nursery School provides the only infaN care that is available on a sliding scale. Ms. Tomboulian asked about their fee for infaN care. Ms. Rogers and Ms. Masters stated that it is $78.00 per week. Mr. McDade asked if there was a waiting list. Ms. Rogers indicated that they have over 100 on their infant care waiting list. Ms. Kelly asked what the infaN capacity was. Ms. Rogers stated that they just moved to 10 and are working on 12. Ms. Bounds asked if prospective pareNs get on the waiting list before they're even expecting. Ms. Rogers stated that is what she encourages. Ms. Masters stated that the babies stay with the school as they move up in age. Dr. Duvall asked if they were going to expand their capacity. Ms Rogers stated that this would require adding to the building but that they have plenty of property to do this. Ms. Rogers stated that they are lucky in that they have staff members who have been there for several years. The cook has been there for more than 30 years. Lauren Johnson and Cassandra Smith of the Girl Scouts introduced themselves. James McDade asked them to summarize the program for which they are requesting funds. Ms. Johnson stated that the "Decisions for Your Life/Baby Think it Over" is a program that will be conducted in the community ceNers showing girls the responsibility of taking care of a baby if they have one at an early age. She stated that it was a teen pregnancy prevention program. Ms. Rheault asked how their program would change the community. Ms. Johnson stated that the have done a lot of research regarding teen pregnancy. Teen pregnancy costs on a national basis are very high. She noted that they feel this program can assist in lowering the rate of teenage pregnancies at a local level. Ms. Kelly asked what they would do if they received less than the requested amouN of funding. Ms. Johnson stated that the request would serve 200 girls. This would pay for the facility and the equipmeN. There are differeN kinds of teaching aids (babies) available and they are very expensive. They have looked iNo other funding sources. Ms Hughes asks how you get a girl iNerested in participating. Ms. Smith stated that once they see the babies they are interested in how they work. Ms. Johnson added that they have done these in school districts. This program will be carried out in the community ceNers. Dr. Duvall asked if they have these babies on display so that the committee members could see them. He also asked if the girls take them home. Ms. Johnson indicated that the girls do sometimes take them home. Ms. Tomboulian asked if the program would go out to the high schools. Ms. Johnson said in the past they have taken them out to the schools. Ms. Tomboulian asked if they were relocating. Ms. Johnson stated that they have done the program briefly at Owsley and MLK and that wish to do it on a larger scale. Mr. Leal asked if they tracked the success rate in other areas and/or did they do a follow-up. Ms. Johnson stated that this is why they wan to do the program here in Denton. They feel they can track the success better. Ms. Ross asked why they haven't been able to track outcomes in Sherman. Ms. Smith indicated staff changes made it a problem. Mr. Williams stated that they targeted 200 girls and asked why they weren't targeting Page 89 boys. He also asked what type of marketing plan they have. Ms. Smith stated that since they use the community centers, they know the members of the community. They also use newspapers and flyers. They target girls because they are the Girl Scouts. Mr. McDade stated that the Girl Scouts are in a five-county area. Mr. Williams explained why he felt they should target boys. Ms. Tomboulian stated that in their materials do they offer girls information regarding how to handle boys who want an inappropriate relationship. They indicated that they did have this type of material. Ms. Bounds asked if there is a $7.00 registration fee. Ms Johnson said it would be underwritten under this program. Lance Johnson, Executive Director, and Zachary Tucker, Board President, for HelpNET, introduced themselves. James McDade asked them to summarize the program for which they are requesting funds. Mr. Johnson indicated that they are requesting funding for two programs. The first one is the central application point. HelpNET has increased services by 213% over the past year. They are also requesting funding for the Homeless Management Information System (HMIS). Mr. Johnson noted that it was a requirement for CDBG funds and other funding sources to assist the homeless. He stated the HMIS is an extension of what they're doing now, but it will take a lot more time to fully develop the system. Ms. Rheault asked how their program would change the community. Mr. Johnson responded that the central application point is a big help to clients and to agencies. Clients only have call one place to get assistance. They can also be upfront with clients regarding services that are available. HelpNET attempts to assist these families in other areas to free up their cash. The HMIS will make a difference in terms of hard dollars. Mr. Johnson stated that more federal dollars would come into Denton through the SuperNOFA (homeless funding from HUD) and other grants. Ms. Kelly noted that they were asking for quite an increase. Ms. Kelly asked what they would do if they received less than the requested amount of funding. Mr. Johnson stated that they would have to do the best they can with what they get. He noted that the work that they do also benefits the agencies. Emergency assistance agencies do not take near the volume of phone calls that they used to take. Many of the agencies would need to hire an additional staff member to answer the phone. Mr. Johnson indicated that HelpNET's staff time is stretched as far as it can go. Other funds are pretty scarce. Ms. Kelly noted that they did not submit an audit. Mr. Johnson responded that they are a small agency with a small budget, and they do an audit every other year. He stated that they were in the process of putting together an audit for 2001 and that the audits for 2001 and 2002 would probably be done together. Mr. Williams stated that he looked at his resume and he asked if this is a religious-based program. Mr. Johnson stated it was not, but the agency does receive funds from churches. Mr. Johnson explained that the program has grown out of an old program from the Denton Baptist Association and that Denton Baptist Association provides the office space. Ms. Kelly asked if they were a United Way affiliate. Mr. Johnson stated that they are only now eligible to apply. Dr. Duvall indicated to Mr. Johnson that some small agencies get a free audit done by classes from the universities. Members discussed the homeless count that is to take place tomorrow night. Barbara Atkins, Executive Director of HOPE Inc., introduced herself. James McDade asked her to summarize the program for which HOPE is requesting funds. Ms. Atkins stated that the purpose of HOPE is to assist families that are homeless or potentially homeless. She stated that the funding requested would support two of their programs, the 30-90 day assistance program and the 12-24 month transitional housing program. Ms. Atkins discussed how the program helps families move Page 90 toward self-reliance. She stated that the case management approach is very intensive. HOPE is taking 100-150 calls per month for families that feel they're moving toward a housing crisis. They provide education in life skills, employment, budgeting, and provide financial assistance in the form of rent, childcare, etc. Ms. Rheault asked how their program would change the community. Ms. Atkins stated that they are working in a cooperative relationship with Friends of the Family and the Denton Affordable Housing Corporation (DAHC). A family in crisis now has another option rather than returning to an abusive situation after their short-term shelter time is over. This assistance will allow these families to get back to independent living. Ms. Kelly asked what they would do if they received less than the requested amount of funding. Ms. Atkins stated that the last survey in the City of Denton showed that many households were paying more than 50% of their income in rent. This means they are at risk ofhomelessness. She also stated that this is a high priority area in the City's Continuum of Care. Peggy Kelly asked what would they do if they received less funding than requested. Ms. Atkins indicated that they asked for a little bit of an increase because they feel it is necessary for the committee to see that there has been an increase in the need in this area. If they receive decreased funding it will mean decreased funding in other areas. She stated that HOPE's grants require match and the City' s money is used as match and as a show of community support. Ms. Atkins stated that the cooperative agreement with DAHC helps them to spend less money on housing. Mr. Williams stated that the ethnic breakdown of the clients was missing. Dan Leal noted that it was missing and that he will get that information to the committee. He noted that they served 44 persons in the 30-90 day program. Of the 44 persons, 27 were Caucasian, 6 were Hispanic and nine were African-American. Mr. Leal also gave the demographic information for the Transitional Housing Program. Mr. Williams asked about the marketing. Ms. Atkins stated that they are in cooperation with those that refer - DHA, HelpNET, etc. They work with the school system and with employers and a large number of landlords. Jorge Urbina, Board member, and Condell Garden, Executive Director of Interfaith Ministries, introduced themselves. James McDade asked them to summarize the program for which they are requesting funds. Ms. Garden stated that they are requesting funds for the emergency utility fund. This goes to families who have experienced a crisis situation where they are unable to pay their monthly utility bill. The program sets up a priority system and first priority goes to those that are elderly, on some type of medical life support and those with small children in their household. She noted that this is not a program geared to people who are chronically unable to pay their bills. Ms. Garden stated that the households may only ask for assistance once every six months. If they ask every six months it may be considered a chronic problem. Ms. Garden indicated that they work closely with HelpNET. HelpNET sets the appointments and does the initial screening of clients. She noted that they are able to assist people in one to two days. Interfaith is proud of this response time. Ms. Rheault asked how their program would change the community. Ms. Garden stated that last year Interfaith kept 1635 families from having their utilities cut off. She added that they also look at the other things going on in the family. They attempt to help them in those areas as well. They focus on lifestyle choices and try to help each family make the right choices. Ms. Garden said that this gives the program a tremendous impact on the community. Ms. Garden gave an example of a woman assisted by the agency. Mr. Urbina mentioned their coordination with the City's Plus One program. Ms. Kelly asked what they would do if they received less than the requested amount of funding. Ms. Garden stated they might have to assist fewer people or give a smaller amount of assistance. Dr. Duvall asked if the Plus One was from the City and TXU Gas. Ms. Garden stated Page 91 they only get money from the City not CoServe or TXU. Mr. Urbina mentioned some problems receiving money from the City's Plus One fund but added that these were being resolved. Members discussed setting up a meeting to develop their recommendations for funding. Members agreed to meet on March 18. Mr. Leal asked members to turn in their scoring sheets by February 25 at 5:00 pm. Ms. Hughes commented that the committee needed a better process to guide them in the development of funding recommendations. She noted that all the agencies requesting funds had excellent programs, and she was uncertain where they would cut. Committee members agreed that all the programs would benefit the community and that the decision regarding which programs should not be funded will be difficult. Members agreed that they would use existing scoring sheets to assist in developing their recommendations. Ms. Tomboulian stated that the committee should recommend increasing the funding in the budget. She noted that it had not increased in the last few years. Ms. Ross pointed out that the Human Services budget had increased significantly in the last two years and that they would bring that information for the committee. The meeting adjourned at 9:15 pm. Page 92 Official Minutes Human Services Advisory Committee February 18, 2002 Members Presem: Elinor Hughes, Peggy Kelly, James McDade, Dr. Wallace Duvall- Chair, Dr. Bettye Myers, Carol Bramley, Carol Bounds, Betty Tomboulian. Members Absem with Notification: Carl Williams, Teri Rheault Staff Present: Dan Leal, Barbara Ross Ken Washington, center supervisor, and Robbie Johnson, recreation specialist, of the MLK Center's Kings' Kids Day Kamp program imroduced themselves. Carol Bramley asked if they would summarize the program for which they are requesting funds. Ms. Johnson stated that the Kings' Kids Day Kamp that has been active since 1994. She stated that the summer camp serve approximately 80 kids, ages six to 11. The kids are divided imo four groups of 20 kids. One coordinator and four leaders staff the program. The camp begins the week school gets out to the second week in August and lasts approximately eleven weeks. Ms. Johnson commented that the kids take field trips to Dallas, Ft Worth, and Arlington. Campers also take field trips to the library and to UNT for cultural activities. She noted that parents pay for the field trips. Ms. Johnson stated that funding from the Community Developmem Block Gram is used primarily for personnel and van remal. Ms. Hughes asked what difference this program would make in the community. Ms. Johnson said it is the only program in the community. Ms. Johnson stated that last year the YMCA was there, but Kings Kids still served more children. Without the program at the MLK Cemer, kids would be either at home or on the street. Mr. Washington said the Boys and Girls Clubs would not be providing services in the area this summer. He projects an increase in the number of kids attempting to enroll in the Kings Kids program. Dr. Myers asked if the committee couldn't recommend funding for the emire amoum what would their priorities be. Ms. Johnson said that personnel would be the top priority and van remals are the second. She noted that parems might have to pay more for the service than in the past. Ms. Johnson stated that the reason they were requesting an increase in funding is because personnel costs have risen and also the costs of reining vans has increased. Dr. Myers asked why the MLK staff felt that the City had not funded this program through a supplememal budget request in the past. Ms. Johnson stated that this was before her time. Dr. Myers asked why this program wouldn't be a budget priority. Mr. Washington stated that supplemental packages can be submitted, but it all goes to the budget office. If they feel it is a priority, it might be funded. He stated you submit the package, and it is out of your hands. Ms. Hughes asked if City Council has input imo priorities. Ms. Ross noted that in the past they have prioritized and would use that information when looking at supplememal packages. She added that she wasn't sure how that worked. Dr.. Myers thought that it was interesting that they don't even qualify as a priority to get vans from PARD. Ms. Johnson explained that the other City camps have many more children than MLK, and Kings' Kids has had the funds from the grant to pay for vans. Ms. Kelly asked what they pay per week. Ms. Johnson stated that they don't pay by the week but Page 93 pay $30, $50, up to $125 for the emire summer. Mr. Washington stated that to keep quality personnel they must have competitive rates with those of other camps in the area and those of other cities. Ms. Hughes asked how much they are paying staff. Ms. Johnson stated that the camp coordinator is at $9.31 and camp leaders get $8.40 per hour. Dr. Myers asked why PARD is not paying for the drug testing. Ms. Johnson stated that since the drug testing is for this program, it has to come out of this budget. Mr. McDade asked if they had approached the churches in the neighborhood to see if they could rem or borrow the church vans. Ms. Johnson stated they had not asked. Mr. Washington stated that there was probably some liability issues there that the City would not be able to cover. Penny Wootton and Sharon Vaughn of Living Choices of North Texas imroduced themselves. Ms. Bramley asked if they would summarize the program for which they were requesting funds. Ms. Wootton stated that the program was to be a resource in the community that will facilitate in the presemation of abstinence curriculum in the school district. Ms. Wootton stated that they felt like the best lifestyle was abstinence umil marriage. It is taught through eight lessons in the public classroom. Ms. Hughes asked what impact their program will have on the community. Ms. Wootton indicated that this should be seen in reduced teen pregnancy rates and health problems related to sexually transmitted diseases. Dr. Myers asked what their priority would be if they did not receive the emire amoum requested. Ms. Vaughn and Ms. Wootton indicated that the priority would be funding the workbooks. The grant request includes assistance with paying the salary of the program coordinator. Ms. Vaughn indicated that the first year they were given $10,000 from a gram to pay for the workbooks but that would not be received again. Volumeer presemers are used in the classroom. Dr. Myers asked why the school district was not paying this cost. Ms. Vaughn stated that Theresa Gram's budget for health programs for the emire school district was $10,000. Ms. Kelly asked if it was a pilot program last year and what were the results. Ms. Wootton stated that it was too early to tell, but that the kid's minds are being changed. Ms. Wootton indicated that they are flexible and will work with the schools on scheduling. Ms. Bounds asked if they are in any other schools besides Strickland. Ms. Wooten stated that they are at all campuses including the high schools. Dr Myers asked what classes the curriculum is being taught. Ms. Wootton indicated that at the high schools it is taught in the health classes and at the middle school it is in the 7th Grade Science classes. Dr. Myers asked about follow-ups to see if past groups have changed their attitudes. Ms. Vaughn indicated that they have not but could do that after this year. Ms. Hughes asked if they had applied for other grams. Ms. Wootton memioned a gram they had applied for. Ms. Hughes memioned the Flow Foundation. Ms. Kelly stated that they appear to be expecting that comributions and special evem revenues are going to increase significantly. She is asking how they would accomplish this. Ms. Vaughn stated that this year they have exceeded their budget, and these funds come from individual donors. Greg Hedges and Peggy Heinkel-Wolfe of the Owsley Community School introduced themselves. Carol Bramley asked them to summarize the program for which they are requesting funds. Mr. Hedges stated that the funding would provide a part-time staff person to manage programming. The rest is for a specific person to assist with the music and language programs. He stated that the music programs are designed for 4th and 5th graders. It is a preparation program for the band program in the public schools. Mr. Hedges noted that there were a lot of kids falling through the cracks in the school programs without instruments, music lessons, etc. Two children have been in the mainstream Page 94 program for two years, and they've been very successful. AmeriCorps Vista has funded the program coordinator position and that funding will not cominue this year. This is why they are applying for these funds. Ms. Hughes asked how the funding given to the Owsley Community Cemer impacts the community. Mr. Hedges noted that the cemer is already there. He stated that they provide literacy classes for adults at no cost. Many of the children could not get assistance from their parents because some are illiterate. Two classes have graduated from their GED and ESL instruction. Mr. Hedges indicated that they hope a better lifestyle will be created for these families and that the children will be better served by the education system. The Owsley Community School programs have made a drastic change already, but funding is needed to cominue the program. He stated that the Owsley Community School is a fairly new agency with a 501C3 but that they have been doing these programs since 1998. Dr. Myers asked if the committee couldn't fund the total amount requested, how would they prioritize the request. Mr. Hedges stated that the most important was the staff person. He noted he was unsure where he would come up with the funding for the staff person if they do not receive the gram. He feels that he will be able to come up with permanem funding in the near future and that this is a one-time request. Dr. Duvall asked what age they served. Dr. Duvall said he thought it was 4th and 5th graders. Mr. Hedges stated that that was the music program but that they also provide literacy classes for adults. Dr. Duvall pointed out that UNT provides the music program. Mr. Hedges stated that UNT students come and help teach the program, but they do not manage the program. Ms. Heinkel-Wolfe noted that this was indeed the case. She stated that she was with the University when the program just began but that UNT was not interested in maintaining an inventory of instruments. She said it was a labor of love, but the idea was that the program belongs in the community. Dr. Duvall asked if DISD provides free instruments. Mr. Hedges indicated that they do not. Ms. Tomboulian stated that the students would have to rent the instrument. Dr. Myers commented on their success in the area and asked how they feel about all the other organizations that want to provide services in Owsley. Mr. Hedges stated that the networking is great, and you really get more bang for your buck if you have several organizations providing assistance. Ms. Kelly asked if they run their adult programs in the summer. Mr. Hedges indicated that both the children's and adult programs run year round. Cirilo Pedroza, manager of Denia Recreation Cemer imroduced himself. Carol Brantley asked him to summarize the program for which they are requesting funds. Mr. Pedroza stated that he has been with the City for ten years and on his first day, the Owsley Services Coalition held a block party in the Owsley neighborhood. He stated that his responsibility in helping to provide services to the area was to develop the summer playground program. It was a response to the need in the area. He noted that this is a low to very-low income neighborhood. The families would not be able to afford the City programs. He stated that he came to ask for CDBG funds in 1992 and received funds to do the program. Mr. Pedroza stated that the program is an 11-week summer playground program for kids ages six to 12. He noted they have a playground supervisor and two leaders who work with the program. Mr. Pedroza stated that they use the Owsley Community Cemer in the morning to do activities, arts and crafts, etc. The program also participates in the free lunch program. In the afternoon, program staff takes them on field trips to get them out of the neighborhood. Mr. Pedroza stated that the funds are partially used to rent vans to take these children places. Mr. Pedroza handed out some budget information to the committee members. He noted that last year the Boys and Girls Club provided three staff members, and they had a van so they did not have to rem one. Without the Boys and Girls Club, there would have been some problems. With reduced funding, Page 95 they would only be able to do activities in the neighborhood. On Fridays the participaNs wen to the movies or ice-skating or to do some activity. He noted that last summer they served 89 kids. He commeNed that they might be able to do a half-day program. Mr. Pedroza stated that the kids would have nothing to do for the remainder of the day. He noted that sometimes the kids get iNo trouble when they are unattended. Often single mothers leave the older kids to watch the younger kids. If it were a half-day program, the kids would be on their own for the rest of the day. Ms. Kelly asked if more kids come only for special evens. Mr. Pedroza indicated that they must attend a certain number of days to participate in the field trip. He noted that with the building available they make them stay unless they have parent permission to let them leave early. Dr. Myers asked where the lunch comes from. Mr. Pedroza stated that Parks and Recreation runs the summer lunch program. Ms. Kelly complimeNed the program and how it has improved. Ms. Myers asked if they have ever asked the school district to use their vans. Mr. Pedroza noted that they would have to pay a driver to sit in the vehicle while the kids did their activities. Dr. Myers asked if they have ever considered applying for a van from the Benefit League. Mr. Pedroza indicated they would have to look to Greg Hedges to do something like that since the Owsley Community School has a 501C3 application. Ms. Kelly asked about City funds that are used for the program. Mr. Pedroza stated that the City doesn't charge for swimming, and they also pay for some staff salaries that aren't reimbursed by the graN. Missy Dickenson, assistaN director of REACH of Demon, introduced herself. Carol Bramley asked her to summarize the program for which the agency was requesting funds. Ms. Dickenson stated that it is the "AdjustmeN to Disability Program" for which they are requesting funds. She stated that the program is a support group that is facilitated by a licensed professional counselor. The support group is held twice a month. Ms. Dickenson provided some information on the qualifications of the counselor who would be handling the sessions. Ms. Hughes asked how Demon would be differeN as a result of the programming. Ms. Dickenson stated that they've done this for about three years. Some participaNs have coNinually attended it, and some have only attended for a while. The program helps these individuals to become independeN. Ms. Dickenson noted that the participaN share a lot of the same frustrations. They are able to go out iNo the community, and show people that they can do these activities. They can go out alone or with family and no longer feel that it is an embarrassmeN. She gave an example of someone who wen shopping on the square and even helped to educate a shop owner regarding a change to the aisle that would allow them to get around better. Ms. Dickenson stated that Demon is getting used to seeing persons with disabilities in the community. Dr. Myers asked how they would prioritize if the City could not provide the amouN of funds requested. Ms. Dickenson stated that the fees go directly to the counselor. He charges $200 per hour. She noted that it was importaN to have two sessions per month any gains may be lost if the sessions are not on a regular basis. Dr. Myers asked if all 17 come for both monthly sessions. Ms. Dickenson stated that they usually do. Dr. Duvall asked if they were group or individual sessions. Ms. Dickenson stated that they are group. Dr. Duvall asked if the facilitator has an MS or MD. Ms. Dickenson replied that he has a MS. Dr. Myers asked why they haven't worked through TWU. Ms. Dickenson stated that they did not have a good response from TWU when they asked for assistance approximately two years ago. Ms. Myers stated that she should coNinue to come back because staff has changed, and she might get a differeN answer. Members discussed whether REACH could go to City Council directly for funding as they did this past year. They also discussed the $200 fee that goes to the counselor/facilitator. Page 96 Fran Moore and Salty Rishel of the Demon Family Resource Cemer imroduced themselves. Ms. Bramley asked them to summarize the program for which they are requesting funds. Ms. Moore stated that they are asking for $10,000 to help with funding for the program coordinator' s position. This individual coordinates programming and oversight of every program that DFRC has. Funds are leveraged through the use of the work this individual does in the amoum of $28,803 (IRS value). Ms. Hughes asked how Demon is better as a result of DFRC being here. Ms. Moore indicated that she has seen so many families who have benefited from the programming. She memioned specifically expectam mothers who get information on community resources that are available to them. Fifty women have graduated from the prenatal program. She noted the advamages that these women have as a result of participating in the program. Ms. Moore stated that they provide support groups after the delivery. Dr. Myers asked what they would do if they did not get all the requested funding. Mr. Rischel stated that they were trying to turn this into a full-time position but if they didn't get funding, it could cominue to be part-time. Ms. Kelly asked aborn the "other grams" listed on DFRC's budget. Ms. Moore provided information on funding sources. Ms Kelly asked if they received the projected $26,000 in contribmions. Ms. Moore stated that they did, and she reviewed the sources of that funding. Dr. Myers asked what they amicipate in terms of growth. Ms. Moore noted that last year they served approximately 900 persons. It already looks as if they will be serving 100 persons per month so, 1200 per year. In terms of staff she noted that they had been very lucky to have bilingual persons available. Ms. Kelly stated that there was no audit. Ms. Moore indicated that they have reviews but not an audit and added that the reason for that is money. Dr. Myers asked how they didn't have to have one with United Way. Ms. Moore stated it was because their budget was so small. Dr. Myers suggested that they ask the United Way for funds to do an audit. Members thanked the presemers. Mr. Rishel thanked the committee. Mr. Leal provided some information on Adult Day Care's budget. He also noted that HOPE, Inc. packet did not include some pages that belonged in their applications. Mr. Leal stated that St. Andrews Church also provided some additional information. He noted that the accountam's review letter for the Denton Family Resource Center was also in the committee packets. Mary Gwinner and Sharon Sampson, represematives from Riding Unlimited introduced themselves. Carol Brantley asked them to summarize the program. Ms. Gwinner stated that they were requesting scholarships for three riders to participate in equine therapy. She explained "equine therapy." Riders range from age two to age 81 with a variety of disabilities and a variety of needs. This program serves them recreationally, socially, and educationally. They learn sequencing and memory skills. Ms. Gwinner noted an autistic rider that has been riding for nine months and is now making eye comact and is communicating (not speaking) with his volumeers. Ms. Sampson stated that Riding Unlimited provides a sliding scale fee structure. Ms. Hughes asked what difference this program will make in the community. Ms. Sampson stated that it helps to improve the participant's imeraction with their siblings and other members of the family. Now they have their own activity, and they are also getting a physical benefit. This makes a person more capable of acting independemly. Many parems have expressed this. It also helps them relate to their peers at school. Dr. Myers asked if they couldn't get the entire amount what their priority is. Ms. Sampson stated that there are several phases of funding that they could divide this imo. Ms. Bounds asked aborn the amoum of the riding fee. Ms. Sampson stated it was $275 for 12 weeks. Page 97 Diana Corona and Pat Moore of RSVP introduced themselves. Ms. Bramley asked the representatives to summarize their program. Ms. Corona stated that RSVP provides support to area nonprofits and link 55 and over volunteers to specific requests from local agencies. She noted that they have about 900 volunteers servicing 89 agencies. She commented that the Denton volunteers provided 70,618 hours of service. Ms. Corona explained the impact of these services in the City of Denton. 56% of the total volunteer base - 511 volunteers are in the City of Denton. The volunteers provide a substantial savings to the City of Denton. She stated that they are promoting Denton as a community that takes great pride and care of its residents. Ms. Corona stated that they have some programs that they carry out independently of other organizations. She mentioned the Elm Fork Education Cemer, Community Leadership Seminar and the latest one is "Rockin Readers." Under "Rockin Readers" volunteers go into the schools and read to kindergarten and first graders. Ms. Moore stated that she was able to put a human touch on the program. Ms. Moore talked about Dorothy Damico and her experience with a young reader. She also talked about Ethylen Davis who is helping TWU modernize the DBase of their alumni records. Ms. Hughes stated that they appeared to have answered the second question already but they could make additional commems. Ms. Corona commemed that she did not know what the city would do without volumeers. Dr. Myers asked what the organization would do if they received less money than requested. Ms. Corona stated that she feels that sometimes that have underestimated their impact on the community. She noted that they had been at the previous dollar amount for some time. Ms. Corona stated that this is why she brought Ms. Moore so that they could see the person that works with all these people. She is doing the job of two staff people. They will cominue their efforts to fund that position but would like the full amount. Dr. Myers stated that they should be commended for what they have done in the community. Dr. Myers suggested that they use the "community" of Demon rather than the City of Demon because some people see that as city govemmem. Debbie Webb and Kathy Davis, representing New Generation Child Care, were the next presenters. Ms. Brantley asked the representatives to summarize their program. Ms. Webb stated that the program is for working parents and their children. She noted that they would also provide before and after school care. They will provide tutorial assistance for the children. She noted that they are trying to get the children into a warm environment. Ms. Davis stated that they want to address the fact that no child is too young to learn. Ms. Hughes asked what impact the program will have in the area. Ms. Webb stated it would keep the children off the street. Dr. Myers asked what the organization will do if they received less money than requested. Ms. Webb stated that any amount of money would help provide quality staff. Ms. Webb indicated that they would serve children from 18 months to 12 years old. Dr. Myers asked how they would interface with Fred Moore or Denton City County Day Care. Ms. Webb stated that she was not familiar with those organizations. Ms. Tomboulian asked if they would be set up on a sliding scale fee. Ms. Webb indicated that they would but that all parents would pay something. Ms. Tomboulian also asked about Fred Moore and City County's services. Ms. Webb indicated that the other day cares are not meeting all the needs of the community. Ms. Davis indicated that Fred Moore had a lengthy waiting list. Dr. Duvall asked if they currently had a license. Ms. Webb stated that they are in the process of obtaining a license. Dr. Duvall asked how they are related to St. Andrew's Church. Ms. Webb indicated that the day care is in the church, but they will be paying rent at $3,500 per month. Dr. Duvall asked if they've talked with the United Way about their day care initiative. Ms. Webb indicated that the in home day cares sponsored by the United Way have such a low provider to child ratio that it is not making a big impact on the community. Ms. Hughes indicated that $3,500 per month in rent seemed to be a significant cost. Ms. Webb indicated that they would be using the church utilities. Ms. Ross asked if the church would consider a break on the rent for the first two years to help them get started. Ms. Davis and Ms. Webb indicated that they were unsure Page 98 as to that possibility. Dr. Myers asked if they were members of the church. They indicated that they were. Members thanked the presenters. Captain Glenn Queener of the Salvation Army iMroduced himself. Ms. Brantley asked him to summarize the program for which the agency was requesting funds. Captain Queener stated that they provide the only true homeless shelter in Denton County. He noted that even some persons in Dallas County come to their shelter because they do such a good job and it is such a nice shelter. In August 2001, the agency provided 330 total nights of care. In January 2002, they provided 779 nights of care. This indicates a substaMial increase in the use of the shelter. Captain Queener stated that the receM homeless count showed that within the City limits of DeMon there were 130 homeless. Of those, 57 needed emergency shelter. He noted that they sometimes have to put people on mats, bM it is better than sleeping oMside. The funds they are requesting will help pay the shelter director and their cook. He noted that it would not totally fund the salaries but would help. Captain Queener described the duties of the shelter manager and the cook. Captain Queener described the types of services provided and what they require of those who use the shelter. Ms. Hughes asked how the program impacts the community. Captain Queener stated that the immediate impact is that they will have a place to stay and some help so they can feel good aboM themselves. He noted that the Salvation Army begins trying to build their self-esteem. In the long term, people will become a contribMing member of society because they get this assistance. More people will be able to reach self-sufficiency. Dr. Myers asked what the organization will do if they received less money than requested. Captain Queener stated that the most important would be to continue to fund the shelter manager. Ms. Kelly asked if they have people who come in for the evening meal bM do not stay. Captain Queener said they do. He noted that their cook is very good. The cook is able to prepare good meals for 55 cents a plate. Dr. Myers asked him to talk about the transitional shelter program. Captain Queener stated that it takes clients from the shelter to an apartment in less than 90 days. He provided some additional information aboM the transitional program, which started just a few months ago. The Salvation Army sets aside a few beds for transitional shelter clients. Pearl Jones of the Sickle Cell Disease Association iMroduced herself. Ms. BraMley asked her to summarize the program. Ms. Jones stated that they have decided not to concentrate on a single program. They call these community oMreach programs and have formulated the program iMo three components - public education, screening and testing, and genetic counseling. Ms. Jones stated that they have to give people education before they will understand why they need genetic counseling. Ms. Jones stated then they move to screening and testing. The basic questions they ask is "do you know your sickle cell status?" Genetic counseling speaks to the impact that this will have on the family. Ms. Jones noted that they use a holistic approach. Ms. Jones indicated that not just any organization could provide this service. Education is valuable. Ms. Hughes asked how the program impacts the community. Ms. Jones stated that they are concerned aboM morbidity and mortality issues. She stated they were attempting to decrease the risks associated with the disease. She stated that new mothers need folic acid information, etc. They work with those organizations that are working to reduce the high risk factors. She noted that many of the genetic health issues could be preveMed. Our job is not to tell people not to have children bM to educate them so they may make the right choice. Dr. Myers asked what the organization will do if they received less money than requested. What would be their priority? Ms. Jones indicated that all of the componeMs are important. She noted that they would make a concerted effort to hone in on each area. She stated Page 99 she wouldn't tell the committee that if we don't get the funds, they wouldn't do the program. Ms. Jones gave an example of their program the "slime game." She also discussed a pareming handbook that includes signs for parents to look for. Dr. Myers asked if someone had the test at age 12 or 13 is that a lifetime test? Ms. Jones indicated that it was. Dr. Dzandu came in at this time and provided some additional information to the committee about sickle cell disease and educating the public about the disease. Ericka Lissberger of SPAN introduced herself. Ms. Bramley asked the represematives to summarize the program for which they are requesting funds. Ms. Lissberger stated that they are asking for nutrition money for congregate meals at the senior center and the elder center at the American Legion Hall. Ms. Lissberger noted the funding was also to assist in the meals that are delivered. She stated that SPAN is asking for $32,000. They project that their meal numbers are going up to about 30,000 meals. Ms. Lissberger stated that this time they're also asking for help with salaries ($3000) rather than just funding for the meals. She noted that the budget provided is the total agency budget, and she realized that this does not provide good information to the committee about the meals program since the budget also includes transportation grams. Ms. Lissberger reviewed the services offered by SPAN. Ms. Hughes asked how this program would impact Demon. Ms. Lissberger stated it was the nutrition aspect and the socialization aspect of being with your peers and visiting. She noted that the delivery program is especially helpful. The homebound elderly look forward to the visit by the volumeer, and staff can see if there are any problems at the home or with the individual. She noted that they have almost 500 volumeers in Demon County. Dr. Myers asked what the organization will do if they received less money than requested. How would they prioritize. Ms. Lissberger stated that they would use the funds as necessary and then put people on a waiting list for home-delivered meals and perhaps a cap on the congregate meals. She noted that SPAN really needs that help from the City. Novalia Williams of Training for Excellence introduced herself. Ms. Bramley asked Ms. Williams to summarize her program. Ms. Williams stated that this is a program that helps people who have a bad credit rating and need help to become homeowners. She noted that they would educate a total of 48 persons over the year, four groups of twelve with three-months of training. Ms. Williams explained the program. Ms. Williams stated she had spoken with Ken Washington and Carolyn Phillips, and they have heard the voices in the community say they need this service. Ms. Hughes asked how their program would affect the community. Ms. Williams stated that Demon would be better as a result of this program. Dr. Myers asked what the organization will do if they received less money than requested. She asked how they would prioritize needs. Ms. Williams stated that they would obtain volunteers to get the help. Rather than having four 90-day programs, it might have to be reduced by two. Ms. Kelly referred to the organization's by-laws and stated that she noted that the founder could not be removed. Ms. Kelly asked who the founder was. Ms. Williams indicated that she was the founder. Ms. Kelly noted that the structure was very unusual putting a lot of power in the hands of the chair and the co-chair. She stated that ordinarily the director is hired and fired by the board. Ms. Myers asked why she didn't carry out these programs for profit. She noted that they were a non-profit and that is how they handled these programs. Page 100 Elinor Hughes asked if there is any consensus that there are some agencies that cannot be funded or did not qualify for funding. Members agreed not to fund Training for Excellence. Mr. Leal suggested that they wait for the other committee members before they make other decisions. Dr. Myers stated that her policy would be that if she were on the board of an organization, she would not mm in a funding sheet. Members agreed that this would be an appropriate policy for all members. Members also agreed that staff would throw out the highest and lowest score for each agency and average the rest. Dr. Myers said she did not score some of the applications because she felt they did not meet the committee' s funding criteria. Committee members discussed how staff should average scores if there were some applications that were not scored at all by the committee. Mr. Leal suggested that he average the actual scores for those agencies and then indicate how many committee members said that particular program did not meet the criteria for funding. Committee members decided instead to go ahead and score all of the applications even if the committee member felt it did not meet the criteria for funding. In that case, the high and low score would still be thrown out. Committee members could discuss if they did not think a particular program qualified for funding at the deliberation meeting. Mr. Leal reminded the committee members that scoring sheets were due to the Community Development office by 5:00 p.m. on February 25. Mr. Leal will average the scores and send them back to the committee at least one week before the deliberation meeting. The next Human Services Advisory Committee meeting will be held on March 18 at 6:00 p.m. in the Community Development Conference Room located at 100 West Oak, Suite 208. The meeting adjourned at approximately 9:20 p.m. Page 101 Unofficial Minutes Human Services Advisory Committee Meeting March 18, 2002 Members Presem: Carol Bounds, Carol BraMley, Dr. Wallace Duvall - Chairperson, Elinor Hughes, Peggy Kelly, James McDade, Dr. Bettye Myers, Teri Rheault - Vice Chair, Betty Tomboulian Members Absem: Carl Williams Staff Presem: Dan Leal - Human Services Coordinator; Barbara Ross - CD Administrator Dr. Wallace Duvall called the meeting to order at 6:15 pm. He brought the committee's attention to the agency requests. He also suggested that the committee review the scoring sheet showing how the members scored each agency. Dr. Duvall poimed out some of the lower scores at the bottom of the scoring sheet. Dan Leal explained the "0" scoring line that showed which agencies received a "0" from at least one committee member. Dr. Myers asked about the "O's" and what they meant. Ms. Kelly also asked about the "0" line. Mr. Leal explained how an agency received a "0." If a committee member wished not to score an agency because the committee member felt the agency did not meet the funding criteria or if the member put a "0" on the scoring sheet, the agency received a "0." Mr. Leal explained that the final column showed which agencies were or were not recommended for funding last year. He reviewed whether those agencies with $0 for last year were new applicants or were not funded last year. Dr. Duvall suggested that the committee drop off agencies at the bottom of the scoring sheet that received the lowest scores. Peggy Kelly moved that they be dropped off. The members agreed that starting with Riding Unlimited they should be dropped off. Carol Bounds thought it should be dropped if it was below 80%. Ms. Hughes stated that there are some agencies that were funded before above that line. James McDade seconded the motion. Six members voted to accept the motion. Two disagreed. Ms. Tomboulian said the committee should eliminate the bottom six rather than eight. Dr. Duvall asked about this consideration. Ms. Rheault stated she would have a problem dropping Adult Day Care. It was stated that this is not what was being recommended. Members agreed to drop the bottom six programs. Mr. Leal explained the amounts requested by applicants and the amounts received by agencies last year. Ms. Hughes asked if you have two projects from a single agency is that considered a single monitoring visit. Ms. Ross explained that each program must be monitored separately in terms of paymems and beneficiaries and whether the program meets its objectives. Ms. Hughes poimed out that there are some things that are agency relevam - there would just be one audit, board of directors, etc. Ms. Ross agreed that some items would require a single check for both programs but the amount of work on a monthly basis is based on the number of programs. Ms. Tomboulian asked the committee if an agency was funded last year would this necessarily be a Page 102 criterion for funding this year. Dr. Myers stated that she considers each agency to have a "0" budget and is judged on this year' s application and its merits. Ms. Kelly stated that she felt that if they weren't funded last year it's a bit of a negative. Ms. Hughes asked if they were more or less in agreemem that they couldn't go up on the agencies funding amounts from last year? She added that if another agency is funded that they would not be able to give more funding. Ms. Kelly stated that she agreed. Ms. Bounds stated that her frustration is that some applications are developed by large organizations where she is uncertain as to whether they really need the funding. Some of the gram applications were written beautifully, and it would have been difficult to score those any other way bm wonderfully. Ms. Bounds added that she thought they had to look hard at those who really need the funds and this is the only place they can get it, rather than funding those that have large amoums of funding and higher paid employees. Ms. Kelly poimed om that you can't penalize a program for being successful. Dr. Duvall stated that there are agencies that have more opportunity to raise funds. Ms. Hughes commented on the scoring system. Dr. Duvall suggested that they consider changes to the scoring system at a later date. Ms. Hughes suggested the committee look at those agencies that are scored in the top 25 and were funded last year and see if they warn to change their funding from last year. Members agreed to start with the top scoring applications and determine funding amounts. It was recommended that Demon Christian Preschool receive $30,000.00. It was recommended that Interfaith Ministries receive $17,250. Ms. Hughes noted that the increase was to pay utilities. No administration is requested. Mr. Leal said that a small portion of the request was for administration. Members discussed using other strategies to increase funding for mility assistance. Dr. Myers suggested that they fund Fred Moore Day Nursery at last year's level but give them more if it is available. She noted they were looking at providing more low cost infam care. Ms. Tomboulian noted that the increase was to pay the increased cost of staff health insurance. Members agreed to consider additional funding. It was recommended that Demon City County Day School and the Community Food Cemer be funded at last year's level. Dr. Myers also suggested that the committee consider an increase for City County Day School if funds are available. Dr. Duvall asked members if they wished to fund RSVP at last year's level. Ms. Hughes indicated that she would like to provide the agency with an increase. Ms. Kelly also noted that they receive a small amoum and when the agencies were cm by 10% that really hurt. She also noted that they have a fairly large staff. Ms. Rheault stated that she felt that the services provided by RSVP were not urgently needed. Ms. Kelly stated that Ms. Corona indicated that Lewisville pays the total cost for their coordinator and Denton does not. Ms. Kelly noted that they serve all the agencies in the community. Ms. Rheault noted that there were many agencies that were not given assistance by RSVP. Members agreed to leave the funding at last year's level. Ms. Kelly responded to Ms. Rheault's concern aborn "urgem needs" by noting that "quality of life" is also importam and that she hoped the committee didn't spend all the funds on emergency needs. Ms. Ross asked if they felt more of the community's funds were spem on the elderly or children and youth. Dr. Myers stated that we don't spend nearly as much on the elderly. Page 103 Dr. Duvall asked about CASA of Denton County. Dr. Myers stated she felt there was a lot of State and Federal funds for the agency. Ms. Tomboulian stated that she felt that if the committee doesn't fund it, City Council would probably fund it. Ms. Kelly stated that she was not sure of that. Ms. Ross commeNed that HSAC might not wan to base decisions on what they feel Council might do. She noted that there might be some new Council members who would consider these recommendations. Ms. Tomboulian noted that the funds were to be used for the executive director's salary. She commeNed that last year the committee did not fund the Children's Advocacy CeNer due to the high salary of the executive director. Members discussed the difficulty agencies have in finding money for administrative salary. Members agreed that the salary was reasonable. Members agreed to recommend the same amouN for CASA as they received last year. Members discussed King's Kids Day Camp. Dr. Myers stated that she was concerned. She felt that the Parks Department has a better chance of finding funds to do these programs. Ms. Hughes poiNed out that the City playground and childcare programs are fee-based and that this funding is used to provide scholarships. She asked how the City decides where to stop providing scholarships with so many in need. Ms. Ross stated it was first come, first served. Dr. Myers suggested that two, six-week programs would help more kids than one full summer program. Ms. Tomboulian asked if the PARD program and Fred Moore after school programs were the only programs in the area. Mr. Leal meNioned that DHA had a small program for the resideNs of the Phoenix. He also stated that there was no longer a summer program at Fred Moore High School. Mr. McDade stated that the program should be left as a full summer program. He noted that churches in the area could help with transportation. Members discussed the insurance issue. Various individuals stated that short term insurance was available for church vans if that was necessary. Members agreed to leave the funding for the King's Kids program at last year's level. Members discussed funding for the Sickle Cell Disease Association. Carol Bounds stated that this program didn't seem to take care of people as other programs do. Dr. Myers stated that their main thrust appears to be testing and education. Ms. Kelly confirmed with Mr. Leal that he felt comfortable that their beneficiary information was accurate. He noted that they provided four households with genetic counseling but many more with screening and education services. Ms. Bounds asked how many families they take care of in DeNon. Mr. Leal stated that the Sickle Cell Foundation provided education to 670 resideNs, screening to 830 resideNs (questions to determine risk), testing to 83 resideNs and genetic counseling to four resideNs. Ms. Bounds asked that a question mark be included next to the funding amount for the organization. Members agreed to recommend $15,000 for the Salvation Army, which was also last year's request and funding amount. Committee members also recommended that Family Health Care be funded again at last year's level of $30,000. Members discussed the funding for the Owsley Summer Playground program and other programs. Dr. Myers commeNed that she was not sure that field trips should be funded. Ms. Kelly asked about transportation. Mr. Leal pointed out that last year the Boys and Girls Club provided a bus that was purchased from SPAN, which saved money that would have been used for vans. Ms. Hughes pointed out that the committee needs to discuss all the Owsley programs at one time because if some programs were funded and not others there could be a shortage of services. Ms. Hughes poiNed out Page 104 that if the Boys and Girls Club program is not funded then it may affect other programs in the area. Members coNinued to discuss the Owsley neighborhood and the Boys and Girls Club programming. Ms. Kelly and Dr. Myers asked if the Boys and Girls Club provided services to Owsley in the fall of 2001. Mr. Leal indicated that they did and that they worked closely with the Owsley Community School to provide services. Members agreed to put a question mark on the Owsley Summer Program to see if additional funding was warraNed based on their recommendations regarding the Boys and Girls Club. It was recommended that HOPE, Inc. receive the same allocation as last year - $30,000. Members also recommended that HelpNET be funded last year's level of $22,500. Members discussed AIDS Services of North Texas. It was determined that their nutrition program would also be funded at last year's level of $15,000. Ms. Bounds noted that the executive director of AIDS Services was put in place to bring in funding. Ms. Kelly stated that these are DeNon resideNs that are receiving food and nutrition assistance. Members agreed to recommend funding of $36,000 for DeNon County Friends of the Family. Members noted that the After School Action Site and TRAC programs were asking for a significaN increase. Ms. Kelly stated that the committee should stick with last year's funding level. Ms. Hughes noted that the funding wen to provide scholarships for children. She stated that if there weren't sufficieN scholarships, the children would stay home or alone or be in other non-desirable situations. Members agreed to recommend funding at last year's level of $17,000. The Owsley Community School was discussed. Dr. Myers suggested that the committee not recommend funding. Ms. Kelly stated that she was impressed with the fact that Greg Hedges stated he only needed funding for one year and that he would not come back in subsequeN years. Ms. Bounds stated that they were ranked low but that she was impressed with the services they offered. Dr. Myers stated that she felt organizations want to provide services in Owsley because the committee funds programs there. She noted that she would like to see a comprehensive program for the area. She added that DISD has ESL program that could serve the area. Mr. McDade commeNed that the cultural background of families in the area does not encourage their participation in programs with people they don't know well. Ms. Hughes suggested a comprehensive program of services be developed. Members discussed the idea of putting forth a request for proposals from organizations that wish to serve the Owsley area. She noted that she is more concerned with after school care than ESL for adults. Ms. Rheault said that ESL classes help pareNs to find jobs where they can afford after school care. Dr. Myers stated she would also like them to coordinate with DISD. Members agreed to include funding of $14,750 and include a question mark so that they can discuss it again when they discuss additional funding for the Owsley area. Members discussed the transitional program provided by the Cumberland Children's Home. Dr. Myers stated that she felt it was a good program and there were private resources to fund it. Ms. Rheault also commeNed that HOPE provides those services and it seems like a duplication of services. Mr. Leal stated that families assisted by HOPE meet the definition of homeless or are poteNially homeless. Cumberland Children's Home serves families regardless of their homeless status. Cumberland Children's Home is attempting to keep the family intact. Members agreed not Page 105 to fund the program. Members discussed Denton County MHMR's Sierra program. Ms. Brantley pointed out some information in the monitoring letter regarding the number of persons served by the program. Ms. Kelly pointed out that they assisted 31 persons. Mr. Leal provided the committee with information on the Sierra program. Ms. Hughes asked what other sources were used to fund the program. Mr. Leal indicated that the funding is supplemented. Mr. Leal explained the purpose of the Sierra program. He noted that MHMR's traditional programs could serve SIERRA clients that are later identified as being in the priority population, but the SIERRA program serves individuals that do not meet priority population. Ms. Hughes asked how they managed last year by only receiving $9,000. Ms. Tomboulian noted that you could not tell what the salaries of MHMR employees were based on the information they gave. Members discussed how MHMR might fund the SIERRA program if the committee only recommended $9,000. Ms. Rheault noted that agencies did not clearly show how programs that were not fully funded by the City were funded through other sources. Ms. Hughes stated that members need to know what other funding is involved in these programs. Members agreed to set aside $9,000 for funding of the SIERRA program. Members discussed the Denton Family Resource Center's request. Ms. Kelly stated that she had some concerns. She noted that almost the entire board has resigned in the last month. She also indicated that she contacted a board member who had resigned. The former board member stated that he and the others resigned because they were asked to. The two remaining board members stayed to help reconstitute the board of directors for the agency. Ms. Kelly indicated that some of the conflicts were because the board members were not doing enough fund raising. She also stated that DFRC did not pay their payroll taxes over the past year and are now having to pay those back to the Federal government. The director has not taken a salary for the last three months. Dr. Myers stated that this information was in the minutes of the agency's board meeting. Ms. Kelly stated that the member she talked with stated he did not get sufficient financial information from the director. Mr. Leal referred members to his memorandum that contained information on agencies that were monitored last year, including DFRC. Ms. Rheault stated that she felt the agency didn't seem very steady. Ms. Kelly stated that she was surprised that they have been funded this long without an audit. Dr. Myers stated that they are living on grants and when you don't get them you're in trouble. She noted that there was very little effort by the board members to raise funds. Ms. Kelly noted that in the monitoring letter there was an indication that DFRC did not provide sufficient financial reports to the City. Dr. Myers said that the executive committee of the United Way board met with the DFRC board about two weeks ago to discuss these matters. Members continued to discuss the Denton Family Resource Center. Ms. Tomboulian stated that the application states the funds would be used for the program coordinator's salary. Members discussed the various funding sources for the agency. Dr. Duvall and Dr. Myers complimented Fran Moore and the work of the Denton Family Resource Center. Ms. Hughes explained that she was looking for information related to the visioning process that the City went through. She indicated that what the visioning committee requested was exactly what the DFRC was doing. Ms. Rheault stated that it did not just appear that they were having funding problems but there are also some reporting and other management-related issues. Mr. Leal stated that he believes they need some assistance developing their financial reports. He indicated that he did not feel it would be difficult for the DFRC to get assistance in this area. Ms. Bounds stated that she felt the real question was regarding HSAC's responsibility in this area. Ms. Hughes commented that if the agency is weak, that the money might not be spent. Members Page 106 discussed the availability ofunspeN funding for reallocation. Members agreed to recommend funding at last year's level. Mr. McDade noted that the Boys and Girls Club was not given the benefit of the doubt but that DFRC is being given assistance even though they have financial difficulties. Members discussed that they did reallocate some funding for Boys and Girls Clubs to continue programming in the past. The members discussed funding Fairhaven's homemaker program providing housekeeping services for residents. Dr. Duvall noted that he was not aware of other nursing homes that don't take care of their housekeeping. Other members noted that this was not a nursing home facility. It is a retirement home and residents are expected to maintain their own units. Ms. Ross indicated that the service was an attempt to help the more frail elderly remain in the retiremeN facility rather than going to nursing care. Members agreed to fund Fairhaven Homemaker services at last year's level. Discussion regarding the Children's Advocacy CeNer of DeNon County began with an explanation that the organization had changed the focus of its application. Ms. Tomboulian noted that they were requesting funding for direct care staff salaries. Dr. Myers indicated that last year's request was for an increase in the executive director's salary. Mr. McDade stated that he recommended not funding the agency. Ms. Kelly stated that they would go directly to City Council if they were not recommended for funding. Ms. Bounds stated she did not understand that when agencies ask for funding and the committee tums them down but, if they know how to word it and not ask for salaries, they can get funding. Ms. Kelly stated that she felt the Children's Advocacy CeNer funding sources would be more likely to fund salaries than resources from other agencies. Mr. Leal poiNed out that some of the agencies that provide counseling and "staff intensive" services must ask for salaries. Members coNinued to discuss the Children's Advocacy CeNer and whether they waned to recommend funding for the agency. Mr. McDade indicated that this application was just a re- phrasing of what was requested last year. He noted that even though salaries are going up around Denton, he still felt this one was excessive. Ms. Hughes pointed out that AIDS Services had an executive director salary that was $70,000. Mr. McDade noted that he voted against that too. Ms. Kelly pointed out that they probably look at County salaries rather than those of social service agencies. They are probably on the same level as the County. Ms. Bounds noted that they were cut last year and asked how they managed without the funding last year. She wondered whether the committee was really looking at their need. Members reviewed the financial information submitted by the agency. Members agreed to recommend funding of $10,000 for the Children' s Advocacy Center of Denton County. Members agreed not to fund AIDS Services Outreach program. They noted that they wanted to fund the nutrition program but not the outreach program. Members discussed Adult Day Care of North Texas. Mr. Leal stated that some HSAC members were concerned about the number of DeNon resideNs served by the facility. He noted that eight Denton residents were now being served. Five Denton clients are receiving financial assistance. Ms. Kelly asked if they had funding left over from last year. They discussed whether funding could be carried over from the current year into next year. Ms. Ross indicated that if they had significant funding left, it was possible to carry it over but that staff felt this should not become a common practice. Members agreed to fund Adult Day Care at $9,000 with the understanding that funds Page 107 could be carried over from the previous year if the $9,000 ran out before the end of the coNract year. Members discussed funding for the Boys and Girls Club and MHMR's AdolesceN Substance Abuse Program. Members agreed not to recommend funding for either program. Members agreed to fund Riding Unlimited at the requested $875.00 amouN. Ms. Kelly poiNed out that it would add an agency that would need to be monitored for only $875. Members agreed to recommend that Riding Unlimited be funded. The HSAC voted not to recommend funding for the Camp Fire Girls. Members reviewed their recommendations. Ms. Bounds recommended that additional funding be allocated to the Owsley Summer Playground programs. Ms. Tomboulian stated that they might also wan to look back at DeNon Christian Preschool, Fred Moore Day School and City County Day School. Ms. Hughes asked if the Boys and Girls Club application showed how much were for summer programs and how much was for after school. She was concerned that the committee was trying to put together a program for the area without sufficient planning. Members discussed whether they could take additional time to address the issue. Ms. Ross explained that the CDBG recommendations had to be ready by the end of the month to put the Action Plan out for public commeN. Final decisions on general fund recommendations could be delayed a bit. Ms. Tomboulian noted that there were sufficieN dollars to fund the Boys and Girls Club. Ms. Kelly suggested giving the full amouN to the summer playground program they could provide the services for the neighborhood. This would mean Boys and Girls Club would not need to be funded. This would take the budget to approximately $435,000. Ms. Hughes noted that the field trips are necessary because it gets so hot in the summer. Ms. Bounds made a suggestion as to how the members might increase the funding to the Owsley programs by providing funding requested by the Boys and Girls Club to the Owsley Summer Playground program. This would provide funding for vans for field trips, etc. Dr. Myers suggested that they receive more funding than the requested amount. Ms. Rheault pointed out that other agencies were marked for possible increases. Committee members discussed other ideas regarding how to fund services in the Owsley area. Mr. Leal provided members with some financial information regarding the previous costs associated with provision of after school care in the Owsley neighborhood. Members agreed to provide $19,500 to the Owsley Summer Playground program and $13,000 in additional funding to the Owsley Community School to provide after school programming. Committee members reviewed the amouN of funding that had been recommended thus far. The amouN of recommended funding totaled $448,675. Committee members looked at the programs that had been recommended for funding at last year's level but that the committee had was considering for a slight increase. Dr. Myers recommended that the committee consider adding $1,000 to Fred Moore Day Nursery School's recommended amouN. Committee members agreed to recommend $39,000.00 for Fred Moore Day Nursery School. Page 108 Following is a list of the Human Services Advisory Committee's final recommendations. Adult Day Care of North Texas After School Action Site/TRAC AIDS Services of North Texas (Nutrition) AIDS Services of North Texas (Testing) Boys & Girls Clubs of Demon County Camp Fire USA CASA of DeNon County Children's Advocacy Cemer of DeNon County Community Food Cemer Cumberland Children's Home $ DeNon Christian Preschool DeNon City County Day School Friends of the Family DeNon County MHMR - ASAP Denton County MHMR - SIERRA Denton Dynamos Fairhaven Retiremem Home Family Health Care Fred Moore Day Nursery School Cross Timbers Girl Scouts HelpNET of the Greater DeNon Area HOPE, Inc. Imerfaith Ministries King's Kids Day Kamp Living Choices / Woman to Woman Owsley Community School - Adult Education Owsley Summer Playground REACH DeNon Family Resource Cemer Riding Unlimited Retired Senior Volunteer Program St. Andrew Church of God Salvation Army Sickle Cell Disease Association SPAN (Elderly Meals Program) Training for Excellence Owsley Community School - After School Program $ 9,000.00 $17,000.00 $15,000.00 $ o $ o $ o $ 8,000.00 $10,000.00 $ 3,000.00 0 $ 30,000.00 $ 35,000.00 $ 36,000.00 $ o $ 9,000.00 $ o $ 7,500.00 $ 30,000.00 $ 39,000.00 $ o $ 22,500.00 $ 30,000.00 $17,250.00 $19,800.00 $ o $14,750.00 $19,500.00 $ o $ 7,650.00 $ 825.00 $ 7,400.00 $ o $15,000.00 $ 4,500.00 $ 29,000.00 $ o $13,000.00 Total Amoum Recommended $449,675.00 The meeting adjourned at approximately 9:40 p.m. Page 109 Agenda 02-013 04/16/02 #26 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: April 16, 2002 Planning Department David Hill, 349-8314 SUBJECT - Z02-0002 (Nottingham Wood) Hold a public hearing and consider adoption of an ordinance rezoning approximately 54 acres from a Neighborhood Residential 3 (NR-3) zoning district to Neighborhood Residential Mixed Use (NRMU), Neighborhood Residential Mixed Use 12 (NRMU-12), and Neighborhood Residential 6 (NR-6) zoning districts. The property is generally located south of Mingo Road and the Union Pacific railroad, east of Mozingo Street, north of Lattimore Street, and north and west of Audra Lane. Single-family, multi-family, and neighborhood office and retail development is proposed. The Planning and Zoning Commission recommends approval (7-0). BACKGROUND Applicant: SENT Corp, 1621 Amanda Court, Ponder, Texas 76259 The applicant is proposing Neighborhood Residential Mixed Use (NRMU) zoning for a 6.6 acre tract at the northeast corner of Audra and Nottingham, Neighborhood Residential Mixed Use 12 (NRMU-12) zoning for a 9.5 acre tract southwest of the intersection of Nottingham and the railroad, and Neighborhood Residential 6 (NR-6) zoning for a 34.2 acre tract east of Mozingo, west of Audra and north of Lattimore. Public notification and property owner responses are detailed in Attachment 3. Currently, 5,5% of the land area within 200 feet of the subject property is in opposition to the zoning change. OPTIONS 1. Approve as submitted. 2. Deny. 3. Postpone consideration. 4. Table item. RECOMMENDATION The Planning and Zoning Commissions recommends approval (7-0). ESTIMATED PROJECT SCHEDULE The subject property is not platted. A final plat is required prior to the issuance of any building permits. PRIOR ACTION/REVIEW The following is a chronology of Z02-0002, commonly known as Nottingham Wood: Application Date - February 11, 2002 DRC Date - February 21, 2002 Neighborhood Meeting - March 11, 2002 P&Z Date - March 13, 2002 FISCAL INFORMATION Development of this property will increase the assessed value of the city. It will require no short-term public improvements that are the responsibility of the city. As a form of infill development, no extension of public infrastructure is necessary to service this site. ATTACHMENTS 1. Staff Analysis 2. Maps 3. Public Notification (Property Owner Notification Map and Property Owner Responses) 4. Photographs 5. Zoning Plan 6. Minutes from March 13, 2002 Planning and Zoning Commission Meeting 7. Draft Ordinance Prepared by: Thomas B. Gray Planner II Respectfully submitted: Douglas S. Powell, AICP ATTACHMENT 1 Staff Analysis Summary_ of Zoning Request Approximately 54 acres generally located south of Mingo Road and the Union Pacific railroad, east of Mozingo Street, north of Lattimore Street, and north and west of Audra Lane are curremly zoned Neighborhood Residemial 3 (NR-3). The applicam is proposing Neighborhood Residemial Mixed Use (NRMU) zoning for a 6.6 acre tract at the northeast comer of Audra and Nottingham, Neighborhood Residemial Mixed Use 12 (NRMU-12) zoning for a 9.5 acre tract southwest of the imersection of Nottingham and the UP railroad, and Neighborhood Residemial 6 (NR-6) zoning for a 34.2 acre tract east of Mozingo, west of Audra and north of Lattimore. The applicam is proposing single-family developmem in the tract proposed to be zoned NR-6, multifamily development in the tract proposed to be zoned NRMU-12, and office and retail development in the tract proposed to be zoned NRMU. The proposed zoning would result in a maximum of 205 single family residemial units and 114 multifamily residemial units. Existing Condition of Property_ Property History: February 20, 2002 - The subject property was placed in the Zoning Classification (NR-3) zoning district and land use classification by Ordinance 2002-040. Previous to the adoption of the DeNon Developmem Code, this property was in the Planned Developmem 82 (PD-82) zoning district. The property is curremly undeveloped. It is bordered by NR-2 zoning to the north, NR-2 and NR-3 zoning to the east, and NR-4 zoning to the west and south. Comprehensive Plan Analysis The subject site is located within the "Neighborhood Centers" future land use area of The DeNon Plan. These areas may develop in convemional patterns or may be developed in a pattern of 'neighborhood cemers'. Neighborhood cemers are oriemed inwardly, focusing on the cemer of the neighborhood and comaining facilities vital to the day-to-day activity of the neighborhood. A neighborhood center might contain a convenience store, small restaurant, personal service shops, church or synagogue, daycare, individual office space, a small park and perhaps an elememary school. The subject site is adjacent to "Existing Neighborhoods/Infill Compatibility" future land use areas. The plan recommends that existing neighborhoods within the city be vigorously protected and preserved. Housing that is compatible with the existing density, neighborhood service, and commercial land uses is allowed. The proposed development is consistent with The Denton Plan. Development Review Analysis Transportation Trip Generation. Assuming 9.55 trips per single family unit and 6.59 trips per multifamily unit, the residemial portions of this developmem could generate a maximum of approximately 2,709 trips per day. Additional traffic could be generated by the office and residemial portions of this developmem, depending upon their sizes. A Traffic Impact Analysis (TIA) will be required at the time of platting. The Traffic Impact Analysis will more accurately determine the impact of this developmem on traffic flow as well as idemify the required road improvemems necessary to mitigate negative impacts of the proposed development. The development will have access to Lattimore Street, Nottingham Drive, Wayne Street and Tyler Street. The proposed project will have to meet the minimum requiremems for pedestrian linkages; milities; drainage and topography; signs; landscaping; open space; lighting and environmem quality impacts. Developmem Code/Zoning Analysis Because this property is adjacem to existing neighborhoods, careful consideration needs to be given to the protection and buffering of those existing neighborhoods as well as the compatibility of the proposed land uses and densities with the surrounding residemial developmem. As such, staff is concerned aborn the compatibility of the proposed higher densities and intensities with the surrounding residential development. In particular, the western portion of the 34 acre tract proposed to be zoned NR-6 directly abms an existing neighborhood. Staff suggests that the applicam consider a transition between differem density types, for example, by providing a buffer of NR-4 zoning along the western edge of the property. The applicam's proposal would create a "node" of higher densities and neighborhood services that would serve the surrounding neighborhoods, in accordance with The DeNon Plan. Because the optimal location for such nodes is at intersections, staff would also suggest that the area proposed to be zoned NRMU be cemered around the imersection of Nottingham and Audra, as opposed to being located off to one side. ATTACHMENT 2 Maps NORTH Location Map SIT LOCATION MAP Scale: None Land Use Map NORTH Scale: None ATTACHMENT 3 Public Notification NORTH Notice was published in the Denton Record-Chronicle on March 2, 2002. Notification Map SITE Scale: None Public Notification Date: 200' Legal Notices* sent via Certified Mail: 500' Courtesy Notices* sent via 1st Class Mail: Number of responses to 200' Legal Notice · In Opposition: 10 · In Favor: 2 · Neutral: 0 3/1/02 44 120 Percent of land within 200' in opposition: 5.5 % *A copy of the notification list can be picked up at City Hall West, 221 N. Elm Denton TX 76201 Property Owner Responses Property Owner Name In favor Comments and Address /opposed* Robbie Hale Homes 620 Rowlett in favor none Garland, Texas Raul Aguilar SAS & Associates, Inc, in favor none 14860 Montfort, Suite 107 Dallas, Texas 75254 Kenna & Tim Johnson 1206 Audra Lane opposed none Denton, Texas 76209 Melvin Kenneth Wilson 1614 Mozingo opposed none Denton, Texas 76209 John P. McManus We opposed the widening of Audra Lane. Now that 2111 Lattimore St opposed Audra Lane is completed zoning change request for Denton, TX 76209 the adjoining land arrives. Next step: Office Bldg? Apartments? We prefer to see cows not more people, traffic, etc. Laurie L. Steinman 1221 Oak Tree Dr opposed none Denton, Texas 76209 Mattie Lorene Wells 1800 Stonegate opposed none Denton, Texas 76205 Donna Benton opposed 6935 Jen Stuart none Richmond, Texas 77469 Harvey Lee Carter Rt 1 Box 147 opposed none Clarksville, TX 75426 Stacey C. Taylor Opposed to request of Neighborhood Residential 2110 Lattimore opposed Mixed Use 12 (NRMU-12). I oppose the building of Denton TX 76209 apartment complexes. Stover B. Wilson 1624 Mozingo opposed none Denton TX 76209 Carolyn C. Silverdale 2010 W. Oak St opposed none Denton TX 76201 *A copy of the original notice can be picked up at City Hall West, 221 N. Elm Denton TX 76201 ATTACHMENT 4 Photographs Photographs ATTACHMENT 5 Zoning Plan NORTH CondcnscltTM 6 7 8 9 10 11 12 13 wanted to point that out that that's a part of your rutes. COMMISSIONER RISHEL: Thank you, Once again, the motion on Item No. has been 5 and that's continued to a date which is -- we talked about putting this Agenda on a date certain. l~larch 27th. RISHEL: on the motion MR. the date certain tED Thank you very much. Okay. That concludes o. 15 on our Agenda and it 14 brings us to Item No~f _. 15 COMMIS~rNER Mr. Chairman. 16 COMM~[IONER RISHEL: ~n nissioner Powcll. 17 COMMI][SSIONER POWELL: M~]~ I comment on this 19 . say some~g. '~ 20 /COMMISSIONER RISHEL: IS there a ~, 21 clar~ation that You're trying to stress here? · 23 / COMMISSIONER RISHEL: Thank you. ~r COMMISSIONER POWELL: I see that we 25 an hour almost on this motion or on this item, and we 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 didn't get anywhere really. And in my opinion it because we didn't have any clear place to [ re was no clear set out Agenda for re not listed separately anywhere no recommendations. There's no know can work intelligently like we need somebody~ ;~ve us to vote on. pages there but not didn't know it was out of here. I got thal the second time toni night. Give us COMMI discussion for I don't four on out not one motion. And I I couldn't get that ' the applicant. This is it's gone on night after d. Thank you. It might be a KEITH: to ls an arum comer 20 / COMMISSIONER RISHEL: Thank yo~ .\ 22 / COMMISSIONER KEITH: I tried, I trl d v 23 /nuch -- 24 ~r COMMISSIONmR RISHEL: Moving on to Item 25 No. 16. 7 8 9 10 1 2 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 t7 18 19 20 21 22 23 24 25 order. I trie COMMISSIONER RISHEL: I'm moving on to Item No. 16 on our Agenda. Item No. 16 is shortly to be on the docucam. And Mr. Gray will present. MR. GRAY: Good evening. This is a zoning case regarding approximately 54 acres generally located south of Mingo Road and the railroad, east of Mozingo, north of Lattimore, north and west of Audra. You should have this map or one just like it in your backup where there's been a recently completed extension of Nottingham from this bend of Audra across the railroad tracks, and this property mostly lies on the west side of this extension. Some of it's on the east side, as well. It's 54 acres and the applicant is proposing to rezone as follows: the property is all currently zoned NR-3, Neighborhood Residential three units to the acre. A 34.2 acre tract, the applicant is proposing to rezone to NR-6, six units to the acre. There's 9.5 acres up here at the northern portion of the property near the intersection of Nottingham and the railroad that the applicant is proposing to rezone to NRMU-12, Neighborhood Residential Mixed Use, I2 units an acre. Page 168 And then there's a roughly 6.5 acre property here at the northeast comer of Audra and Nottingham, the applicant is proposing to rezone to NRMU, Neighborhood Residential Mixed Use. The applicant is proposing single-family homes here, multi-family here, and then perhaps some neighborhood-oriented office and retail here. The bottom line is that this zoning change would increase the allowable densities. Right now it falls under NR-3. You can see the maximum of 160, 162 units on this property. This rezoning would allow him a maximum of 205 single-family units and 114 raulti-family units. So it could theoreticatly double the density. The applicant has a presentation where he might note that he's probably not asking for -- not planning to do that much hut he's requesting these increases in density to do what he wishes. As far as the Comprehensive Plan is concerned, this subject property is located within the Neighborhood Centers future land use area of the Denton Plan. And Neighborhood Centers are designed to be residential, mainly residential neighborhoods in character, but they could have some small neighborhood-oriented retail. That's an issue, but there's also an issue PLANNING AND ZONING COMMISSION MARCH 13TH, 2002 Page 165 - Page 168 CondonsoltTM Page 169 1 that the property is surrounded on the south and on the 2 west by property that is currently zoned NR-4 and is 3 currently within an existing neighborhood infill 4 compatibility future land use area. Now, with that, 5 staff's onIy -- the staff's concern is that because this 6 property is adjacent to existing neighborhoods, we need to 7 protect and buffer those existing neighborhoods as much as 8 possible and make sure that the proposed residential uses 9 and densities are compatible with the surrounding i 0 development. 11 This 34-acre tract that's proposed to be 12 zoned NR-4 directly abuts existing neighborhoods that's 13 also NR-4. Staff suggests that the applicant consider a 14 transition between these two properties, rnaybe by 15 providing some NR4 zoning here and then going up to NR-6. 16 That way there's a radiant between the higher densities to 17 the existing densities. 18 The applicant also recognizes that he is 19 trying to create a neighborhood center here with the 20 higher multi-family densities here, as welt as the 21 neighborhood residential mixed use here. That would 22 create a node of higher densities and neighborhood 23 services that would serve the surrounding neighborhoods 24 that are either being constructed or will be constructed. 25 For example, there's already property right here that has 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 9 20 21 22 23 24 25 Page 170 been final platted and houses should be going up rather soon there. So this node that the applicant is trying to create is in line with what the Denton Plan suggests. However, we would suggest that this NRMU zoning, instead of being up here off to the comer be more situated around the intersection of Nottingham and Audra because to staff a node literally means an intersection. Real quick, let me pass out information regarding a neighborhood meeting that was held Monday night that was attended by four people. And I have a sign-in sheet, as well as comments from that neighborhood meeting. There is also additional property owner responses in this packet being passed out right now, and I have highlighted in red the location of the properties that are currently in opposition to this zoning request. The nmnber of responses in opposition is nine and this represents 4.3 percent of the land area in opposition. I'll be happy to answer any questions or let the applicant speak. COMM£SSIONER RISHEL: Any questions, Co~mnissioners, of Mr. Gray? Once again, is the petitioner here and would they like to present? MR. BUSSELL: If you could set my PowerPoint presentation up, I'd appreciate it. My name is Alien Bussell. I work for Surveyors and Engineers of 10 ii 12 13 14 15 16 17 lg 19 20 21 22 23 24 25 Page 171 North Texas, 1621 Amanda Court, Ponder, Texas. I'm representing sas & ^ssociales tonight on this zoning amendment. And I think you'll find as we go through here that this puts into a concrete tactile form the vision for the Comprehensive ]?lan and the Development Code and how these things are going to work together in an infill type situation. Location, Mingo and the railroad to the north, Nottingham extension is bisecting the property, Lattimore Street is on the south, Wayne and Tyler Streets dead end on the west boundary, and Audra Lane lies to the east. And please stop me if you have questions. There are three churches in the area denoted here. And I just want to point out that a single-family residence appears to be right here. I'm not sure if that's part of the church property or not. It's a nice house so I just wanted to point that out. The blue area designa~s the vacant land around the property. The green is the existing single-family that's dcvclopcd around our property here. The raikoad. Over here, the retirement multi-family down here. There's a gas line along right here that gave the City fits with file Noltingham extension. Then there's the drainage channels through the property that this property owner allowed the City to build. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 172 The Comprehensive Plan and how this lies in here, and Thomas went over that, and this is just a visual representation of what he went over. The striped area is existing neighborhood infifl compatibility. We're in a Neighborhood Center. This is the existing zoning for the property and file surrounding property. As you can see, ~4~-4 comes all the way around here. There's a little bit of N~-6 right here that's not developed. ~4a-3 on the north where Denton Bible is, et cetera. NR-3 hem where this singleffamily will soon be. NR-2 are tile vacant lands and the church area and the single-family homes here. Transportation around the area, Loop 288 here. Another major arterial, 380. The minor arterials which is four-lane road here with Mingo and here with Nottingham. Of course, Nottingham now exlends all the way down past McKinney in four lanes. Audra is shown as a collector and Mockingbird is a collector. Tile yellow streets, which are kind of hard to see, are residential streets, although Lattimore, when we develop, will become a residential avenue which is basically a collector, a 65-foot right-of-way with an eight-foot sidewalk. This is the utilities in and around the site. There's sewer line in the middle of our property, a 10~inch line connecting to a 15-inch down here, eight-inch PLANNING AND ZONING COMMISSION MARCH 13TH, 2002 Page 169 - Page 172 Cond~nscltTM Page 173 1 lines here, another eight-inch line dead ends right here. 2 A line would have to be looped for the water interior to 3 this and, of course, regular water and sewer would need to 4 be provided to the homes. There appears to be sufficient 5 utilities to serve this property. 6 Here's the drainage and ESA affecting this 7 property. As you can see by the arrows, this is the flow 8 of the drainage through the property. The city has, of 9 course, improved these channels to where these don't do 10 these wiggly things anymore. They're nice and straight. 11 They're like engineers like them now. And then the -- 12 what's mapped as upland habitat tight here is actually 13 only about seven acres instead of the minimum ten. It's 14 actually a mapping error. 15 And here's what we're proposing. NRMU -- 16 or correction, NR-6~ it's 34 acres, six units per acre in 17 the brown area here. I believe that's an adequate buffer 18 from [he NR-4 to thc minor arterials here. And I disagree 19 with staff on that mainly because of the drainage we're 20 having to deal with in the area and working around that. 21 And the larger you get the lots, the less likely you are 22 to work around those drainage channels that the City has 23 installe& 24 The NRMU-12 iS buffering the single-family, 25 the proposed single-fmnily NR-6 from the railroad somewha~ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 i7 18 19 20 21 22 23 24 125 Page 174 and frown the Nottinghan~Vlingo intersection there. The :,~u~J provides a service to the entire area here per the Comprehensive Plan which the Neighborhood Centers are supposed to serve 5,000 people about one square mile or a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 175 having to go up to the next one. This shows the new court yard streets. This shows a buffer here from the existing neighborhood and a walking trail saving these areas back here, integrating those natural and man-made features. We're showing buffeting here and along the multi-family from the railroad. Neighborhood shops and services close by so people can walk and bike to them. And buffering the existing as I said before. And like I said, that's a conceptual. I basically laid it out to get a lot count to see where I was and see what zoning I was going to ask for. But that's what it would look like under the new Code. Yes, sir. COMMISSIONER MULROY: Yeah. You asked us to interrupt if we had any questions. Can you go back to your concept plan, AIIen? So you're going to preserve the trees even though you're not required to under the ES^? MR~ BUSSELL: As you know, you've worked on this a long time, under the Develoment Code, you're required five percent open space in single-family. With this stand of trees, you might as well put the five percent over there. COMMISSIONER MULROY: okay. Good idea. MR. BUSSELL: It's less expensive. It's a pretty feature. It buffers the existing neighborhood. Page 176 You know, there's a lot of good reasons for it. Will the site plan look exactly like this? No, I can't guarantee that. But, you know, it's -- COMMISSIONER MLILROY: It'S going to work one-mile radius, and that's what that does. In a perfect world, this would be great if this was a circular area, but it's not. In reality, this gas line, if you remember, runs through here. There's this drainage channel running on the north. We're actually only netting about 4.5 acres there. So Neighborhood Center is proposed by the Comprehensive Plan 5 6 7 8 9 10 11 for the best for both -- for everybody. MR. BUSSELL: YOU bet. It works for everybody this way. COMMISSIONER MULROY: One more question, Allen, before you move on. Can you take mc back to the gas line that cuts across? MR. BUSSELL: Can I just show you here? to be approximately ten acres. We're taking less than half of that so we'd be able to put another node down here and still have it work the way it's supposed to work. So that's why it's designed like that. It's just the geometry and the situation of working with infilI. And there's the buffering showing how we're going to buffer and the locations from the existing single-family or thc approved single-family and the NR-2 to the nortl~. This is the concept plan showing the Code and how it would look. Basically, I drew this up to see how many lots that the developer wanted to put in. He wanted certain size lots and we're not anywhere close to NR-6, but we~m over NR-4. $o we were in that situation of 12 COMMISSIONER MULROY: Yeah. 13 MR. BUSSELL: It's right there. That's why 14 these buildings are so far set back because it comes tight 15 there. 16 COMMISSIONER MULROY: show it again. Okay. 17 So it runs alongside -- see, it's hard for me to see your 18 flashlight. 19 MR. BUSSELL: I'm sorry. Let me go back. 20 Modem technology. There we go. It's the yellow line. 21 COMMISSIONER MULROY: okay. So would you 22 explain to me staff's co,torrent that they wanted a round 23 nodule there? 24 MR. BUSSELL: I don't think they mean 25 round. I think they'd like it a little more centered in PLANNING AND ZONING COMMISSION MARCH 13TH, 2002 Page 173 - Page 176 CondenseltTM 5 6 9 10 1I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 177 the area. They understand it's infill. I didn't mean to say that or infer that. All I'ln saying is that if they had their druthers, riley would rather have it more like this. Is that correct? But, in reality, we don't have a whole lot of mom to work with hem when you take out the drainage channel and the gas line. The net area area, we don't have -- you know, we have 4.5 acres. It doesn't work. COMMISSIONER MULROY: It doesn't scent you have much room and it does seem to make more sense to have Page 179 1 much, Ms. Wells. 2 Once again, this is a public hearing. 3 Anyone who would like to either speak for or against this 4 item on our Agenda, would you please come forward at this 5 time. Anyone for or against? 6 Seeing no one else who would like -- 7 please, would you care to speak? Once again, would you 8 give us your name and address? 9 MS. SWAN: Eleanor Swan and I am the 10 business partner of Ms. Wells on this rental property. I the commercial in tho proximity of the gas line and no residential in tile proximity. MR~ BUSSEt~C: Right. COMMISSIONER MULROY: okay. Thank you. MR. BIJSSELL: You're welcome. COMMISSIONER ROY: A question, sir. On the concept plan, I believe I saw connectivity to the west. The drawing we have in our package, if' I'm reading it right, doesn't show that. MR. BUSSELL: TO the west? Actually them a~ dead-ended streets to the west and you see it on all the GIS information, and you can see it here, but it's not as clear. And I'll show you that in just a second. COMMISSIONER ROY: It was the one entitled concept, I believe. 1! 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 would just like to say that I would like for you to please consider the recoxmnendation of City staff to make tile joining of Wayne Street to go across to allow that buffer zone of sR-4 instead of going directly into high density there. People have lived in those neighborhoods since 1950 and many people still own their original homes. And I think it would be much more advantageous to those older people to maintain the integrity of the ncighborbood. Thank you very much. COMMISSIONER RISHEL: But 01{5 home you own in that area is a rental property; is that right? MS. SWAN: YeS, it is. COMMISSIONER RISHEL: okay. Thank you very much, Ms. Swan. Once again, this is a public hearing. Page 178 MR. BUSSELL: Right. There. Yeah, Tyler Street dead ends here. There is right-of-way here. Wayne Street dead ends here. COMMISSIONER ROY: Okay. And your plan is to provide that connectivity to the west. MR. BUSSELL: ~3y the subdivision ordinance, we would be required to extend those streets. COMMISSIONER ROY: Yes. It's just somehow not shown on the drawing we have. Thank you. MR. BUSSELL: Yes, sir. Any other questions? COMMISSIONER RISHEL: COlrnnissioners, any other questions of Mr. Bussell? Thank you, Mr. Bussell. This is a public hearing and anyone who would like to either speak for or against Item No. 16 on our Agenda, would you please come forward at this time. Would you please come forward at this time? Would you give us your name and address? MS. WELLS: Maurine Wells. I own the house on the dead-end street of Wayne that he's extending tile street on in. Right here. And there's no buffer zone there. And he's proposing making this NR-6 when the other is NR-4. ^nd I'm opposed to the increase in density there. COMMISSIONER RISHEL: okay. Thank you very 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Page 180 Anyone else who would like to either speak for or against this item on our Agenda, would you please come forward? MR. KLINE: chairman, my name is Tonuny Kline. I reside at 12311 Marbrook. I'm with S^S Properties and we'll probably be doing some of the development on this property. I just wanted to say that our intent between the 4 and the 6 was not purposely for density. It's working around what the elements of the land have. I mean, we're going a little bit -- we're in that in between 4 and 6, but we will not achieve anywhere near what the NR-6 would allow. s^s has worked, I think, with the City up to this point very well. In fact, when Nottingham was put in and the drainage easement, sas gave that -- dedicated that to the City as an act of just good neighbors. They saw the benefits of having Nottinghmn come through there and that linking the City. But the layout purposes of the 6 size lot would be beneficial for the development of this particular piece of property. It's not n¢ccssarily just to gain density. Thank you very much. I'll answer any questions that you might have. COMMISSIONER RISHEL: We have some questions. Cormnissioner Holt. PLANNING AND ZONING COMMISSION MARCH 13TH, 2002 Page 177 - Page 180 Condens¢ItTM Page 181 1 COMMISSIONER HOLT: Yes. Have you 2 considered putting that strip on that what do you call it 3 -- west side into NR-4? 4 MR. BUSSELL: could I just address that 5 real quick? The down side to do that would be that you 6 would develop those lots, Instead of putting the density 7 outside the trees, you would develop the trees. That's 8 the down side to creating that 100-foot, 120-foot buffer. 9 MR. KLINE: We actually have -- we'll have 10 a path right there to go into the trees and come out on 11 that end and the only place to buffer would be right there 12 and right there. And i think we could agree to give -- I 13 mean, I don't have a problem with putting an SF-4 -- 14 excuse me, I'm used to saying SF-4 but, excuse me, 4 size 15 lots right there in that little node there and even right 16 there if that's a problem. That's the only place we have 17 lots butting up against them. There's really not that 18 much difference in those size lots and that size lot. The 19 houses on these lots will be bigger than these houses, 20 larger in square footage size. Does that answer your 21 question, ma'am? 22 COMMISSIONER HOLT: Yeah. It just seems 23 like there's the buffer of the nice tree stand up there, 24 then the buffer kind of -- and there's going to be a walk 25 or a trail or something in there. 1 2 3 4 5 6 7 8 9 10 1 2 3 4 15 t6 17 18 19 20 21 22 23 24 25 Page 183 1 and you guys have gone through Chapter 13 and seen the 2 requirements of the new single-family homes and those new 3 requirements am much higher than they used to be, 4 And so I really don't think the buffer is 5 required. I think the -- I think working with the natural 6 elements out there is required and I think that's required 7 under the new Code as a site plan review. 8 COMMISSIONERRISHEL: commissioner Apple. [} COMM[SSIONF~ APPLE: YOU said that the 10 homes would be actually larger in square footage than the 11 ones that they're abutting, Like what range are you 12 thinking? 13 MR. KLINE: what they're building now on 14 that size lot is from about 1,650 to 2.200 feet. 15 COMMISSIONER APe[E: okay. And could I 16 address the two people, Mr. Chair? Could I address the 17 two people who spoke? And I'd just be curious if that 18 would make a difference if they knew that the homes were 19 going to be larger as opposed to just the land being 20 larger, if that would make a difference in how you 21 feel? 22 COMMISSIONER RISHEL: why don't you come 23 forward for us? Why don't you both come forward? 24 COMM£SS[ONER APPLE: I'lFl $0 $O1T~ to make 25 you come back up but I'd really like your feelings since Page t 82 MR. KLINE: Right. Right there going through -- these are beautiful standing trees. They're gorgeous. COMMISSIONER HOLT: oh, I know. I go down that new street all the time. ~t's beautiful back in there. But I just think down at thc bottom and up at the top, it would be nice to have a buffer of some kind since there's nothing. And if you could put those down to NR-4S, that would be nice. But I don't want to do anything to the trees, MR. KL£NE: I mean, I think we're trying to provide something that it works for everybody. I mean, these people were not at the neighborhood meeting but I 1 2 3 4 5 6 7 8 9 10 11 12 13 Page 184 you shared that sentiment. MS. WELLS: That would make a difference to me. I just want it to be a nice neighborhood. COMMISSIONER APPLE: okay, So the size of the lot -- MS. WELLS: I was really conc~rrilqd about the multi-use apartments and that type of thing. As long as there's not so much traffic, increased traffic and the houses are nice. COMMISSIONER APPLE: okay. So the larger homes would make you feel better about the size of the lots. And what do you think? MS. SW^N: I just wanted yOU to know that don't think that my owners would have a problem putting an SF-4 size lot there or maybe increasing those two right there, if that's a real problem. MR. BUSSELL: Ithink there's another issue here that might be the reason the buffering is thought that it's required, and maybe it's traffic. I don't know. But I don't envision any traffic going the other way. It's all going to go south and then out. If anything, we're going to be receiving traffic from them, not to thmn because there's not another major road to the west. It's all to tile east. You know, these are going to be houses developed under the new Code 14 15 16 17 18 19 20 21 22 23 24 25 the reason we weren't at the neighborhood meeting is we never received a notice. And thc people who sat next to us for all evening had to leave because they have to rise early in the morning and they found out through another neighbor and they never received a notice either. So I think that more people would have talked to the developers and owners had we known. We only received tile notice from thc City. COMMISSIONER APPLE: we]l~ would you answer my question about do the larger homes make you feel better about the size of the lot? Ms. Sw^N: Yes, it does. It does. I was PLANNING AND ZONING COMMISSION MARCH 13TH, 2002 Page 181 - Page 184 CondenseItTM Page 185 1 concerned because we're -- where they're proposing Wayne 2 Street coming across at the bottom, that has all been 3 opened for years and years and years. And I was concerned 4 when I didn't see any trees or anything nice coming down.. Page 187 1 with all of these trees, are these going to be groomed in 2 any way? 3 MR. KLINE: well, we would thin out the 4 underbrush but it would be pretty much a natural area with 5 If they just go through that with a street and I didn't 6 understand why they didn't bring trees or a buffer or make 7 bigger lots or do something to make that more pleasing or 8 nicer like they're proposing doing on up further. Can 9 anyone answer that? 10 COMMISSIONER APPLE: well, I think -- well, 11 those trees are existing is the point. They're salvaging 12 those trees. Those trees are in existence. They're not ! 3 going to put those in. And they've worked their 14 development around saving those tn:es so that -- that's my 15 understanding. 16 MS. SWAN: well, would they agree, if they 17 didn't make the lots larger, would they agtm to plant 18 trees? 19 COMMISSIONER APPLE: well, our landscaping 20 requimnents wilt address that. But I guess your answer 21 ~o my question is knowing that those are going to be 22 larger homes would make you feel a little bit better about 23 that the lots are smaller but the homes might be nicer. 24 Does tbat sound fair? 25 MS. SWAN: Yes, 5 a walkway through it. I mean, we're just going to cut, 6 thin it under the underbrush but pretty well leave it 7 natural. 8 COMMISSIONER KEITH: Okay. I mean, is it 9 going to be maintained by anybody? 10 MR. BUSSELL: I want to make sure that 11 everybody understands it's a concept plan. It just makes 12 sense for this to be open over there. 13 COMMISSIONER KEITH: Yeah. I mean, there's 14 nothing wrong with the trees. I'm just -- 15 MR. BUSSELL: But a homeowner's association 16 would have to preserve these. It wouldn't be a public 17 park. 18 COMMISSIONER KEITH: okay. I was just 19 curious how they were going to be maintained. This isn't 20 part el` the ~SA, is it? 21 MR. BUSSELL: NO. Well, it's mapped as 22 such but it's incorrectly mapped. 23 COMMISSIONER KEITI-I: Okay. Thank you. 24 COMMISSIONER RISHEL: conunissioncr Roy. 25 COMMISSIONER ROY: Yes, As the developer, Page 186 1 COMMISSIONER APPLE: That would make you 2 feel a little more comfortable if' -- okay. Thank you. 3 MS. SWAN': To preserve the integrity of the 4 neighborhood, yes. 5 COMMISSIONER APPLE: Thank you very much. 6 COMMISSIONER RISHEL: cormnissioner Keith. 7 COMMISSIONER KEITH: Thank you. A question 8 of the -- I'm sorry. What's your name again, sir? 9 MR. KLINE: Tmmny Kline. 10 COMMISSIONER KEITH: Yes, Mr. Kline. I 11 just ran the numbers, you say t,650 to 2,200 square feet, 12 it would run about $72.00 a square foot. 13 MR. KLINE: Actually, they have one that's 14 just a little bit small -- a little bit less than that and 15 go up to about $90.00 a foot. These volume builders, 16 where they make their money is in the design center. 17 COMMISSIONER KEITH: Yeah. Welt, I'm just 18 trying to get an idea for these ladies here, knowing that 19 the houses going in are going to be ranging in the 20 $118,000.00 plus then, if kind of what I'm looking at on 21 that. And so that's going to really be a plus. 22 MR. KLINE: I don't want to put a dollar 23 figure on it. 24 COMMISSIONER KEITH: Yeah. I'm just i 25 getting a swag. And the second question I would have is Page 188 1 did you bring along any typical housing, what the houses 2 would look like in these areas? 3 MR. KLINE: NO, sir. I haven't -- 4 COMMISSIONER ROY: Haven't got that far? 5 MR. KLINE: My development is all vertical. 6 I don't do anything horizontal. 7 COMMISSIONER ROY: All right. Anybody else 8 bring along because sometimes they bring it along and it 9 helps the neighborhood understand. 10 MR. BUSSELL: I think -- once again, I 11 think the Development Code in Chapter 13 really defines 12 what the houses, the features that the houses must have. 13 We're at the zoning stage and we're not anywhere close to 14 the development stage yet so we don't have anything like 15 that. 16 And to be honest, I don't think anybody t7 around here makes stuff like that yet. And so it's going 18 to be exciting to see the designs of these homes. 19 COMMISSIONER RISHEL: commissioners, any 20 further questions of the petitioner? Any further 21 questions? Okay. I just want to recheck myself, I think 22 I've closed the public hearing. And if I haven't, we will 23 close it at this time. Commissioner Powell. 24 COMMISSIONER POWELL: Mr. Chairman, I would 25 move to recommend to City Council the rezoning of PLANNING AND ZONING COMMISSION MARCH 13TH, 2002 Page 185 - Page 188 CondenseItTM Page 189 i approximately 54 acres as proposed by the developer. 2 COMMISSIONER MULROY: second. 3 COMMISSIONER RISHEL: It'S bccn moved by 4 Commissioner Powell and seconded by Conunissioner Mulroy 5 that we accept the development as proposed. Any further 6 discussion? Commissioner Roy. 7 COMMISSIONER ROY: I noticed t.h~re's no 8 recommendation from staff but, for the record, I'd like to 9 read in that it says the proposed development is 10 consistent with the Denton Plan. l 1 COMMISSIONER RISHEL: Thank you, 12 Commissioner Roy. Any further discussion, clarification? 13 Seeing none, please vote. Motion carries %0. 5~rt, future discussion i~ns? Commissioner Apple.j 19 A~s~in essence, tell 5 6 7 8 9 10 I2 13 14 15 i6 t7 18 20 25 tge that she had been annexed because her statement was when annexed -- this was my understanding -- when that was they told us that it was to protect us of things. MS. VIERA: she is in the ETJ. U~. POWELL: If I may, that ~osed to be annexed but they So it was pro] annexed. thinks she was her tax bill. to be annexed -- Mr. Snyder annexation. maybe she just wait till she gets said she did that would if you don't ~ . vms: sure. This is a ors and [s what we go by for understanding that she lives right in red line shows the City boundaries so and, see, she lish by The COMMISSIONER APPLE: And I appreciate that and I'm aware of that for her, but it did say 11 notices were sent with no responses, and that's real unusual, this was :oherent history, an estimated project schedule, important ancial, any appropriate financial information, a list 2 tual attachments so you knew what was to follow. 3 4 if had concerns, that's where you get the meat 4 5 need surf's input, then you read the 5 6 tysis, based on that, 6 7 our job. 7 8 An ust wanted to thank star 8 9 ~y me to read and it so concise. I 9 10 it. 10 11 The only ~ther comment 11 12 and I guess I would like maybe check because 12 13 we had two different group s, tonight say that 13 14 they weren't notified. And Deborah said that she 14 15 would get us : those t i went 15 16 to. And ting to before that 16 17 ended but I'll take any point. But ~ just 17 18 ~ve have had problems otifications 18 19 in the past at ust wondered what was 19 20 that. 20 21 ff I may, actually that lady 21 22 lives fide the City limits. The Sure law requires us 23 . within the City limits and within 200 feet of 24 property. 25 COMmiSSIOnER ^PeLn: well, she indicated 25 in that ama, that we don't hear back. So if ust scl that list of who they went to and if them all back or if thc people signed and I would really like that information. MS. mgRn: Sure. No problem. )MMISSIONER APPLE: Thank~ RISHEL: SSIONER ROY: thc enthusiasm t been format which I der Maybe I just missed Powell, have you also City Council MR. crux of it. Council. But x ~ oliunen Roy. share . about the new of beforehand. like to ask Director giving recommendation to the action? that's somewhat the lotions to City on You're ~g body to the Cit~ and your is what they sec. see the hear the and so they also have but it s not tho staff recommendation, 5. COMMISSIONER RISHEL: COMMISSIONER KEITH: okay. Thank Along with Comanissioner Apple, continuation of topic, what I had a little concern also is when you got on PLANNING AND ZONING COMMISSION MARCH 13TH, 2002 Page 189 - Page 192 S :\Om' Docmnen*s\Ordinonces\02~Z02 0002.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A ZONING CHANGE FROM NEIGHBORHOOD RESIDENTIAL 3 (NR-3) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION TO NEIGHBORHOOD RESIDENTIAL MIXED USE (NRMU), NEIGHBORHOOD RESIDENTIAL MIXED USE 12 (NRMU-12), AND NEIGHBORHOOD RESIDENTIAL 6 (NR-6) ZONING DISTRICT CLASSIFICATIONS AND USE DESIGNATIONS FOR APPROXIMATELY 52 ACRES OF LAND GENERALY LOCATED SOUTH OF MINGO ROAD, EAST OF MOZINGO STREET, NORTH OF LATTIMORE STREET AND NORTH AND EAST OF AUDRA LANE; PROVIDING FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY CLAUSE AND AN EFFECTIVE DATE. (Z02-0002) WHEREAS, Sent Corp, on behalf of SAS and Associates, initiated a change in zoning for approximately 54 acres of land from Neighborhood Residential 3 (NR-3) zoning district classification and use designation to Neighborhood Residential Mixed Use (NRMU), Neighborhood Residential Mixed Use 12 (NRMU-12), and Neighborhood Residential 6 (NR-6) zoning district classifications and use designations, with the intent to develop single -family, multi-family and neighborhood office and retail development; and WHEREAS, on March 13, 2002, the Planning and Zoning Commission after concluding a public hearing as required by law, recommended approval of the requested change in zoning; and WHEREAS, the City Council finds that the change in zoning is consistent with the Comprehensive Plan; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The zoning district classification and use designation of the approximate 34.2 acre property described in the legal description attached hereto and incorporated herein as Exhibit A is changed from Neighborhood Residential 3 (NR-3) zoning district classification and use designation to Neighborhood Residential 6 (NR -6) zoning district classification and use designation under the comprehensive zoning ordinance of the City of Denton, Texas. SECTION 2. The zoning district classification and use designation of the approximate 9.5 acre property described in the legal description attached hereto and incorporated herein as Exhibit B is changed from Neighborhood Residential 3 (NR-3) zoning district classification and use designation to Neighborhood Reside nfial Mixed Use (NRMU- 12) zoning district classification and use designation under the comprehensive zoning ordinance of the City of Denton, Texas. SECTION 3. The zoning district classification and use designation of the approximate 6.6 acre property described in the legal description attached hereto and incorporated herein as Exhibit C Page 1 of 2 S :\Om' Docmnen*s\Ordinonces\02~Z02 0002.doc is changed from Neighborhood Residemial 3 (NR-3) zoning district classification and use designation to Neighborhood Residemial Mixed Use (NRMU) zoning district classifica fion and use designation under the comprehensive zoning ordinance of the City of Demon, Texas. SECTION 4. The City's official zoning map is amended to show the changes in zoning district classifications. SECTION 5. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 6. Any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION 7. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record -Chronicle, a daily newspaper published in the City of Demon, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 of 2 This page left blank intemionally. Agenda 02-013 04/16/02 #27 AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET April 16, 2002 Legal Department Herb Prouty, City Attorney SUBJECT: Consider and adopt an ordinance authorizing the City Manager to execute a Letter Agreement with TXU Gas Distribution agreeing on the form of notice to be published in the Denton Record-Chronicle notifying Denton ratepayers of the effect of the request for an adjustment of rates by TXU Gas Distribution in the North Texas Metroplex Distribution System rate case; and providing for an effective date. BACKGROUND: On March 1, 2002, TXU Gas Distribution (TXU Gas) filed their Notice of Intent to Increase Gas Rates in the North Texas Metroplex Distribution System. On March 5, 2002, City Council passed Ordinance No. 2002-073 which prescribed the form and the requirements of a notice to be published by gas utility service companies like TXU Gas in the Denton Record-Chronicle. The notice would inform citizens of the effect of this increase on residential and commercial ratepayers. TXU Gas appealed this ordinance to the Texas Railroad Commission. Since that time, the City and TXU Gas have been in negotiation to try to resolve any disputes over the Ordinance and the form of the notice to be published. TXU Gas has agreed to publish a notice, which would substantially comply with Ordinance No. 200g073. In return for TXU Gas's publication of the notice, the City would agree that it will not cite improper notice as a reason to alter the jurisdiction deadline or statutory timeframe for he North Texas Metroplex Distribution System rate case. The attached Ordinance would authorize the City Manager to enter into an Agreement with TXU Gas containing the terms indicated above. OPTIONS: The City Council can approve the Ordinance authorizing the City Manager to sign the Agreement. The City Council can reject the Ordinance and disapprove the Agreement. RECOMMENDATION: Staff recommends that Council approve the Ordinance. The Agreement as to the form of the notice will substantially a)mply with Ordinance No. 2002-073. This will provide local residents much better notice of the impact of the rate increase on local, residential, and commercial ratepayers. FISCAL INFORMATION: Passage of the ordinance will have no fiscal impact with the exception that TXU Gas may choose to pass through the costs of publication to the ratepayers. Respectfully submitted, Herb Prouty, City Attorney S:\Onr DocmmentskMiscellaneous\02\agenda infbrmarion sheer notice agreement, doc S 5Our DocumentsSOrdinances\02~notice agreement.doc ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A LETTER AGREEMENT WITH TXU GAS DISTRIBUTION AGREEING ON THE FORM OF NOTICE TO BE PUBLISHED IN THE DENTON RECORD-CHRONICLE NOTIFYING DENTON RATEPAYERS OF THE EFFECT OF THE REQUEST FOR AN ADJUSTMENT OF RATES BY TXU GAS DISTRIBUTION iN THE NORTH TEXAS METROPLEX DISTRIBUTION SYSTEM RATE CASE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, TXU Gas Distribution has filed a statement of intent to increase rates in 107 cities, including the City of Denton, known as the North Texas Metroplex Distribution System; and WHEREAS, on March 5, 2002, the City Council passed Ordinance No. 2002-073 setting forth the requirements for publication of a notice by each gas utility operating within the City such as TXU Gas Distribution to notify Denton residents of requested increased in gas rates; and WHEREAS, TXU appealed this Notice Ordinance through the Texas Railroad Commission; and WHEREAS, the parties wish to resolve any issues concerning the Notice Ordinance by entering into a Letter Agreement regarding the publication of that notice; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to execute a Letter Agreement, substantially in the form attached, with TXU Gas Distribution setting forth the requirements for publication of notice in the Denton Record-Chronicle under the terms of Ordinance No. 2002- 073 to notify Denton ratepayers of the effect of TXU's request for a rate increase in the North Texas Metroplex Distribution System. SECTION 2. EFFECTIVE DATE. This ordinance shall immediately take effect and be in full force and effect from and after the date of its adoption. PASSED AND APPROVED this the __ day of ,2002. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY RONi BEASLEY, MAYOR PRO TEM 1'3~U Ga~ D'merlb~den ~ Fa~214 ~12 ~r221 NO, P, 02 20(}2 Re: City o, fD~men Orn~ No. 2002.~7~ Cms D~mbut/oe C'Distr/~',) and me City of D~tou (th: "Ci~' or ~r~ to ~e t~s ~ the ~ f~ ~o ~~c w~ ~~ ~r ~c w~ n~ ~ ~ ~ ~~ by ~bu~ou S~ m~ ~ ~w~ ~ hy~o" ~ l, 2~2. ~~ ~ i~ rote ~e ~ed on 'M~oh I. 2002. A ~co ~A~s~aflvo H~ ~Y berg ~d befo~ ('~O~. ~ C~sofl~ Docket 04/11/02 ~I8~i8 YA~ ~148&00011 FaX NO, )ILLI~$ P. 03 ~oo~ Alrdl I 1, 2002 Page2 truly you~ G,~ DISIRtBUTION ACC~TED AND AOI~I~D TO CITY OY DRI~'OI% ~ By:. HKE-I~-~UU~ ~KI U~:44 EM FAX NO, P, 04 EXHIBIT '' ' 04/11/02 ~6:1~ ~AI 2148~00011 P, 05 ~o0~ NOTICE OF GAS RATE INCREASE REQUEST TXU Gas Diatmtbution (the "Corn an hereby gives notice of it~ Intent to Irnpl~enYt")~ in ao:ordance with the Gas UfilY~y- Regulatory Act, new schedule of ~ for natural gas service to be charged to all residential, ~mmemial and Industrial cuStomem in the North T~xas Metroplex Distribution Sysfem. The North Texas MetropJex Distribution System comprfses 107 dies including the City of Denton, The proposed revisions to the r~speetive rat~ schedules Will Impact Reside Commercial Service, Industria, Sa,e,, Industrial Tran,portab'on, 'ndu.trfal ntsitl~erv~ Transportation, Rate Adjustment Provisio _ . , Adjustment, Sumharges, add Unto ,....,~,_n$.. Gas Cost Adjustment, ,,~uuu,e r~ee. overy Adjustment, and Tax & Franchise Fee Charges _ Connection Charge, Read for Change Cha e. Retu Miscetleneou.$ eervice Notification Charge, Main Line Extensi Rat. = .... ~I - ... mad Check Char es, Detin n mow valve Charge, Certain Start-., ,~- - Generators, and ,,Charge for Temporary DiscontJDUance of Service. The proposed new ach ,e,c,I, uJe of rates will also eliminate, In the c~e$ In which they are In effect, the Weather Normal~zat/on Adjustment Clause, f.he cost of ..~rvJce Adjustment Clause and the Plant Investment Cost Adjustment Clause, the Rate $ohedule for Public Schools.N. Commemia! Contract Public Schools Rate and Mllttaty Rates-N, In addition, certain Industrial Rate Schedules (i~cJuding Industrial Rates-N) will be ¢lo~ed to new customem, The proposed rates am expected to produce a $33.8 mNlion er an 8.0i percent increase the Company's total annual revenues and 23.5 percent in~mase in base rate revenues from re~Identiul, comrnerc/al and industrial customers In the North Texas Metroplex Distribution System. The Company is Proposing to increase total annual revenues from residential and commercial customers located in the C~ of Denton by 12.5 pement and 9,0 Pement mspe~ively, The Increase In base rate revenues ~r residential and commercial customers In the City of, Denton is pement and 24.8 percent respecfiwly. A resid for 6 m~f would see .~.,.~.. .. ,. .... entiai customer in the City of Denton receiving a bill bill for 30 md woutd an I ..... ,~ -~ ~,.~..~u. A Comme~al cuatome~ in the City of Denton receiving a ~es an in~rease of approximately $5,64, A Statement of Intent to ohange rates wa~ fDed With each city in the North Texa_a Metroplex Distribution System en March i, 2002, The proposed effective date for the rate changes is April 2002. if You desire to comment concerning this change of rates or need additional Information concerning ~n/s gas rate Jncrease request, contact the Denton City Attorney's Office et (940) 34~- 8333. U^NDOUT TO COU~CtL C~ of Denton Po~ce and F~re Civil Service Information On Hiring and Promotions · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Table of Contents II. III. IV. V. VI. April $, 2002 Chapter 143 Overview ........................................................................... 1 Civil Service Commission ................................................................ 1 Civil Service Director ...................................................................... 1 Entry-Level Positions ............................................................................. 2 Examination Notice .......................................................................... Advertising. ....................................................................................... Civil Service Testing and Hiring Process ....................................... Promotions .............................................................................................. 8 Promotional Source Material and Examination Notice ............... 8 Promotional Testing ......................................................................... 9 Appeals .............................................................................................. 10 Promotional Bypass ......................................................................... 10 Challenges Associated with Chapter 143 ............................................. 10 Efforts to Overcome These Challenges ................................................ 11 Appendices A - Fire Recruit Job Description .................................................... B - Police Recruit Job Description ................................................. 14 C - Fire Department Recruiting/Hir'mg History .......................... 16 D - Police Department Recruiting/Hiring History ....................... E - Chapter 143 Civil Service Cities .............................................. 27 F - Recruiting Fairs and Activities ................................................. 28 Chapter 143 Overview The City of Denton became a Civil Service city under Chapter 143 of the Texas Local Government Code on August 10, 1948. To be classified as a Civil Service city, the city's population must be 10,000 or more, the city must have a paid fire and police department, and the citizens must have voted to adopt Chapter 143 of the Texas Local Government Code or the laws codified by the Chapter. The purpose of Chapter 143 is "to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants." To help ensure this, the chapter outlines the procedures associated with the following: classification and appointments including, but not limited to, eligibility requirements, examination notices and procedures for filling positions, compensation, disciplinary actions, leaves, and miscellaneous provisions including, but not limited to, personnel files, strike prohibition, determination of physical and mental fitness, efficiency reports, etc. Civil Service Commission A three-member Civil Service Commission is appointed by the Chief Executive Officer (City Manager) to oversee and ensure compliance with this chapter. The governing body (City Council) confirms the Chief Executive Officer's appointment. As outlined by Chapter 143, to be eligible to serve on the Commission, a member must: be of good moral character; be a United States citizen; be a resident of Denton, Texas, and must have resided in Denton for more than three years; be over 25 years of age; and not have held public office within the preceding three years. Commission members are appointed to serve staggered, three-year terms, with the term of one commissioner expiring each year. The City of Denton strives to ensure the Commission best reflects the demographics of the community and has been successful in this goal over the past several years. Commission meetings typically are held the third Thursday of each month. Civil Service Director Chapter 143 also includes a provision for a Civil Service Director. Section 143.012(a) states, "upon adoption of this chapter, the office of Director of Fire Fighters' and Police Officers' April5,2002 1 ~ Civil Service is established in the municipality. The Commission shall appoint the director. The director shall serve as secretary to the Commission and perform work incidental to the civil service system as required by the Commission...". The Director of Human Resoumes has traditionally served and currently serves as the Civil Service Director for the City of Denton. This report focuses on the City of Denton's hiring process for civil service police and fire positions. In particular, this report addresses how the process relates to Chapter 143 and the requirements set forth by the chapter, as well as the City's recruitment strategies and history. Entry-Level Positions Under Chapter 143 of the Texas Local Government Code, applicants for the Fire and Police Departments can only be hired from the eligibility list produced from a competitive written examination. Since Chapter 143 specifies that an entrance examination must be given, in order to be in compliance, the City of Denton has elected to use an outside agency to develop the written examinations for Fire and Police entry-level positions. 143.025. Entrance Examinations (a) The commission shall provide for open, competitive, and free entrance examinations to provide eligibility lists for beginning positions in the Fire and Police Departments. The examinations are open to each person who makes a proper application and meets the requirements prescribed by this chapter. An eligibility list for a beginning position in the Fire or Police Department may be created only as a result of a competitive examination held in the presence of each applicant for the position... Pursuant to section 143.025(i), "...each applicant's grade on the written examination is based on a maximum grade of 100 percent and is determined entirely by the correctness of the applicant's answers to the questions. The minimum passing grade on the examination is 70 percent. An applicant must pass the examination to be placed on an eligibility list." Examination Notice Section 143.024(a) states, "before the 10th day before the date an entrance examination is held, the Commission shall cause a notice of the examination to be posted in plain view on a bulletin board located in the main lobby of the city hall and in the Commission's office. The notice must show the position to be filled or for which the examination is to be held, and the date, time, and place of the examination." The City of Denton makes every effort to ensure this notice is posted at least 30-60 days before the exam date. The notice is posted at the main City Hall and City Hall East. The Commission does not have an office, but the Civil Service Director who supports the Commission is located in City Hall East. Additionally, the "notice of examination" is posted AphiS. 2002 2 ~ · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · in the lobby of the Police Department and at the fire stations. Recently, notifications of examinations have been posted on the City's website. Advertising The Human Resources Department advertises for the entry-level positions using several mediums to attract a wide-variety of qualified applicants. In the previous year, these advertising mediums have included: City of Denton website, Denton Record Chronicle, Local Government Cable Access Channel 26, Employment News (Newspaper), Dallas Weekly (Newspaper), E1 Sol Dallas (Hispanic Newspaper), and Radio KRVA. Civil Service Testing and Hiring Process The Human Resources Department partners with the appropriate department to coordinate and .administer the civil service testing process. In general, the Human Resources Depamnent is responsible for establishing deadlines for receipt of applications and related materials (i.e. DD-214, educational transcripts, etc.), mailing applications, receiving and logging the applications into the Human Resources computer system, and preparing applicant files. After the closing date when all applications have been logged, the respective Civil Service department sends a representative to review the contents of each applicant's file to ensure all required information has been received and to ensure each applicant meets the eligibility requirements (reference appendices A and B). If it is determined that an applicant does not meet the department's hiring standards, the applicant is sent a letter stating that they do not meet the minimum department hiring standards. The Human Resources Department has used approximately three different tests for Fire and Police entry-level examinations over the last fourteen years. The Wollack and Associates' examination has been used for Fire Recruit exams since 1988. In 1997, however, the Fire Department switched to a different examination offered by Wollack that included a study guide for test candidates. It was the intent of the City to provide the study guide as a tool to enhance the test taking skills of the candidates by providing sample questions and preparing them for the examination format. Additionally, the Police Department used the Wollack examination for Police Recruit entry- level examinations for approximately two years in the early 1990's. However, it was determined that the International Personnel Management Association (IPMA) had developed an examination that included a study guide for the candidates' use and contained information April 5, 2002 more relevant to the different aspects of public safety testing. The Police Department still uses IPMA's examination. Each test developing company has standards for creating their examinations. For example, IPMA develops their Police Recruit entry-level examination based on a job analysis and policies and standards from municipalities. A sample test is distributed to incumbents currently in the position to be tested. After the examination is scored, a representative from the test developing company discusses the test taker's performance on the job with the test taker's supervisor. Based upon the results of the test and the interview, the validity of each question is determined. (Source: Kelli Sheets, IPMA, April 4, 2002) On the day of the test, all applicants must display valid picture identification at check-in at the testing site. Failure to display valid picture identification disqualifies the applicant from testing. All applicants must be on time. Failure to check-in prior to the posted start time will disqualify the applicant from testing. After the Civil Service exam has been scored on-site, the Human Resources Department establishes an eligibility list that is presented to the Civil Service Commission for approval at the next scheduled Civil Service Commission meeting. In the event that candidates are tied with identical scores, the respective department will apply specific criteria, as outlined in the chart below, to rank the order of applicants. The chart below also compares and contrasts each department's process after the written exam has been administered and the eligibility list has been established. Police Recruit Examination March 9, 2002 Texas Woman's University MCL Auditorium · · · 0 · · · · · · · · · · Tie-Breakers 1. Certification with or certifiable by the Texas Commission of Fire Protection. Burden of proof is with the applicant 2. Certification of licensing as an Emergency Medical Technician - Paramedic (EMT-P) by the Texas Department of Health 3. Certification as an Emergency Medical Technician (EMT) - 1. Prior law enforcement experience plus certification in the State of Texas. 2. Certification in the State of Texas 3. Certification in another state 4. Experience gained through study in professional areas of expertise as demonstrated by completion of degree requirements. (i.e. Bachelor's, etc.) April 5, 2002 4 ~ Ap615,2002 Tie-breakers, cont. Basic by the Texas Department 5. Current enrollment in a Texas of Health certified Police Academy 4. Raw score on exam (score 6. Experience as a Texas Police before any military points are Reserve Officer added). 7. Military Police experience 5. Possession of a Bachelor's 8. Military Reserve Police experience degree 9. Social Security number with the 6. Possession of an Associate's number one (1) being the highest degree number 7. Bilingual 8. Applicant with the earliest stamped time of application Physical Agility The Denton Fire Department requires No physical agility test is required for Test that all applicants pass a physical Police Recruits. agility test administered by department personnel at a designated facility. This test is comprised of: 1. Tower climb-body drag: time limit = five (5) minutes 2. Hose hoist: time limit = fit~een (15) seconds 3. Hose drag: time limit = twenty (20) seconds 4. Ladder climb: time limit = one (1) minute and forty (40) seconds 5. Beam walk: time limit = five (5) seconds The applicant must pass all five (5) sections of the physical agility test before the expiration of the one (1)- year probationary period. Progress will be monitored to guarantee the Recruit Firefighter passing the physical agility test during the probationary period. Behavioral No B-PAD is given for Recruit The top three applicants for each Personality Firefightem vacant position participate in the B- Assessment Device PAD assessment that is scored by a (B-PAD) panel of three department certified B- PAD raters. Background Afl[er requesting and receiving names Afl[er requesting and receiving names Interview from the Director of Civil Service, the from the Director of Civil Service, the Background Investigator will review background investigator will review the personal history of the highest all of the required materials provided listed applicant to ensure the applicant by each applicant in preparation for has met the minimum standards the interview. The applicant's driving established bythispolicy, record, criminal history, and credit history are examined as well. The applicant is interviewed regarding the Background accuracy and details of the information Interview, cont. provided by the applicant. Documentation of or admissions by the applicant of incidents that do not meet the hiring standards will result in either a temporary or permanent disqualification. The Texas Commission on Law Enforcement Officer Standards and Education requires a background interview on all candidates. Background The background investigation will The background will conform to the Investigation conform to the current procedures set current procedures set forth by the forth by the Denton Fire Department Denton Police Department at the time at the time of consideration. All areas of consideration. All areas of an of an applicant's personal history will applicant's personal history will be be examined to determine a person's examined to determine a person's suitability for a position as a Recruit suitability for a position as a Recruit Firefighter. Due to time restrictions, Police Officer. adjustments in the order of professional testing may occur for the The Texas Commission on Law benefit of the department; however, Enforcement Officer Standards and any changes in chronology will not Education requires a background aid or detract from the qualifications check on all candidates of the applicant, or his/her opportunity for employment. Chief Interviews After successful background Chief interviews are not conducted investigations, candidates will be with Recruit Police Officers. interviewed by the Fire or Division Chief before proceeding to the next step. Polygraph The highest listed applicant will be The top three applicants for each Examination required to fill out a polygraph vacant position will be required to fill questionnaire and the Training Office out a polygraph questionnaire and the will assist in scheduling a date for the Personnel/Training Office will polygraph examination and providing schedule the polygraph examination notification to the applicant, and provide notification to the applicant. Oral Review Board The highest listed applicant will then The top three applicants for each present himself/herself before an Oral vacant position will then participate in Review Board composed of Fire an Oral Interview Board consisting of Department personnel, a four departmental officers representing representative from the City's Human various ranks and assignments. Each Resources Department, and, if member of the Board will rate each possible, a community member. Each applicant on his/her acceptability for member of the Board will rate the employment based on a prescribed applicant on his/her acceptability for rating scale. employment based on a prescribed rating scale. · · · · · · · · · · · · · · · · · April 5, 2002 6 ~ · · · · · · · · · · · · · · · · · · · · · Psychological 1. The Training Office will schedule 1. The Personnel and Training Testing interviews and testing with a Office will schedule an interview psychologist for each applicant and testing with a psychologist for under consideration, the highest listed applicant. 2. An applicant must achieve 2. The applicant must achieve minimum standards in the testing minimum standards in the testing and interview which allows the and interview which allows the psychologist to certify him/her, psychologist to certify him/her. 3. If an applicant receives a negative 3. If an applicant receives a negative finding on the psychological finding on the psychological examination and interview, he/she examination, he/she may appeal may appeal that finding to the that finding to the Civil Service Civil Service Commission in Commission in accordance with the accordance with the guidelines guidelines as established in Chapter established in Chapter 143.022 (c) 143.022 (c) of the Texas Local of the Texas Local Government Government Code. Code. The Texas Commission on Law Enforcement Officer Standards and Education requires psychological testing on all candidates. Physical The physical examination will The physical examination will Examination conform to the Denton Fire conform to the Denton Police Department requirements and Denton Department hiring standards. Each Fire Department Medical Standards. applicant will be required to undergo a Each applicant will be required to thorough health assessment, which undergo a thorough health assessment will include a drug screen. The testing which will include a drug screen. The professional(s) will review the results testing professional(s)will review the of the test with the applicant and results of the tests with the applicant determine his/her suitability for the and determine his/her suitability for position of Recruit Police Officer. the position of Recruit Firefighter. The Texas Commission on Law Enforcement Officer Standards and Education requires a physical test on all candidates. Application Review If at any time an area of concern has been identified by the Background Investigator, the application will be referred, through the chain of command, to the Fire Chief for review and disposition. Any decision regarding continued consideration or rejection will be final. Conditional Job If the applicant meets the If the applicant meets the Offer requirements he/she will be given a requirements, he/she will be given a written Conditional Job Offer that written Conditional Job Offer that conforms to the American with conforms to the American with Disabilities Act. Disabilities Act. · · · · · · · · · · · · · Each department's hiring process is based on the specific requirements of the jobs and is fairly standard when compared to industry procedures. Ap615,2002 7 Thcsc plcturcs dcpict some physical aspects of fire fighting. Chapter 143.023 (d) and (e) de£mes eligibility for beginning positions. (d) An applicant may not be certified as eligible for a beginning position with a fire department unless the applicant meets all legal requirements necessary to become eligible for future certification by the Commission on Fire Protection Personnel Standards and Education. (e) An applicant may not be certified as eligible for a beginning position with a police department unless the applicant meets all legal requirements necessary to become eligible for future licensing by the Commission on Law Enforcement Officer Standards and Education. The minimum standards required by the Texas Commission on Law Enfomement Officer Standards and Education for newly appointed officers are listed in the Texas Administrative Code, Title37, Part 7, Chapter 217, Rule §217.1. Cities are free to set hiring standards above those listed in this section, but they can not set their standards below the minimum established by the Texas Administrative Code. Promotions Chapter 143 also defines the eligibility for promotion and the process for filling promotional positions. Section 143.028(a) specifies "...a fire fighter is not eligible for promotion unless the person has served in that Fire Department in the next lower position or other positions specified by the commission for at least two years at any time before the date the promotional examination is held...". Section 143.028(b) specifies "...a police officer is not eligible for promotion unless the person has served in that Police Department in the next lower position or other positions specified by the commission for at least two years immediately before the date the promotional examination is held...". Promotional Source Material and Examination Notice For promotional exams, the Commission must post a notice that lists the sources from which the examination questions will be taken at least 90 days before the examination date. Additionally, a "notice of examination" must be posted at least 30 days before the examination date. This notice must be posted in plain view in the main lobby of City Hall and in the Commission's office. The Commission shall also furnish sufficient copies of the AprilS, 2002 8 ~ · · · · · · · · · · · · · · · · · · · · · · notice for posting in the stations or sub departments in which the position will be filled. These postings are posted in the same locations as the entry-level notice of examination outlined earlier in this report. Promotional Testing Fire Department Each year prior to the promotional tests, the Support Division Chief presents a list of source materials for approval to the Fire Chief that he deems to meet the job requirements for each position. The list for each position is then sent to the Civil Service Commission for review and approval at least 90 days prior to the scheduled promotional test. After approval, fire administration posts the source materials list at each fire station and ensures that all source materials are readily available to all Fire Department employees. Each year, the Fire Chief and Support Division Chief review the source materials for each position to ensure all materials are still relevant and up to date. The Fire Chief closely examines the job descriptions for each position being tested. He sets priorities for what he expects each position to know. Based on the number of source materials, he establishes how many questions from each source he will write. This breakdown is then posted for all participants to review so they will know how much weight each source will carry on the examination. Based on the priorities of each job, the Fire Chief writes a 100-question examination. Previously, the Fire Department used an outside source to develop the questions for each test. However, due to the number of appeals on each test, Fire staff decided to write the test questions in-house by the Fire Chief. The current Fire Chief has several years experience developing tests for college level courses which he taught. By writing these tests, the Fire Chief is able to ensure that the tests are relevant to the promotional requirements. In addition, if there are appeals, it is much easier to evaluate the challenged questions. A department level appeals process is conducted for all potentially appealable questions prior to the questions being presented to the Civil Service Commission for appeal. Typically, after an explanation for each appealable question is made to the promotional candidate, the process ends and the question is not appealed to the Commission. If a candidate can prove that the official answer to the test question is incorrect, that particular question is thrown out and the test results are adjusted for all candidates who took the examination. If the department's appeal process does not successfully resolve the issue, the promotional candidate may then appeal the question and it's answer to the Commission. The Commission is informed that a department level appeals process occurs prior to the appeal to the Commission. Police Department The Police Department's promotional process is different from the Fire Department's promotional process. The Police Department uses an outside test developer. Justex Systems, April 5, 2002 9 'g~ Inc. has been used as the test developer since 1995. Prior to contacting the test developer, the Police staff provides a list of source materials to the Human Resources Department that they deem relevant to promotional positions. After the Commission approves the source material, the Human Resources Department sends the source material list to the test developer. The test developer sends several hundred questions from a database that are relevant to the requested source material. The Police staff reviews the questions and chooses the most relevant 100 questions. The selected questions are returned to the test developer in order to generate the test. Appeals Chapter 143 allows each promotional candidate the opportunity to review his/her examination and answers, the grading, and the source material for the examination. If dissatisfied, the candidate may appeal, within five business days, to the Commission for review. If any answers are changed or the Commission throws out questions, the scores are recalculated for all promotional candidates and the eligibility list is revised for the Commission's approval. Promotional Bypass Pursuant to section 143.036(0, "Unless the department head has a valid reason for not appointing the person, the department head shall appoint the eligible promotional candidate having the highest grade on the eligibility list. If the department head has a valid reason for not appointing the eligible promotional candidate having the highest grade, the department head shall personally discuss the reason with the person being bypassed before appointing another person. The department head shall also file the reason in writing with the Commission. On application of the bypassed eligible promotional candidate, the reason the department head did not appoint that person is subject to review by the Commission." Challenges Associated with Chapter 143 Being a Chapter 143 city provides some unique challenges to creating a diversified workforce that is reflective of the community. Although the City of Denton can aggressively recruit protected class individuals, the City cannot guarantee they will apply or show up at the test site. Additionally, the City cannot guarantee their placement on the eligibility list. Chapter 143 requires the City to begin the selection process with the applicant who scores the highest grade on the written examination. Denton's hiring process is often compared to other cities, many of which are not Chapter 143 cities and, therefore, are not required to follow the same procedures to which Denton is legally bound. A listing of Chapter 143 cities is included in Appendix E. A primary challenge for attracting qualified, protected class individuals is the competition from all federal, state, and local law enfomement and fire protective agencies as well as the public sector. Qualified, protected class individuals, especially those who are bilingual and/or hold college degrees, are actively recruited by agencies and businesses at all levels. Additionally, the applicant's personal preferences, coupled with issues such as relocating, 2002 make it difficult to recruit some individuals. Entry-level exams are typically given every six months. Scheduling conflicts with other local agencies, applicant responsibilities such as work or school, and travel costs may preclude or deter qualified individuals from attending the test. Those applicants who miss a test may find employment with other agencies before the next test is given. Similarly, the number of applicants the department can consider is directly related to the number of vacancies that exist. The more police officers or firefighters the departments can hire from any given eligibility list increases the chances that the percentage of protected class candidates will be considered for employment and, subsequently, hired. For example, fi'om 1995 through 1998, the Police Department was awarded 24 additional police officer positions through the COPS grant program. The department was able to hire four Hispanic males and three females who are still employed today. Appendices C and D contain additional protected class testing and hiring information. Efforts to Overcome These Challenges City of Denton Recruiting Banner... just one resource used at recruiting fairs to attract potential applicants. protected class individuals. recruiting fairs and activities. The City of Denton realizes the importance of ensuring that the make-up of its workforce is reflective of the community and values the benefits that a diverse workforce provides the organization and community. Because of Denton's sincere commitment to meeting this goal, the City has implemented an aggressive recruiting program. Representatives from Human Resources, Police, and Fire regularly attend career and job fairs at local events, colleges and universities, and high schools. Whenever possible, recruiters are chosen for assignments based on the targeted group. Recently, Fire dedicated some of its recruiting efforts to include local churches and establishments, especially those that target Please refer to Appendix F for a complete listing of the Another strategy employed to diversify the sworn workforce is the increase in civilian staffing of positions. Recruiting qualified, protected class individuals to fill these positions provides them more exposure to the Civil Service positions. Since 1996, one African- American male and one African-American female in the Police Department successfully made the transition from jailer to police officer. The Afl'lean-American male recently promoted to sergeant. Both departments use every opportunity to recruit individuals. Programs such as the Citizen's Police Academy, the Citizen's Fire Academy, the Citizen's Youth Academy (Police), and the Fire Explorer Youth Program provide individuals with knowledge about the overall operation of the departments. Though participants may not be interested in employment with the departments, they may have friends or relatives who they could refer for employment. April 5, 2002 The Police Department provides internship opportunities for local criminal justice students and several officers act as instructors at local colleges and police academies. Further, the Community Policing philosophy increases contact between officers and citizens and has increased officer participation in the activities of civic organizations. Because Fire staff has not been satisfied with the results of the intensive and extensive efforts to hire protected class individuals, in 2001 the Fire Chief requested that the City Council approve a Fire Department Diversity Task Fome to review the recruitment and hiring procedures. The task force was chaired by Davina Tomlinson (African-American) of the Human Resources Department and consisted of three African-Americans and three Hispanics from the community who were appointed by former City Manager, Michael Jez, and confirmed by the City Council. The task force met three times. The focus of the task force was to make recommendations to assist with attracting, recruiting, and hiring protected class individuals. The task force made several recommendations. Their key recommendation was that the focus of recruitment should shift from outside the community to the local level. April 5, 2002 12 · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Appendix A FIRE RECRUIT JOB DESCRIPTION The fundamental mason this classification exists is to protect life and property through flreflghting and EMS activities that are often performed under conditions requiring strenuous physical exertion. This is an entry-level flreflghting trainee position and is under the close supervision of a Fire Captain. MINIMUM QUALIFICATIONS: Age - A qualified applicant: 1. Must be at least eighteen (18) years of age. 2. Must not have reached his/her thirty-sixth (36th) birthday. Criminal Record - A qualified applicant will not: 1. Be on probation for any criminal offense above the grade of Class C misdemeanor. 2. Have been convicted of a Class A misdemeanor offense within the last twelve (12) months. 3. Have been convicted of a Class B misdemeanor within the last six (6) months. 4. Have ever been convicted of a felony offense. Driving Record - A qualified applicant must: 1. Reflect a mature responsibility toward his/her driving privilege. 2. Conform to the Department's standard for driving history. DWI History - A qualified applicant must: 1. Have no DWI convictions within last five (5) years. 2. Not be on suspension for a breath test refusal. Eo Education - A qualified applicant must: 1. Have earned a high school diploma or a GED. 2. Possess the ability to read, learn and understand the roles and regulations, policies and procedures governing the fncefighter's position. 3. Possess the ability to read and write the English language clearly and accurately. 4. Possess the ability to pass paramedic school. F. Moral Character - A qualified applicant must be of good moral character. Go Vision - A qualified applicant must: 1. Have vision correctable to 20/20 in both eyes. 2. Have normal color vision. April 5, 2002 Appendix B POLICE RECRUIT JOB DESCRIPTION The fundamental reason this classification exists is to protect life and property by enforcing state and local laws, responding to calls for assistance, and working with the community to solve problems. MINIMUM QUALIFICATIONS: Age - A qualified applicant: 1. Must be at least twenty-one (21) years of age. Applicants are eligible at eighteen (18) years old if they possess an Associates degree OR have completed 60 semester hours of credit from an accredited college or university OR possess an honorable discharge from the armed forces of the United States after at least two years (24 months) or active duty service. 2. Must not have reached her/his thirty-sixth (36th) birthday unless the applicant has at least five (5) years prior experience as a regular peace officer or five (5) years of active military experience. Even with this prior experience, must not have reached his/her 45th birthday. Criminal Record - A qualified applicant must pass an intensive criminal history background check and meet the standards set by the department. Driving Record - A qualified applicant must: 1. Possess a valid Class "C" driver's license 2. Meet the standards set by the department D. DWI History - A qualified applicant must meet the standards set by the department. Education - A qualified applicant must: 1. Have earned a high school diploma OR 2. Have a GED and has completed at least twelve (12) hours at an institution of higher education with at least a 2.0 grade point average OR 3. Possess an honorable discharge from the armed forces of the United States after at least 24 months of active duty service Licenses and Certificates - A qualified applicant must meet Texas State Peace Officer licensing requirements within one calendar year of the date of employment as required by the Texas Commission on Law Enforcement Officer Standards Education Vision - A qualified applicant must: 1. Have vision correctable to 20/20 in both eyes. 2. Have normal color vision. April 5, 2002 14 · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Other Skills and Abilities - A qualified applicant 1. Must have sufficient muscular skills and coordination to respond constructively to departmental training programs. 2. Must have the ability to maintain harmonious relationships with other employees and the public. 3. Must have the ability to communicate clearly and accurately. 4. Must have the ability to write and speak English legibly. April 5, 2002 Appendix C FIRE DEPARTMENT RECRUITING/HIRING HISTORY 1990: In 1990 no examination was given for Fire Recruit. 1991: In 1991, the examination was open to people at least 18 years of age with a high school diploma or GED. 225 candidates took the exam and four were hired from this list after litigation was brought by the Denton Fire Fighters Association on behalf of two people who were bypassed on the eligibility list because they were not certified. The Fire Fighters Association won the suit and the two candidates who were not certified were hired. 1992: In 1992, an examination was given and 223 candidates passed the examination of whom nine were hired. 1993: In 1993, an examination was given and 135 candidates participated of whom four were hired. 1994: In 1994, an examination was given and 185 people took the exam; however, no one was hired from this list. 1995 to 1996: Between 1995 and 1996, the City only considered certified or certifiable firefighters as eligible to take the annual test for recruit firefighters. Three tests were administered and averaged only 47 applicants per test with less than 5% representation of protected classes. Prior to the certified/certifiable role, the City averaged 162 applicants per test with an average of 24% of the participants being protected classes. Females 1995 African American 0 Hispanic 0 American Indian 0 Asian 0 9 April 5, 2002 16 33 0 · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ,1996 54 0 American Indian 0 0 0 Asian 0 7 On July 20, 1996, another examination was given testing only certified and certifiable firefighters. 55 passed the examination and two were hired from the list. The diversity numbers included one female, one Hispanic male, and one African-American male taking the test, but none of them scored high enough on the list to get a job. 1996 Females Hispanic American Asian Indian 55 1 1 0 0 African Am?can 2 The 1995/1996 testing/hiring philosophy met the City's immediate need at that time to place firefighters on the fire engines in the fire stations as quickly as possible. Hiring only certified/certifiable firefighters certainly reduced the time to have qualified firefighters on duty, which ultimately saved the City substantial money and expedited the reopening of a needed fire station (Central in April of 1996). In that aspect, the goal was met. However, no protected class applicants were hired in the process and very few even took the tests. It was very apparent that requiring certification prior to employment greatly reduced the chances for hiring protected class members. 1997~ In 1997, based on the recommendation of the Fire Chief, the City Council and Civil Service Commission changed the eligibility requirements for recruit firefighter to 18 years old and a high school graduate. The recommendation was made based on the fact that, in a civil service system, the first step to getting protected class individuals hired is to assure a strong representation at the test. At a minimum, there must be a good cross section of our community at the test just to give target groups a chance to place high enough on the list. If they are under~epresented at the test, it is likely, due to the laws of probability, that the majority group will top out on the test. In addition, recruitment efforts were hampered with the certified/certifiable rule because it eliminated a good portion of the target groups for recruitment. April 5, 2002 Two examinations were given in 1997, returning to the criteria of 18 years old and a high school diploma or GED. Although diversity numbers improved significantly, no protected class applicants scored high enough to be hired from the list. ,1997 Females Affic~ Hisp~ic ~efic~ Asi~ ~efic~ hdi~ 224 14 7 11 4 0 1 Females African Hispanic American Asian American Indian 150 8 9 10 5 0 4 1998: In 1998, an examination was given to 219 candidates, with no protected class applicants scoring high enough to receive a job offer. March1998 Females A~c~ Hisp~ic ~efic~ Asi~ ~efic~ hdi~ 219 13 7 10 3 0 2 · · · · · · · · · · · · · · · · · · · 1999: The Fire Department, in conjunction with the Human Resources Department of the City of Denton, mapped out a strategy for improving the recruitment of protected class individuals for the Fire Recruit Civil Service Examination to be held on February 13, 1999. It was decided to have examinations in Denton and Marshall, Texas, that would be given at the same exact time. The place for the examination in Marshall, Texas, was Wiley College, a Aphl 5, 2002 historical African-American College. The college had the facilities and agreed to facilitate the exam. A recruiter was on campus in October and again in the month of December 1998. The recruiter spent two days on campuses at TWU and Wiley College in the cafeteria with the goals off handing out brochures; speaking with youth concerning a career in the fire service; obtaining information from potential candidates so Human Resources could mail applications and study guides to them for the examination; and, giving out information concerning the number of career opportunities, salaries, work schedules and benefits of being an employee of the City of Denton. This special effort also included trips to the Corpus Christi, Kingsville Campus of Texas A&M. The Texas A&M at Commerce was visited along with Prairie View A&M, Southeastern Oklahoma at Durant, Oklahoma, and Southem Arkansas in Magnolia, Arkansas. The recruiters also went to the Texas EMS Conference in Austin, SACUPA (San Antonio area recruiting event), and other local area recruiting seminars. The University of North Texas Campus Diversity group gave us a list of predominantly African-American schools. This list included Texas College in Tyler, Jarvis Christian College in Hawkins, Grambling in Ruston, Louisiana, and Southern University in Shreveport, Louisiana. We recruited at these colleges. The results of this effort were not evident at the test site in Marshall as only 53 people showed up to take the test. The number of African-Americans that responded was 37. In a sense, the recruiting effort was successful because 581 people were present at the exam in Denton. In Marshall, no African-American applicant made over a score of 89 and, therefore, had no impact on the list. In October 1998, sixteen people were hired. In February 2000, using the February 1999 test list, twelve more people were hired but none scored below 93. Among the 28 new fire recruits hired from this large list, one was a female. '1999 634 581 (Denton) 53 (Marshall~ Females African Hispanic American 33 36 46 American Asian Indian 4 0 28 (1 female) 2OOO: In 2000, two examinations were administered, one in February and one in September. 377 took the exam in February and two were hired with one being a female. Then in September, 271 took the exam and two were hired - one American Indian and one female. April 5, 2002 1 9 ~ ,2000 Females A~o~ Hisp~ic ~cfic~ Asi~ ~efic~ Ndi~ 377 N/A N/A N/A N/A N/A 2 (1 female) · · · Females A~c~ Hisp~ic ~efic~ Asi~ ~edc~ hdi~ 271 14 5 12 3 0 2 (1 female ~d 1 ~efic~ hdi~) · · · · · · · · 200'1: The Fire Department Diversity Task Force met three times in early 2001 and made several recommendations to assist the Fire Department to recruit and hire protected class individuals. Their key recommendation was to focus more recruiting locally, rather than go outside the community. Based on that recommendation, the Fire Department almost exclusively recruited in the Denton area to prepare for the 2001 test. Based on the input fi.om the Diversity Task Fome, the Fire Department met with local church groups, recruited at local retail outlets to get the word out to these target groups, worked with the local universities, and recruited at all the City's Neighborhood Recreation Centers. This test provided the first opportunity to hire a Hispanic. Females A~c~ Hisp~c ~edc~ Asi~ ~efic~ Ndi~ 323 19 13 23 4 0 3 (1 Hisp~c) April 5, 2002 20 ~ · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · Appendix D POLICE DEPARTMENT RECRUITING/HIRING HISTORY At the time this report was prepared, the actual number of applicants hired from each test could not be confirmed; however, the diversity make-up of those tested is included. 1990: In 1990, an examination was given on September 15 and March 17 for Police Recruit. 1991: In 1991, an examination for Police Recruit was given in May and 115 took the examination with 69 people passing. The protected class representation was 17.4% of those taking the examination with 10% of protected class applicants passing. Additionally, another Police Recruit examination was given in November. 1992: A Police Recruit examination was given on May 22. 1993: A Police Recruit examination was given in November and 120 persons took the examination with 95 persons passing. Protected class applicants represented 19% of those taking the examination. November 1993 Females African Hispanic American Asian American Indian 120 6 6 9 2 0 1994: A Police Recruit examination was given in May with 134 people taking the examination and 108 persons passing. April 5, 2002 21 '~ ,1994 Females African Hispanic American Asian American Indian 134 11 3 13 6 0 1995: A Police Recruit examination was given in May and 147 persons took the examination with 116 persons passing. Ma 147 16 11 10 3 3 In November another examination was given with 102 applicants testing and 85 passing. Thirty-four protected class applicants passed the examination. November 1995 Females African American Asian American Indian 102 10 4 10 9 1 1996: A Police Recruit examination was given in May with 160 applicants testing and 131 passing. April 5, 2002 22 · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · ~1996 160 African Hispanic American Asian ~rnefican Indian 10 4 20 12 4 In November another examination was given with 86 applicants testing and 74 passing. November 1996 Females 86 10 African American 4 Hispanic 5 American Indian Asian 1997: A Police Recruit examination was given in May with 116 applicants being tested and 98 passing. ' 1997 116 African Hispanic American Asian Indian 14 7 4 5 2 In November another examination was given with 221 applicants testing and 177 passing. April 5, 2002 23 November 1997 Females African Hispanic American Asian American Indian 221 21 14 27 10 1 1998: A Police Recruit examination was given in May with 129 applicants testing and 96 passing. Females African Hispanic American Asian American Indian 129 19 11 12 1 2 In November another examination was given with 83 applicants testing and 62 passing. November 1998 Females African Hispanic American Asian American Indian 83 7 8 3 0 1 1999: A Police Recruit examination was given in May with 96 applicants testing and 83 passing. AprilS, 2002 24 ~ ,1999 96 Females African Hispanic American Asian American Indian 7 3 8 0 1 200O: A Police Recruit examination was given in January with 118 applicants testing and 97 passing. 2OO0 Females 118 10 African American Hispanic American Indian 13 0 Asian 0 In August another examination was given with 95 applicants testing and 73 passing. 95 Females African Hispanic American Asian American Indian 14 4 13 2 0 200'1: A Police Recruit examination was given in February with 86 applicant testing and 72 passing. April 5, 2002 25 ~ 2001 African Hispanic American Asian American Indian 86 5 9 0 0 In August another examination was given with 98 applicants testing and 78 passing. 98 Females African Hispanic American Asian American Indian 16 9 13 1 1 April 5, 2002 26 ~ Appendix E Abilene Amarillo Austin Arlington College Station Dallas Baytown E1 Paso Beaumont Gainesville Carrollton Corpus Christi Fort Worth Garland Grand Prairie Grapevine Highland Village Lewisville McKinney Odessa Greenville Richardson Hurst Irving Killeen Lubbock Mesquite Pasadena Plano San Antonio Waco Wichita Falls Source: City of Denton survey, 2002 1999 Texas Police and Fire Clearinghouse survey Note: This list is not inclusive of all Chapter 143 cities April 5, 2002 27 ~ Appendix F Recruiting Fairs and Activities The chart below outlines the recruiting fairs and activities that staff has participated in since 1998 or will be participating in during 2002. Aris and Jazz Festival Denton, TX Austin EMS Conference Austin, TX Baylor University's Career Fair Waco, TX Central Texas College Killeen, TX Cinco de Mayo* Denton, TX Dallas Independent School District Job Fair Dallas, TX Fort Worth Independent School District Job Fair Fort Worth, TX Fuego y Alma Celebration* Denton, TX Golden Triangle Mall Denton, TX Greater Denton Career & Business Fair Denton, TX Juneteenth Celebration* Denton, TX Local Churches* Denton, TX Louisiana Tech Univeristy Ruston, LA MAC3 Job Fair Arlington, TX Mayor's Committee on Persons with Disabilities* Fort Worth, TX McNeese State University* Lake Charles, LA National Forum for Black Public Administrators* Austin, TX NCOA Military Job Fair* Tyler, TX North Louisiana University Monroe, LA Northwestern State University Natachitoches, LA Red River Career Expo Lawton, TX SACUPA* San Antonio, TX Sam Houston State University Huntsville, TX San Antonio EMS Conference San Antonio, TX San Antonio Milita~ Job Fair Randolph AFB, TX Southwest Oklahoma Lawton, OK Southwest Texas Career Day [ San Marcos, TX Southwest Texas State University San Marcus, TX Southwest Texas State University I Abilene, TX St. Mar~'s Coiled;e* San Antonio, TX St. Phiilip's College* San Antonio, TX Stephen F. Austin Career Day Naco[dochas, TX Tarleton State University Stephenville, TX Tarrant County Community College Fort Worth, TX Texas A&M University* Kingsville, TX Texas A&M University* Commerce, TX Texas Collese* San Antonio, TX Texas Woman's University Denton, TX University of North Texas Denton, TX University of Texas at Dallas Richardson, TX University of Texas at San Antonio San Antonio, TX West Central State University Abileoe, TX · · · · · · · *Targeted for protected class individuals April 5, 2002 28 ~